“A cancer in our system”:
Accountability
mechanisms for Sexual
Abuses and Exploitation
by UN peacekeepers
Dismantling the culture of impunity
Juliette VIGNES
Masters in International and European Law Public International Law LLM Supervisor: Prof Kevin Jon Heller
Submission: 27th July 2018
When even the guardians have to be guarded, this is a clear sign that something is wrong. The United Nations has set itself as the international guardian of peace and deployed hundreds of peacekeepers to sustain and rebuild the peace in conflict situations. They are deployed on the field to create a secure and stable environment and to promote and ensure respect for the rule of law and human rights. Peacekeepers are seen as protectors and are guided by the “do no harm principle”, as it is their duty to protect the vulnerable and to refrain from doing harm. Yet, the reality is highly different as peacekeepers have been engaging in sexual misconduct for years now. Although the UN has been claiming at zero-tolerance policy since the beginning of the 2000’s, sexual violence by peacekeepers are still happening, yet very few of them have been prosecuted. The international community has implemented a culture of silence, where the protectors have become persecutors. While sexual abuse and exploitation has been prohibited within the UN regulations but also by International Human Rights Law and International Humanitarian Law, the accountability mechanisms seem to be doing nothing but letting peacekeepers walk free.
This research aims at showing that the current accountability mechanisms for peacekeepers committing sexual abuse and exploitation are inefficient. For this purpose, this study firstly uses an explanatory research method to answer why SEA is still happening after thirty years of policy development. The research starts with a case study of the Sangaris case which depicts the reality of unwillingness from both the UN and States to hold peacekeepers to account. Then, it focuses on the legal analysis, which shows a considerable gap between the legal framework created through UN regulations, IHRL and IHL and between the implementation of this framework. The research goes on by analysing the vicious circle created by this failure to prosecute, where victims are left behind. Eventually, this study will move forward to an advisory approach which will suggest potential solutions to tackle the ongoing impunity.
The main outcome of this research is that the accountability mechanisms created by the international community for SEA have led to an accountability gap. Indeed, immunities and jurisdictional agreements have built a legal vacuum regarding jurisdiction where peacekeepers are not prosecuted, neither by the Host States nor by the Sending States. As a consequence, victims are very often not able to seek redress and the impunity remains. There is a real need for a highly effective change.
Abstract...2
Introduction...4
Chapter 1: Case study of the Sangaris Case: an illustration of the international community’s failure towards SEA...8
1.1 The UN’s institutional failure...8
1.2 France’s non-investigation...10
Chapter 2: The legal framework prohibiting sexual abuses and exploitation...12
2.1 UN Regulations on SEA...12
2.2 International Human Rights Law...13
2.3 International Humanitarian Law...14
Chapter 3: Individual responsibility of peacekeepers...15
3.1 Immunities of UN officials...16
3.2 Jurisdictional gap or legal vacuum: Status of Force Agreements (SOFA) and Memorandum of Understanding (MoU)...17
3.2.1 SOFAs and MOU...18
3.2.2 Jurisdictional gap...18
3.3 The controversies arising from this jurisdictional rule...20
Chapter 4: Responsibility of States and International Organisations for their International Wrongful acts, especially sexual abuses and exploitation...21
4.1 The UN legal position...22
4.2 The International Responsibility of the United Nations for the UN officials...22
4.3 The effective control test: responsibility for military personnel borne by States and/or the UN...23
Chapter 5: Consequences of the accountability gap and suggestions to tackle the impunity towards SEA...26
5.1 The vicious circle triggered by the gap in criminal accountability...26
5.2 Recommendations to put an end to impunity...27
5.2.1 A more professional investigative mechanism...27
5.2.2 Creation of a binding agreement...28
5.2.3 Modification of the SOFA and the MOU...28
5.2.4 Individual criminal responsibility: the jurisdictional option of the International Criminal Court (ICC)...29
5.2.5 Creation of a hybrid tribunal/ Special court mechanism...30
Conclusion...32
Bibliography...35
Primary sources...35
Introduction
“The issues with the United Nations is that Peacekeeping Operations unfortunately seem to be doing the same thing that other militaries do. Even the guardians have to be guarded.”1 This summary of the situation by Gita Sahgal, former head of Amnesty International’s Gender Unit, depicts the irony of what has been going on for years now in peacekeeping missions: peacekeepers and military forces being reported as persecutors when they are meant to be protectors.
The United Nations (UN) deploys international missions, known as peace operations on different areas of the world (Bosnia-Herzegovina, Democratic Republic of Congo, Haiti, Cambodia etc.) for different scenarios and activities. Peacekeepers and soldiers are deployed both in situation of armed conflict and situation where there is no (more) armed conflicts, such as in the aftermath of a violent internal conflict. Peacekeeping operations aimed at preserving the peace and assist in the implementation of agreements achieved by peacemakers. They work to help lay the foundations for sustainable peace. Furthermore, UN Peacekeeping missions are usually mandated by the Security Council (UNSC) to play a role in the following areas: Disarmament, demobilization and reintegration of combatants; Mine action; Security Sector Reform and other rule of law-related activities; Protection and promotion of human rights; Electoral assistance; Support to the restoration and extension of State authority.2
As the United Nations do not have its own military forces, it relies on States to contribute by sending personnel to be involved in those peacekeeping operations. The peacekeeping operations involve different categories of personnel such as military, police or civilians. Furthermore, on top of the UN personnel deployed, States also send their own military forces on the field. These forces are not under the command of the UN, although the UN gives its approval for such international intervention.
