LAW640: INTERNATIONAL HUMAN RIGHTS LAW QUEENS UNIVERSITY, KINGSTON

Sexual Exploitation by UN Peacekeepers

Legal Responses
Ian Auld 12 December 2007

Almost every major United Nations peacekeeping mission in the last decade has been compromised by allegations of sexual abuse levelled at peacekeepers. Despite various efforts by the UN to address this problem, the allegations continue to arise and the perpetrators continue to avoid reprimand. This paper will address the shortcomings in the institutional and legal arrangements which allow this to happen and make suggestions for reform that would allow the UN to exercise tighter control on personnel deployed under their mandate and authority.

CONTENTS
1. Introduction ................................................................................................................................................................... 3 2. Sexual Exploitation in Context ............................................................................................................................... 4 3. Root Causes .................................................................................................................................................................... 6 3.1 Slipping Standards of Professionalism in Military Contingents........................................................ 6 3.2 Low Morale ............................................................................................................................................................. 9 3.3 Poor Leadership and Command Structures .............................................................................................. 9 3.4 Political Considerations .................................................................................................................................. 11 4. Lack of Accountability............................................................................................................................................. 11 4.1 Legal Status of UN Peacekeepers ................................................................................................................ 11 4.2 Investigative Difficulties ................................................................................................................................. 14 4.3 Waiving Immunity ............................................................................................................................................ 15 4.5 The Responsibility to Act ............................................................................................................................... 16 5. Improving Current Framework .......................................................................................................................... 17 5.1 The UN Response Thus Far ........................................................................................................................... 17 5.2 UN Codes of Conduct........................................................................................................................................ 17 5.2 The UNDPKO Conduct and Discipline Unit ............................................................................................. 18 5.3 Further Reports and Recommendations ................................................................................................. 19 6. Alternative Legal Mechanisms ............................................................................................................................ 19 6.1 Jurisdiction of the ICC ...................................................................................................................................... 19 7. Establishing a UN Military Law System ........................................................................................................... 22 8. Conclusions ................................................................................................................................................................. 25 Bibliography .................................................................................................................................................................... 27

1. INTRODUCTION

A peacekeeping operation cannot legitimately advise the Government on adherence to international human rights standards and legal and judicial reform if its own peacekeeping personnel are engaging in acts of sexual exploitation and abuse. 1

In November of this year 190 Sri Lankan peacekeepers deployed to Haiti under a Chapter VI UN deployment were repatriated after reports of widespread sexual exploitation of local woman and girls2. This revelation, whilst being tragic, was sadly unsurprising. In fact, over the last 10 years almost every major United Nation peacekeeping mission has been the subject of similar allegations of sexual exploitation. The assistant Secretary General for peacekeeping operations himself admits that sexual exploitation is is either a problem or a potential problem in every single one of [the UN] missions3. The tragedy of these incidents is that they involve such a gross abuse of power and trust, in and amongst some of the worlds poorest and most vulnerable communities. Whilst UN peacekeepers, for the most part, serve diligently in increasingly dangerous and difficult conflict zones, helping to bring stability and hope to people in some of the worlds most instable areas, such abuses have put a stain on the credibility of the Blue Beret, degrading the goodwill that is required for peacekeepers to carry out their mandate effectively. This is further aggravated by the lack of action by the UN in bringing the perpetrators of these crimes to justice and redressing the environment of impunity4 in UN missions that result in the continued occurrence of these incidents. This paper will discuss the legal framework that

UN General Assembly, 59th Session A comprehensive strategy to eliminate future sexual exploitation and abuse in United Nations peacekeeping operations Prince Zeid Raad Zeid Al-Hussein of Jordan: Report to the UN Secretary General, New York, 24 March 2005 2 BBC News Online Sri Lankan Troops abused Haitians 2 November 2007 <http://news.bbc.co.uk/2/hi/south_asia/7075866.stm> 3 BBC News Online UN Troops face child abuse claims 30 November 2006 <http://news.bbc.co.uk/2/hi/americas/6195830.stm> 4 Zeid, op.cit., p.9
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4 applies to cases of sexual exploitation by soldiers operating in UN peacekeeping missions5, highlighting the inadequacy of current mechanisms and suggesting reforms that could be made to give the UN more effective control over soldiers deployed under its moral authority and legal mandate. Ultimately the thesis of this paper is that, to prevent further incidents of sexual exploitation and further degradation to the credibility of UN peacekeeping forces, the United Nations must take a more active role itself in ensuring the discipline and accountability of troops operating under its mandate and moral authority, rather than relying on action by troopcontributing nations.

2. SEXUAL EXPLOITATION IN CONTEXT

The problem of sexual exploitation first became an issue for the UN in the early 1990s when it was alleged that UN personnel had been frequenting brothels in Bosnia that contained prostitutes who had been forced into sex slavery. However, the issue did not gain prominence until 2004, when allegations of widespread and institutional exploitation in the Democratic Republic of Congo (DRC) first arose. These allegations led to UN Secretary General Kofi Annan commissioning a detailed report into the problem. This report by Jordans Prince Zeid Raad