As set out in the UN Charter, the purposes of the UN are, inter alia, “to maintain international peace and security” and “to achieve international co-operation (…) in promoting and encouraging respect for human rights and for fundamental freedoms for all”.3 The UN 1 Michael J Jordan, 'Sex charges haunt UN forces' [2004] The Christian Science Monitor
2 The United Nations, 'Principles and Guidelines' (United Nations Peacekeeping Operations, 2008) <https://www.un.org/en/peacekeeping/documents/capstone_eng.pdf> accessed 1 June 2018, page 26
peacekeepers are subsidiary organs of the UN and as such they embody the UN values.4 They must “promote and ensure respect for the principles and rules of international law.”5 Additionally, one of their core function is to “create a secure and stable environment while strengthening the State’s ability to provide security, with full respect for the rule of law and human rights.”6
While peacekeepers are deemed to be protectors, there is one current and remaining dark side in peacekeeping missions: sexual violence. Sexual misconduct by UN peacekeepers and soldiers is a widespread and lasting problem which has been occurring for decades. In 2002, the West Africa sex scandal was revealed, where refugee children had been sexually exploited by aid workers and peacekeepers. The revelation prompted an international outcry but eventually the scandal led to very few consequences for the perpetrators. As a matter of fact, very few perpetrators were disciplined, and none were actually prosecuted. Also, no senior managers were held accountable for failing to respond to earlier reports or for their handling of the allegations.7
There are no exact numbers of person being subjected to Sexual Exploitation and Abuse (SEA), although over the last thirteen years, the UN has registered over 2,000 allegations of SEA by UN peacekeepers.8 While the tendency seems to be decreasing, as around 350 allegations were reported to the General Assembly in 2007 for approximately 50 allegations in 2016, the problem of SEA is still ongoing as several abuses have been reported lately, such as in Central African Republic in 2015.9 The different allegations which have emerged over the years dealt not only with rape but also sex trafficking, sexual slavery, child prostitution or even sexual exploitation. Sexual exploitation has been defined by the UN as “any actual or attempted abuse of a position of vulnerability, differential power, or trust, for sexual purposes, including, but not limited to, profiting monetarily, socially or politically from the sexual exploitation of another” and sexual abuse as “the actual or threatened
4 UN Juridical Yearbook 2014 p354 para 6
5 Resolution adopted by the General Assembly on 11 December 2008 A/RES/63/119 6 Supra note 2, page 23
7 Asmita Naik, « The West Africa sex scandal » October 2003, Humanitarian Practice Network
8 Calculations compiled by the Code Blue Campaign based on the annual SG’s special measures’ reports and conduct and discipline Unit Website 2004-2016
9 See graph in Kate Grady, 'Sex, Statistics, Peacekeepers and Power: UN Data on Sexual Exploitation and Abuse and the Quest for Legal Reform' [2016] 79(6) The Modern Law Review 935; Sarah Laville “UN aid worker suspended for leaking report on child abuse by French troops” The Guardian, (29 April 2015)
physical intrusion of a sexual nature, whether by force or under unequal or coercive conditions”.10
A UN investigation has described SEA as being “the most significant risk to UN peacekeeping missions, above and beyond other key risks including protection of civilians.”11 Furthermore, former Secretary-General Ban Ki-moon emphasized that “a single substantiated case of SEA involving UN personnel is one too many”.12 While the UN has been promoting a zero-tolerance policy towards SEA for several years now, it appears quite paradoxically that there is a considerable gap between words and actions, namely between SEA regulations and their implementations, and even more with their enforcements.
As any attempt to regulate a behaviour in a society starts with developing rules to this end, the UN has been issuing different rules prohibiting SEA, starting with the Secretary-General 2003 Bulletin entitled “Special measures for protection from sexual exploitation and sexual abuse”.13 Several documents have followed since, and SEA have been explicitly recognised as violating “universally recognized international legal norms and standards” and as “unacceptable behaviour and prohibited conduct”.14 However, although the rules are clear, situations on the field have undergone weak implementations of such rules but above all, the consequences for perpetrators appear to be largely insufficient or even non-existent.
As a matter of fact, one of the main issue regarding SEA is that alleged offenders are very often not held accountable for their misconduct. SEA is a gross violation of human rights, but States and the UN are very reluctant to find legal responsibility for these serious breaches of human rights. Hence, the international community has created a legal framework which resulted in a jurisdictional gap where immunities and impunity prevail.
The Sangaris case is a good example of this failure to act upon allegations of SEA and to hold persecutors to account. In this case, children from the Central African Republic (CAR) have reported sexual abuses by UN peacekeepers and French soldiers. However, as of now,
10 UNSG Secretary General’s Bulletin: special measures for protection from sexual exploitation and sexual abuse ST/SGB/2003/13 2003 p I
11 Thelma Awori, Catherine Lutz, Paban Thapa, Final Report: expert mission to evaluate risks to SEA prevention efforts (NY, UN 2013) p.9
12 UN Secretary-General (UNSG) Special measures for protection from SEA (NY, UN 2015) p I 13 Supra note 10
no one has been prosecuted or even investigated individually.15 As will be seen in this research, there has been a failure from both the UN and the French government to deal with and investigate these allegations.
This failure depicts the reality of unwillingness of the UN and national governments to hold UN peacekeepers and soldiers accountable for their sexual misconduct. This loophole, which is as much legal than political, leads to an ineffective criminal repression system. Victims are left behind with little or no support and although some substantiated allegations have turned into convictions, the latter are usually so light as to worsen the injustice. As rightly stated, “when peacekeepers exploit the vulnerability of the people they have been sent to protect, it is a fundamental betrayal of trust. When the international community fails to care for the victims or to hold the perpetrators to account, that betrayal is compounded”.16
Consequently, a question arises as to why are the current accountability mechanisms failing to provide an effective answer to SEA by peacekeepers and soldiers?
This research will firstly use an explanatory research method by answering the question: why is this state of affairs still happening? This will be answered by focusing on the gap between policy development at the international level and implementations of SEA legal framework on the field, as well as by delving into the notion of responsibility. Responsibility for SEA by peacekeepers and issues arising from it can be studied through two tracks: individual criminal responsibility and States or International Organisations responsibility. Secondly, this research will take on an advisory approach by making some suggestions on how to regulate the issue of SEA.
Hence, this research will primarily examine the failure of both the UN and the French government to investigate such abuses through the Sangaris case in Central African Republic. It will then study the legal framework prohibiting sexual abuses and exploitation. The third chapter will focus on the individual criminal responsibility of peacekeepers. Subsequently, it will examine the international responsibility of international organisations for their international wrongful acts. Lastly, it will deal with the marginalised group of this failing system, namely the victims, while making suggestions to tackle the ongoing impunity towards SEA.
15 Angelique Chrisafis and Sandra Laville, “No charges sought over abuse claims against French troops in CAR” The Guardian (5 January 2017); Agence France Presse “Case against French troops accused of child rape dismissed” The National (16 January 2018)
16 Marie Deschamps, Hassan B. Jallow and Yasmin Sooka, Taking action on SEA by peacekeepers: report of an
Chapter 1: Case study of the Sangaris Case: an illustration of the
international community’s failure towards SEA
Following leaked files by Anders Kompass, The Guardian disclosed to the world on 29th April 2015, that allegations of SEA from Peacekeepers and French soldiers in Central African Republic had been reported.17 This disclosure attracted a lot of social condemnation as the victims who reported the allegations were children. While the French soldiers were not under the command of the UN but rather under the command of France, the way allegations were handled by the UN or by France actually depicts the reality regarding SEA: no matter how many regulations or how many times the zero-tolerance policy is proclaimed, SEA is still happening, and investigations are still failing. The UN has been pointed at for mishandling the allegations but on its part, France also neglected the case, which resulted in no one being prosecuted.
1.1 The UN’s institutional failure
“Gross institutional failure”; this, is how the UN handle the allegations of SEA in CAR.18 The allegations of sexual misconduct made by the children, involved mainly French soldiers as being perpetrators. Although the soldiers were not under the command of the UN and therefore were not bound by the UN SEA policies, the UN still has an obligation under its human rights mandate, entrenched in its Charter or several Security Council resolutions. Under this obligation, if a victim reports a violation of human rights, the UN must investigate and protect the victims. However, as will be discussed, in the Sangaris case, the UN significantly neglected the allegations.
As a matter of fact, the first allegations emerged around May 2014 and while the Head of the MINUSCA Mission and Special Representative of the Secretary-General had been alerted several times between May and August 2014, he did not act upon it. As a result of his inactions, the Special Representative was asked to resign.19 Moreover, the Human Rights and Justice Section of the UN in CAR did not proceed to extensive investigations nor did it consider necessary to report the urgent allegations to the High Commissioner for Human
17 Supra note 9 18 Supra note 16
19 “UN's CAR envoy Gaye sacked over peacekeeper abuse claims” (BBC, 12 August 2015) <https://www.bbc.com/news/world-africa-33890664> accessed 11 July 2018
Rights in Geneva. The Head of the Section however, advised the Head of Mission not to disclose the allegations but rather to keep it quiet.20
Additionally, the UN did not fulfil its duty of protection of the victims. UNICEF did not follow up on the victims’ situations once it handle the case over to a local NGO. Recently, in February 2018, UNICEF admitted its failure in the humanitarian support to those children.21
Another interesting point is that, when France asked for cooperation in investigating, the UN’s internal services advised the Secretary-General not to waive the immunity of the Human Rights Officer who had interviewed some of the children. It took almost a year for the immunity to be waived so that the Human Rights Officer could participate in the French investigations and for the Sangaris Notes to be transferred to the French authorities.
The continuous mishandling of SEA by the UN can be seen in the way it dealt with Anders Kompass, the Director of the Field Operation and Technical Cooperation Division, who disclosed the Sangaris allegations. Indeed, instead of protecting him as he was an employee, and all the more a senior officer, the UN suspended him and fired him in order to punish him, while all he did was in the interest of victims and did not prejudice the security of the UN nor of the victims. He has since been reintegrated. Additionally, the independent panel denounced the behaviour of Prince Zeid, the High Commissioner for Human Rights for his treatment of the whistle-blower, when one knows that he is the one who wrote the 2005 ground-breaking Zeid Report advocating for more accountability towards SEA.22
Several additional allegations, this time against military peacekeepers serving in the MINUSCA, were revealed in 2016. Those allegations predominantly involved peacekeepers for the Republic of Congo and the Democratic Republic of Congo. Internal case files were disclosed, which showed the blatant mistreatment of 14 of the complaints.23 Those files shed light on bias against victims translated by hostile interviews where victims were surrounded by groups of men in uniform or where they were not properly interviewed by fact-finders.
20 Supra note 16
21
Karen Mc Veigh “UNICEF Admits Failings with Child Victims of Alleged Sex Abuse by Peacekeepers”,The Guardian (13 February 2018)
22 Supra note 16
23 Code Blue Campaign, ‘Leaked Files Reveal Hidden Scope of UN Sex Abuse' (AIDS- Free World,
Codebluecampaign.com, 13 September 2017) <http://www.codebluecampaign.com/press-releases/2017/9/13> accessed 31 May 2018
Additionally, potential corroborating witnesses were not sought out for interviews and factfinders took their time to go on the field. Eventually, the UN did what it does best: repatriation, but said it would occur “after an investigation is carried out”.24As of today, no UN peacekeeper has been prosecuted and no trace of individual investigations can be found.
1.2 France’s non-investigation
On the other side of the case, France played an important part in the non-prosecution of Sangaris soldiers. Indeed, as most of the alleged offenders of the Sangaris case were French soldiers, France had primary jurisdiction to prosecute them. This stems from the fact that it was a non-UN military intervention and from the agreement signed between France and the Central African Republic on the 18th December 2013. Pursuant to Article 3 of the Décret n°
2014-43, the government of the two countries agreed that the French task force would enjoy the same immunities and privileges as those provided to experts on mission under the 1946 Convention on Privileges and Immunities of the United Nations. 25 The agreement also specifies that while French soldiers enjoy immunity on the territory of Central African Republic, they remain under the jurisdiction of France.26 Furthermore, the same Décret sets out that the French military detachment operates in support of the African Union peacekeeping mission to Central African Republic for the fulfilment of its mandate in accordance with the UN Security Council resolutions.
While the world found out about the allegations of SEA in April 2015 through an article in the Guardian, and both the Minister of Defence and the French President Hollande expressed their surprise and future implacability, France had actually been made aware during the summer 2014 when the Permanent Mission of France to the UN handed over the report
24 Conor Gaffey, ‘U.N to Send 120 peacekeepers Home from CAR Amid Fresh Sex Abuse Allegations’,
Newsweek, (2 May 2016)
25 Article 3 of Décret n° 2014-43 du 20 janvier 2014 portant publication de l'accord entre le Gouvernement de
la République française et le Gouvernement de la République centrafricaine concernant le statut du détachement français déployé en République centrafricaine dans le cadre de la mise en œuvre des résolutions du Conseil de sécurité des Nations unies et du rétablissement de la sécurité en République centrafricaine, signé à Bangui le 18 décembre 2013 (Article 3 of Décret n°2014-43 of 20 January 2014 publishing the agreement between the Government of the French Republic and the Government of Central African Republic regarding the French detachment’s status deployed in Central African Republic as part of the implementation of the UNSC’s Resolutions and of the security’s restoration in Central African Republic, signed in Bangui on 18 December 2013)
classified as confidential to the French Ministry of Defence, which transferred it to the prosecuting authorities straightaway.27
The French Prosecutor divided the allegations in three different cases depending on the geographical area, Dékoa, M’Poko (Bangui) and Boda. In Boda, the allegation involved an underage girl who reported that she had been raped by a French soldier and became pregnant as a result. In M’Poko, the case involved SEA reported by around forty children. Hence, the Prosecutor opened a case for “rape committed by a person abusing the authority conferred by his functions.” Pursuant to Article 227-27 of the French Criminal Code, “sexual acts committed without violence or constraint on a minor are punished by three years of imprisonment where they are committed by a person abusing the authority conferred by his functions.”28
The Vice-Prosecutor in charge of military criminal cases is responsible for the prosecution of crimes committed by military forces in foreign operations and thus responsible for the Sangaris case. The investigations are conducted by a special division of the National Gendarmerie (one of the two national police forces in France and a branch of the French Armed Forces), namely Gendarmerie prévôtale, a specific military unit under the authority of the Prosecutor. When the military unit is deployed, it significantly relies on the armed forces to support them. Hence, in this situation where military personnel investigate other military personnel, the question of impartiality arises.
In casu, doubts as regards impartiality can be substantiated by their investigations in CAR. As a matter of fact, in the Boda case, the prosecuting authority sent its request to the CAR for international mutual assistance eight months after being seized of the case. Once the CAR accepted the request, the Gendarmerie prévôtale waited another five months to go onto the field.29 This waste of time is surprising, but the most aberrant part is that they did not deem appropriate to collect samples from the child in order to proceed to a DNA test. Eventually, the Office of the Vice-Prosecutor closed the case without follow up or without even notifying the Prosecutor of Boda.
27
Supra note 9; Kim Willsher and Sandra Laville “France Launches Criminal Inquiry into Alleged Sex Abuse by Peacekeepers”, The Guardian (5th May 2015)28 Article 227-27 French Penal Code 1994
In the M’Poko case, the Gendarmerie prévôtale “could not find any elements to hold the military personnel liable”.30 Hence, the Prosecutor requested the dismissal of the case as he held “we cannot affirm that sexual abuse have been committed”.31 The prosecuting authority did not say it did not happen, but only that they lacked sufficient evidence. The case was closed in January 2018.32
Chapter 2: The legal framework prohibiting sexual abuses and
exploitation
Sexual-related violence have long been prohibited and incriminated in national legislations, however regarding peacekeepers, it took the UN several scandals to start enacting the legal framework which forbids SEA. Before the new millennial, the prohibition of sexual-related violence was purely moral and thus not very a prohibition. Since the West Africa scandal, the UN has built up what could be seen as a strong framework to ensure that peacekeepers would not commit anymore abuse. This legal framework is mainly based on a zero-tolerance policy.
Furthermore, outside of this UN legal framework, peacekeepers are also bound by International Human Rights law (IHRL) and in some cases by International Humanitarian Law (IHL).
2.1 UN Regulations on SEA
The UN started to take into consideration violations by Peacekeepers in 2000, when the Security Council issued Resolution 1325 which called for all parties to an armed conflict to “fully respect international law applicable to the rights and protection of women and girls” and which emphasized “the responsibility of all States to put an end to impunity and to prosecute those responsible for war crimes including those relations to sexual and other violence against women and girls”.33 The Resolution also stressed “the need to exclude these crimes where feasible from amnesty provisions”.34 Nevertheless, this Resolution was intended for “parties to an armed conflict” and thus did not dealt with peacekeeping missions in post armed conflict or in situation of humanitarian crisis, nor was it specifically designed to prevent SEA.
30 Ibid
31 Supra note 15 32 Ibid
33 UNSC Res 1325 (31 October 2000) S/RES/1325 (2000) para 9 34 Ibid, para 11
It was the West Africa scandal in 2002 which triggered massive reactions from the medias, and policies specifically tailored to prevent SEA. Indeed, the Secretary-General issued in 2003 a Bulletin implementing a zero-tolerance policy prohibiting SEA by Peacekeepers and giving definition of sexual abuse and sexual exploitation.35 Later on, in 2005, the UN mandated Prince Zeid to submit a comprehensive report on SEA by Peacekeepers. This report identified four different issues: the rules on standard of conduct, the investigative process, the organizational, managerial and command responsibility, and the individual disciplinary financial and criminal accountability.36
While the report has been qualified as “a candid account of the problem as well as a clear framework for effective action by both the Secretariat and Member States”37, only a few of its recommendations were actually implemented by the UN, such as for instance the creation of Conduct and Discipline Unit receiving allegations of sexual misconduct, the clarification of standards of conduct for civilian and military peacekeepers, or the revision of the MoU. As a matter of fact, in 2007 the MoU was revised to improve accountability. The 2003 Bulletin standards were incorporated so as to be binding on military contingents of UN peacekeepers missions, as they were previously only binding on UN officials. The revision also requires the Troop-contributing country (TCC) to exercise investigative, criminal or disciplinary jurisdiction over its nationals, otherwise the UN has to carry out an administrative investigation.38
A few years after this wave of policy development, the Security Council adopted Resolution 2272 to enable repatriation of contingent’s military and police units if “credible evidence of widespread or systematic” SEA exists.
2.2 International Human Rights Law
Peacekeepers are also bound by International Human Rights Law. Indeed, regarding its application ratione temporis, IHRL applies at all times. Regarding the application ratione personae of IHRL, the UN is not party to international human rights law treaties, but it is
35 Supra note 12
36 Zeid Ra’ad Zeid Al-Hussein, ‘A Comprehensive Strategy to Eliminate Future SEA in UN Peacekeeping Operations,’ UN Doc A/59/710 (New York: UN, 2005)
37 Jean Marie Guéhenno, Presentation by Under-Secretary-General for Peacekeeping Operations to the Security Council, Statement given to the UN Security Council, (New York, 31 May 2005)
bound by customary law. Furthermore, the UN Charter provides for the protection of human rights as set out in Article 1(3), 55(c), and 56.
For military contingents, as mentioned before, the sending State retains jurisdiction over its nationals therefore military members should respect the International Human Rights obligations of their home State.
Article 5 of the Universal Declaration of Human Rights and Article 3 of the European Convention on Human Rights state that “no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment” and rape has been found to fall under this category. Moreover, some regional convention such as the Protocol to the African Charter on Human and Peoples’ Right on the Rights of Women in Africa, or the Inter-America Convention on the Prevention, Punishment and Eradication of Violence against Women prohibit explicitly rape or other forms of sexual violence.39
Additionally, the UN Peacekeeping Operation Principles and Guidelines provides explicitly for the respect and the protection of human rights as it states:
Peacekeeping personnel should strive to ensure that they do not become perpetrators of human rights abuses. They must be able to recognize human rights violations or abuse and, be prepared to respond appropriately within the limits of their mandate and their competence. United Nations peacekeeping personnel should respect human rights in their dealings with colleagues and with local people, both in their public and in their private lives. Where they commit abuses, they should be held accountable.40
However, some difficulties remain regarding IHRL as it does not give rise directly to criminal responsibility of individuals.41 Furthermore, the extraterritorial application of Human Rights obligations of States is not completely settled.
2.3 International Humanitarian Law
International Humanitarian Law applies in situation of armed conflict to protect persons not participating or no longer participating in hostilities. Regarding peacekeeping missions,
39 African Union, Protocol to the African Charter on Human and Peoples’ Right on the Rights of Women in Africa, 11 July 2003 Articles 4 and 11; Organization of American States (OAS) Inter-America Convention on the Prevention, Punishment and Eradication of Violence against Women, 9 June 1994, Articles 2 and 7
40 Supra note 2 page 15 41 Supra note 23 page 50
IHL will apply to peacekeepers only when they become engaged in hostilities, i.e. when they become a party to the conflict.42
The 1999 Bulletin “Observance by United Nations Forces of International Humanitarian Law” explicitly prohibits at any time and any place “rape; enforced prostitution; any form of sexual assault and humiliation and degrading treatment” for person not or no longer taking part in military operation. Furthermore, the Bulletin emphasized not only that women shall be protected against rape, enforced prostitution of any other form of indecent assault but also that children shall be protected especially against any form of indecent assault.43
IHL is regulated in armed conflict by the Geneva Conventions and their Additional Protocol. Rape and other forms of SEA are prohibited under these conventions, whether it be explicitly or implicitly.44
However, in situations which do not arise to an armed conflict, there is no international body of law under which peacekeepers committing SEA can be prosecuted. Thus, peacekeepers can only be prosecuted under domestic law.
Chapter 3: Individual responsibility of peacekeepers
When peacekeepers engage in SEA, they commit a crime. Thus, one would expect that, as for any other crime, peacekeepers are charged with a criminal sanction. Yet, the reality is much different.
As a matter of fact, although the UN has implemented a legal framework prohibiting SEA based on a zero-tolerance policy, it has also created a strong system of immunity for individuals. This system, along with immunity and jurisdiction agreements with Host States and Sending States, leads to a very controversial jurisdictional gap and a legal vacuum. Hence, individual responsibility of peacekeepers is almost impossible, and impunity of peacekeepers remains.
42 UN Secretary-General Bulletin « Observance by the United Nations forces of International Humanitarian Law » 6 August 1999 ST/SGB/1999/13
43 Ibid, Section 7, para 7.2, 7.3, 7.4
44 See for example International Committee of the Red Cross (ICRC), Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Fourth Geneva Convention), 12 August 1949, 75 UNTS 287, Article 27(2); International Committee of the Red Cross (ICRC), Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977, 1125 UNTS 3, Article 75(2)(b), Article 76(I), Article
3.1 Immunities of UN officials
First of all, Article 105(2) provides that “Representatives of the Members of the United Nations and officials of the Organization shall similarly enjoy such privileges and immunities as are necessary for the independent exercise of their functions in connexion with the Organization”.45
Furthermore, under the 1946 Convention on the Privileges and Immunities of the United Nations, UN personnel are also granted immunity.46 Article V on the 1946 Convention provides that Officials shall “be immune from legal process in respect of words spoken or written and all acts performed by them in their official capacity”.47 Officials include UN Staff and UN Volunteers as specified, respectively, by the UN General Assembly Resolution 76(I) and the UNDP Standard Basic Assistant Agreement.48 The immunity enjoyed by UN Officials only applies “in their official capacity” which entails that it is a functional immunity, as opposed to a personal immunity. These immunities can only be waived by the Secretary-General if “the immunity would impede the course of justice and can be waived without prejudice to the interests of the United Nations.”49 In addition, the 1944 Convention on the Safety of United Nations and Associated Personnel forbids acts against UN and associated personnel, including acts against the person or liberty UN staff or associated personnel.50
Given that UN peacekeepers are subsidiary bodies of the UN, they enjoy immunities as UN officials for their acts performed in their official capacity. Concerning SEA, Miguel de Serpa Soares, the Under-Secretary-General for Legal Affairs and United Nations Legal Counsel has outlined that “criminal acts of sexual exploitation or abuse do not constitute official acts of a United Nations official or expert on mission. Accordingly, no functional immunity exists for such acts.”51 This has also been recalled earlier this year, by the Office of
45 Supra note 3, Article 105(1) and 105(2)
46 UN General Assembly, Convention on the Privileges and Immunities of the United Nations, 13 February 1946
47 Ibid, Article V section 18
48 UN GA Res A/RES/76(I) 7 December 1946 Privileges and Immunities of the Staff of the Secretariat of the United Nations and UNDP Standards Basic Assistant Agreement Article IX (as UN Volunteer is administratively part of UNDP)
49 Supra note 47 Article V section 20
50 UN General Assembly, Convention on the Safety of United Nations and Associated Personnel, 9 December 1994 Article 7; Marco Odello, 'Tackling Criminal Acts in Peacekeeping Operations: The Accountability of Peacekeepers' [2010]15(2) Journal of Conflict & Security Law 361
51 Letter from United Nations Under-Secretary-General for Legal Affairs and United Nations Legal Counsel, Miguel de Serpa Soares, to AIDS-Free World Co-Directors, Paula Donovan and Stephen Lewis, 7 July 2017.
the Spokesperson for the Secretary-General who clearly stated: “there is no immunity for sexual abuse.”52
However, in practice, the situation is quite different. First of all, as already said, peacekeepers committing SEA are not protected by immunity, thus there should not be any issue of waiving the functional immunity of peacekeepers.53 Yet, in some situations where SEA allegations emerge, the UN uses a method which approximates the waiving of an immunity. As a matter of fact, if the SEA allegations emerge while performing official functions, then the UN, through the commander, determine the circumstances under which the act occurred.54 This means that, in the case of SEA, while the UN is assessing the circumstances to decide if immunity applies, peacekeepers still enjoy immunity and therefore they are shielded from any external investigations. Furthermore, this assessment takes times, as well as the potential waiving of immunity, hence investigations are flawed from the beginning as in SEA cases particularly, timing is key.
3.2 Jurisdictional gap or legal vacuum: Status of Force Agreements (SOFA) and Memorandum of Understanding (MoU)
One of the most controversial principle regarding individual criminal responsibility for UN peacekeepers is jurisdiction. Indeed, it would appear consistent with principles of international law, such as the principle of sovereignty, that peacekeepers be prosecuted in the Host country. Nevertheless, political motives have led the international community to opt for a controversial rule, and Host State to give up their jurisdiction, as will be seen below.
The different provisions mentioned at part 3.1 above grant immunity to UN officials and thus to UN peacekeepers as subsidiary organ of the UN, although they are not explicitly referred to. Hence, the UN has adopted two legally binding agreements to regulate further peacekeeping missions: Status of Force Agreements and Memorandum of Understanding.
3.2.1 SOFAs and MOU
52 Daily Press Briefing by the Office of the Spokesperson for the Secretary-General, 14 February 2018
53 Code Blue, 'Primer: Privileges and Immunities of the United Nations' (Codebluecampaign.com) <http://www.codebluecampaign.com/primer-privileges-and-immunities-of-the-united-nations/> accessed 15 July 2018
SOFAs are bilateral agreements between the UN and the Host State providing the conditions under which UN forces can be deployed on the territory on the Host State. A SOFA is the basic legal framework for the mission and it regulates the legal relationship between a UN peacekeeping mission and the host State.55 It defines different aspects of the mission such as its status, the status of the mission’s members (including their rights and obligations, immunities, jurisdiction etc.), or the settlement of disputes. The Model SOFA is the template deemed to be legally in force until a specific SOFA for the mission is adopted. The Model SOFA used by the UN was created in 1990 and has not been improved since, although several suggestions have been made by scholars.56
The other document used by the UN is the Memorandum of Understanding (MoU). This is an agreement signed between the UN and the sending state (or troop contributing country) which deals primarily with administrative, logistics and financial terms and conditions under which the forces are deployed.57 Moreover, the MoU also establishes the standards of conduct for the troops.
3.2.2 Jurisdictional gap
The rule regarding jurisdiction for peacekeepers criminal acts can be found in the mission’s SOFA. First of all, the main rule regarding jurisdiction is that UN peacekeepers enjoy immunity in the Host State. Paragraph 46 of the Model SOFA recalls this immunity of “all members of the United Nations peace-keeping operation” from legal process “in respect of words spoken or written and of acts performed by them in their official capacity”.58
Then, with regards to jurisdiction for criminal offences, the SOFA makes a distinction between different categories of personnel. Indeed, if the offender is a member of the civilian component or a civilian member of the military component (ie UN Staff, UN volunteer etc), paragraph 47(a) provides for the Commander to decide whether or not to institute criminal proceedings. As mentioned above, civilian members are covered by the UN functional
55 University of Essex School of Law, ‘UN Peacekeeping and the Model Status of Forces Agreement’, United Nations Peacekeeping Law Reform Project, 2010, p14
56 Ibid, page 46
57 ‘Deployment and Reimbursement’ United Nations Peacekeeping,
<https://peacekeeping.un.org/en/deployment-and-reimbursement> accessed 5 June 2018
58 UNGA “Report of the Secretary-General: Comprehensive Review of the Whole Question of Peacekeeping Operations in all their Aspects; Model Status-of-forces Agreement for Peacekeeping Operations” 9 October 1990, UN Doc A/45/594
immunities provided by the 1946 Convention on the Privileges and Immunities of the UN and by their jurisdictional immunity in the Host State.59
Conversely, in the case of the accused person being a military member of the military component, then the criminal offence falls under the exclusive jurisdiction of the sending state.60 This rule is also recalled in the MoU signed between the UN and the sending State. The main rationale behind this distinction is due to the relation of the UN with its personnel.61 As a matter of fact, the UN does not have its own task forces and therefore it relies on States to send troops. However, the military troops are not considered to be “employee” of the UN but rather as representative of their home State.62 Hence, the relationship with the UN is defined by the MOU which provides that they are subject to “the national military law of the national contingent provided by the government”.63
It is worth nothing that although it is widely accepted and recognised in the Model SOFA that peacekeepers are under the domestic law of the territory of the mission as they shall respect all local laws and regulations, both agreements provide for the exclusive jurisdiction of the sending state regarding criminal behaviour of the military component.
Another point is that the UN does not have any law enforcement power and thus the Secretariat cannot hold a person criminally accountable.64 The organisation can only impose disciplinary sanctions for its personnel such as repatriation or a ban from future peacekeeping operations. Moreover, for military contingents made available by members States, the UN can only take administrative sanctions as the punitive sanctions have to be taken by the contributing country. Therefore, all the UN can do is advising the sending State to take appropriate action against the alleged offender.
3.3 The controversies arising from this jurisdictional rule
59 Prof. dr. Siobhan Wills, 'Continuing Impunity of Peacekeepers: The Need for a Convention' [2013] 4 Journal of International Humanitarian Legal Studies, 48
60 Supra note 59, paragraph 47(b) 61 Odello, Supra note 41 p366
62 UNGA “Note by the Secretariat: Criminal Accountability of the United Nations Officials and Experts on mission”, 11September 2007, UN Doc A/62/329 para 56
63 UNGA Contingent-Owned Equipment Manual 2011 Memorandum of Understanding between the United Nations, 27 October 2011, UN Doc A/C.5/66/8
Although, by entering the SOFA, the Host State agrees to the rule giving jurisdiction to the sending State, it is doubtful whether the Host State really have a say as to whom will have jurisdiction. Indeed, Host State are usually in a very weak position compared to the Sending State and the UN, and thus they are not really in a position of negotiating or refusing the jurisdictional rule as this could prejudice the mission from happening. However, one may still wonder why jurisdiction over criminal acts by military contingents of peacekeepers is held by the sending State and not the Host State, as this precludes the Host State from exercising its jurisdictional claim on the basis of territorial jurisdiction. Several reasons lie behind this controversial issue.
First of all, a political justification would be that troop contributing countries are usually reluctant that their nationals be prosecuted in a foreign jurisdiction. If jurisdiction was held by the Host State, it could deter Member States to send troops and the UN relies particularly on them to provide military contingents.65
Furthermore, most of the States where UN peacekeepers are deployed have little or no legal system, often due to an armed conflict. Hence, a weak legal system could not be able to achieve international legal standards regarding criminal or procedural law, which could entail a violation of peacekeepers’ human rights such as the right to a fair trial. 66 In this regard, the UN has a practice of not waiving immunities of peacekeepers if this would lead to prosecution in some of the host States. Indeed, the UN, in a spirit of protection of its employees, considers that some countries do not have the judicial system meeting the adequate standards of integrity, legitimacy or human rights and therefore believes that it should not waive the UN officials’ immunities.
Conversely, a Group of Legal Expert (GLE) was in support of jurisdiction by the Host State.67 Indeed, they argue that it would be an attribute of the principle of sovereignty to exercise jurisdiction over crimes committed in its territory. Additionally, the GLE has emphasized the fact that most of the witnesses and evidence are likely to be found on its territory as well.68 Another point is that not only would jurisdiction by the Host State be in accordance with the obligation for UN peacekeepers to respect all local laws and regulations,
65 D.W. Bowett, United Nations Forces: A legal study of United Nations Practice (1964) 440 66 Supra note 60
67 UNGA Note by the Secretary-General ‘Ensuring the Accountability of United Nations Staff and Experts on Mission with Respect to Criminal Acts Committed in Peacekeeping Operations’, Report of the Group of Legal Experts, 16 August 2006, UN Doc A/60/980 para 27
but also it would demonstrate the UN’s commitment to the rule of law and would give “the local population a greater sense of justice being done.”69
Furthermore, the jurisdictional legal framework, which gives primary jurisdiction to the sending State, leads to inconsistency in the treatment of peacekeepers. Indeed, while peacekeepers are theoretically meant to be prosecuted in their home countries, in practice, either States fail to prosecute their nationals, or the criminal sanction is different. On one hand, some States do not have extraterritorial jurisdiction for criminal acts committed abroad so they are not able to prosecute, but also some do not have laws prohibiting sexual offences or sexual exploitation. Additionally, other States will only be able to exercise extraterritorial jurisdiction if the crime meets the dual criminality principle; namely that conduct should be a crime in both the host State and the Sending State. This leads to a jurisdictional gap, where neither the Sending State nor the Host State is able to prosecute peacekeepers.
On the other hand, regarding countries who can and do prosecute, the prosecution will mostly be handle by a domestic military tribunal, therefore the outcome will be very disparate depending on each country. Additionally, it seems like troop contributing countries are very often unwilling to prosecute their nationals for criminal acts committed on the field. The rationale behind this could be that, as most of the time the individuals sent on peacekeeping missions are selected by the Government, prosecution would be admitting the State’s failure and thus have an impact on the Government.
Chapter 4: Responsibility of States and International
Organisations for their International Wrongful acts, especially
sexual abuses and exploitation
The second track to analyse whether the accountability mechanisms regarding SEA are efficient aims to focus at the responsibility of States or International Organisations. Indeed, the accountability mechanisms implemented by the international community and especially by the UN, have attempted at establishing the liability of peacekeepers individually. Yet some relevance should be attributed to the responsibility of International Organisations or the Sending states, by making them accountable under the mandates engaging the individuals.
4.1 The UN legal position
First of all, the UN has an international legal personality, as held by the International Court of Justice in its Advisory Opinion for the Reparations for Injury case.70 This entails that the organisation can be the subject of legal attribution for acts attributed to it rather than to its member states. Hence, the UN can be held responsible for those acts.
However, the United Nations enjoys immunity as an international organisation pursuant to Article 105(1) of the UN Charter which provides that “the Organization shall enjoy in the territory of each of its Members such privileges and immunities as are necessary for the fulfilment of its purposes.”71 Furthermore, Article 2 Section 2 of the Convention on Privileges and Immunities provides that “The United Nations, its property and assets wherever located and by whomsoever held, shall enjoy immunity from every form of legal process except insofar as in any particular case it has expressly waived its immunity.”72 Therefore, the UN is immune from legal process in national courts.
4.2 The International Responsibility of the United Nations for the UN officials
The Articles on the Responsibility of International Organisations (ARIO) provide the legal framework to hold International Organisations accountable for international wrongful acts. Article 4 sets out two requirements for a conduct to be considered as an internationally wrongful act: first it has to be attributable to an international organisation and it should constitutes a breach of an international obligation of that international organisation.
Pursuant to Article 6, “the conduct of an organ or agent of an international organisation in the performance of functions shall be considered as an act of that organisation under international law” and Article 2(c) defines an organ as “any person or entity which has that status in accordance with the rules of the organisation.73 Peacekeepers are a subsidiary organ of the UN and as such “an act of a peacekeeping force is in principle imputable to the Organisation”.74 Furthermore, an agent is defined as “an official or other person or entity who is charged by the organisation with carrying out, or helping to carry out, one of its functions,
70 Reparation for injuries suffered in the service of the Nations, Advisory Opinion, ICJ Rep 174, ICGJ 232 (ICJ 1949)
71 Supra note 3, Article 105(1) 72 Supra note 47
73 International Law Commission, Draft Articles on Responsibility of States for Internationally Wrongful Acts, November 2001, Supplement No.10 (A/56/10)
and thus through whom the organisation acts”, thus regarding the UN, its staff, volunteers, civilian police would fall within this definition.75
Additionally, the UN has implemented a distinction for off duty and on duty acts of members regarding ultra vires conduct.76 As a matter of fact, the UN has taken the position that it cannot be held accountable for peacekeepers’ act committed off duty and outline that “the primary factor in determining an “off-duty” situation to be whether the member of a peace-keeping mission was acting in a non-official/non-operational capacity when the incident occurred”. Nonetheless, the UN Office of Legal Affairs conceded that there could be situations where an off-duty acts would entail the UN responsibility, such as in the case of an obligation of prevention’s breach.77 The UN Charter provides for the protection of fundamental human rights and missions’ mandates such as MONUSCO’s require that peacekeepers should “ensure the protection of civilians from violations of international humanitarian law and human rights abuses, including all forms of sexual and gender-based violence, to promote and protect human rights and to fight impunity, including through the implementation of the Government’s “zero-tolerance policy”, hence in case of SEA committed by peacekeepers, the UN could bear some responsibility for breaching an obligation of prevention.78
As regards the breach of an international obligation, Article 11 provides that an act of an IO constitutes a breach of an international obligation if the IO is bound by that obligation at the time the act occurs. Therefore, the question arises as to whether SEA breach an international obligation binding the UN? It remains unsettled whether the UN has any obligation under IHRL or whether peacekeeping mandate constitute “international law”.79
4.3 The effective control test: responsibility for military personnel borne by States and/or the UN
75 Supra note 75 Article 2(d)
76 Ibid, article 8; United Nations, Juridical Yearbook 1986, 300
77 UNGA, International Law Commission, Responsibility of International Organisations, Comments and
Observations received from International Organisations, Comment by the Secretariat of the United Nations:
“There may well be situations involving actions by Force members off duty which the United Nations could appropriately recognize as engaging its responsibility.” 14 February 2011, A/CN.4/637 + Add 1, page 15 para 4 78 UN Security Council Resolution 1925 (2010) UN doc S/Res/1925 (2010) para 12(c)
79 Athena M. Nguyen, 'Sexual Exploitation and Abuses on Peacekeeping Operations ' [2015] 19 Journal of International Peacekeeping 171
Regarding acts performed by military members, another issue arises as to whom are the acts imputable to; namely the UN or/and States. However, in practice, the matter is not that easily clarified as it should be determined first whether military contingents are under the control of the UN or the States. The process of determining who bears responsibility is particularly relevant for victims, as responsibility entails redress.
First of all, Article 6 could probably also apply as “Members of the military personnel placed by Member States under United Nations command, although remaining in their national service, are, for the duration of their assignment to the Force, considered international personnel under the authority of the United Nations and subject to the instructions of the Force Commander”.80
Nevertheless, the most relevant factor to determine to whom the acts are imputable is effective control under Article 7 ARIO. The article provides that the conduct of an organ of a State placed at the disposal of an international organisation shall be attributable to that organisation if it exercises effective control over the conduct. The attribution to the international organisation or to the troop contributing country of a specific conduct by peacekeepers is dependent on who retains effective control, as even though the UN has command over the peacekeepers, the sending State retains disciplinary powers and criminal jurisdiction over its nationals. As already said, the UN Legal Counsel stated that acts of peacekeepers, as subsidiary organ of the UN, which violate an international obligation are imputable to the organisation and therefore lead to its international responsibility.81 He also emphasized that ‘the fact that any such act may have been performed by members of a national military contingent forming part of the peacekeeping operation does not affect the international responsibility of the United Nations vis-à-vis third States or individuals.”82 Additionally, in Article 9 of the MoU, the UN and sending State made an agreement regarding distribution of responsibility, that the UN will be liable for loss, damage, death or personal injury caused by personnel send by the TCC unless if it resulted from “the wilful misconduct of the personnel provided by the Government.”
80 UN Secretariat, ‘Responsibility of International Organizations: Comments and Observations Received from International Organizations’, UN Doc A/CN.4/545 (25 June 2004) 17
81 Supra note 75 82 Ibid
The effective control requirement is particularly decisive as regards joint operations. In this type of operations, international responsibility for the conducts of troops will be determined depending on where operational command and control is vested.83 Thus, responsibility will be based on factual criterion. This is also relevant regarding peacekeepers as even though the UN claims that it has exclusive command and control over the peacekeepers, it has to be determined on a case by case basis, after a factual review.
Several case-law, in particular from the ECtHR, are relevant as regards to the effective control test for peacekeepers. First of all, in Behrami and Behrami v. France and Saramati v. France, Germany and Norway, the Court held that the UN “retained ultimate authority and control over KFOR so that operational command only was delegated” and that “UNMIK was a subsidiary organ of the UN, accordingly the impugned inaction was, in principle, attributable to the UN in the same sense.”84 Regarding KFOR, the Court based its decision on the fact that KFOR was exercising lawfully delegated Chapter VII powers of the UNSC. Also, the delegation has been sufficiently defined and KFOR was responsible for reporting to UNSC.85
A subsequent case by the ECtHR, Al-Jedda v. United Kingdom, led the Court to adopt a different decision where it found that the UN did not retain effective control nor ultimate authority and control over the acts and omissions of foreign troops within the Multinational Force.86
While the ECtHR in Behrami and Saramati mainly focused on who is the ultimate responsible, namely either the UN or the States, the Dutch Supreme Court adopted a different approach in Netherlands v Nuhanovic. Indeed, the Supreme Court analysed the attribution of peacekeepers’ misconduct from the lens of effective control but while it found that the Dutch state “had factual control over specific conduct”, the Court also held that ‘international law, in particular Article 7 DARIO in conjunction with Article 48(1) DARIO, does not exclude the possibility of dual attribution of given conduct.”87
83 UN General Assembly, Report of the Secretary General, 20 September 1996, UN Doc A/51/389, paras. 17– 18.
84 Behrami v France and Saramati v. France, Germany and Norway (2007) ECHR, Application Nos 71412/01 and 78166/01, para 58 and 62-63
85 Ibid, para 58 and 61
86 Al-Jedda v. United Kingdom (2011) ECHR Application no. 27021/08, Reports of Judgments and Decisions 2011 para 84
87 Netherlands v Nuhanovic (2013) Supreme Court of the Netherlands, Case no 12/03324, para 3.11.3 and 3.11.2
This acknowledgment of the possibility for dual attribution in International responsibility is a step forward to provide an answer to the accountability gap regarding peacekeepers’ misconduct. As a matter of fact, the decisions regarding effective control, by holding the UN responsible, entailed that victims could only seek redress from the UN, which very often does not provide easily the expected redress. With the possibility of dual attribution and State being held accountable, victims would be able to seek redress from the State, which often has more accountability mechanisms.
Chapter 5: Consequences of the accountability gap and
suggestions to tackle the impunity towards SEA
The loophole created by the accountability gap towards SEA has significant consequences on victims which are being left out. Indeed, when the harm caused is not appropriately addressed, the sense of injustice can intensify the suffering. Hence, it is of paramount importance to address the problematic of impunity for SEA. Although the UN has been trying to remedy to SEA, it has continuously fail owing to the fact that most of its efforts have had very little to no effect. For the accountability gap to be eradicated, the legal framework on SEA needs to change and the UN should be excluded of the legal proceedings for the benefit of an independent panel of experts.
5.1 The vicious circle triggered by the gap in criminal accountability
The current legal framework regarding accountability of peacekeepers not only leads to impunity but also to victims being left out. Amongst all the regulations set out by the UN, only a few actually address the protection of victims. It was only in 2008, while several SEA had been reported since 1990, that the General Assembly introduced the first Comprehensive Strategy on Assistance and Support to Victims of SEA by UN Staff and Related Personnel. This strategy was implemented to ensure the victims would receive appropriate care and assistance.
In 2017, the new Secretary-General made clear that “the dignity of victims must remain sacrosanct and we will work to ensure that their rights are respected as investigations and
accountability processes unfold.”88 However, the lack of accountability of peacekeepers entails that who is precisely a victim is unclear.
Indeed, investigations tend to lack impartiality and objectivity because of the conflicts of interests involved, whether it be on the part of the UN or of the troop-contributing countries. If investigations are not carried out properly and with impartiality, the decision about whether or not to progress an investigation to a prosecution is corrupted. The consequence of perfunctory investigations is that many allegations of SEA are kept hidden or dismissed out of hand. Hence, the numbers of victims actually recognised as such is flawed. The existence of bias is problematic regarding investigations and the role of the UN as administrative investigator has already been challenged.89
Another point is that, from the lens of victims, the unwillingness of the UN to hold peacekeepers accountable results in the UN being seen as on the side on persecutors. This leads to a vicious circle where abused victims are reluctant to report the peacekeepers misconducts because they feel that the UN will not help them, but if perpetrators are not being reported they cannot be punished.
5.2 Recommendations to put an end to impunity
5.2.1 A more professional investigative mechanism
Some interesting suggestions regarding investigations have been made by the independent panel reporting on SEA by international peacekeepers in Central African Republic. First of all, they suggest the creation of a specialised investigatory team.90 This team would be composed of independent experts who are used to investigate on sexual violence. The experts would have to be deployed on the field forthwith and they shall ensure that evidences are preserved, in case of a judicial proceeding.
Furthermore, the independent panel also advocates for more transparency for victims and local population so that they can be aware of what is actually going on with the legal proceedings. The panel also believes that mutual assistance arrangements and commissions rogatoires could ensure easiest collection of evidence in the host country.
88 UN Secretary-General, ‘Special Measures for Protection from Sexual Exploitation and Abuse: a New Approach’ UN Doc A/71/818, 28 February 2017, para 28
89 Codebluecampaign.com, 'A Practical Plan to End Impunity for Peacekeepers Sexual Abuse' (AIDS- Free
World, Code Blue Campaign, 13 October 2016) http://www.codebluecampaign.com/press-releases/2016/10/13
accessed 25 May 2018 90 Supra note 16, page 11
5.2.2 Creation of a binding agreement
Another suggestion to tackle impunity of SEA would be to create a convention, binding on States. This regime would be specifically tailored for sexual misconducts and address SEA as a crime and not just as a disciplinary violation. In order to eliminate some jurisdictional gap regarding accountability for SEA, all troop-contributing countries would have to accept to implement extraterritorial jurisdiction. Also, States ratifying this convention would have to ensure that they can prosecute their nationals under the principle of nationality.
5.2.3 Modification of the SOFA and the MOU
By changing some provisions in SOFAs and MOU, the UN and its Member States could set limitations on immunities for UN civilians and stress that it is only a functional one. Additionally, this would send a message to victims saying that “immunity is not impunity”.91 If the immunity of the UN official is waived, the individual could be prosecuted in the Host State based on the principle of territoriality and of sovereignty. However, if the international community assumes that the Host State has a dysfunctional legal system, based on accurate evidence and not on bias and corruption, then the obligation to prosecute would bear on the sending State.
Nonetheless, the independent legal panel on CAR and the Stimson Group have advocated for prosecution the other way around. Indeed, they have recommended that UN civilians be prosecuted by the sending State based, this time, on the principle of nationality.92 If the contributing State is not willing to exercise jurisdiction then it would be up to the Host State to prosecute the alleged offender. Furthermore, Siobhan Wills also endorsed the position that this mechanism should be extended to military personnel, if the sending State is unwilling or unable to prosecute.93
Yet, in both cases (whether the Host State has primary jurisdiction or whether it is the Sending State) the same problematic arises: what if the Host State is unable to prosecute with due process and enforcement of the international human right standard and the Sending State is unwilling to prosecute because of political motives or because of astounding indifference to sexual violence against women and children?
91 Thesis of Anna Thoms, ‘Criminal Accountability of UN Officials Serving in Peacekeeping Operations with Focus on Sexual Exploitation and Abuse’, University of Uppsala, 2014 p37
92 Supra note 16, page 12 93 Supra note 60, page 77
5.2.4 Individual criminal responsibility: the jurisdictional option of the International Criminal Court (ICC)
Another possibly to tackle to accountability gap regarding SEA by peacekeepers would be to refer the case to the ICC which would thus, trigger the individual criminal responsibility of peacekeepers. This option would be both advantageous and disadvantageous, but it might not be the most adequate one, as the requirements to be met for the ICC’s jurisdiction are high.
First of all, the case can only be referred to if it meets the preconditions to exercise jurisdiction provided by Article 12 of the Rome Statute.94 Then, another requirement to be met in order to trigger the ICC’s jurisdiction is the complementary principle. Indeed, the ICC can only come into play if “the State is unwilling or unable genuinely to carry out the investigation or prosecution” pursuant to Article 17 of the Rome Statute.95 Hence, this would be a good alternative to the jurisdictional gap currently in place. In cases where the Host State is unable to prosecute, and the Sending States is unable or unwilling to prosecute, the case could be referred to the ICC. Additionally, by referring a SEA case to the ICC it would first ensure accountability of peacekeepers but also, it would send a clear message that these crimes are not tolerable anymore.
Nevertheless, some difficulties would arise as regard the threshold of crimes prosecuted as well as the prosecutorial discretion. As a matter of fact, regarding the threshold of crimes, the ICC only prosecute defined types of crime: war crimes, genocide, crimes against humanity and aggression.96 Although Article 7(1)(g) prohibits “rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity” under the crimes against humanity’s category, the latter are defined as “a widespread or systematic attack directed against any civilian population”.97 Hence, the threshold set up by the Rome Statute is higher than the threshold of the 2003 Bulletin defining SEA. It most cases, it is unlikely that SEA committed by peacekeepers could meet this threshold.
94 UN General Assembly, Rome Statute of the International Criminal Court, 17 July 1998, ISBN No. 92-9227-227-6, Article 12
95 Ibid, Article 17 96 Ibid, Article 5 97 Ibid, Article 7
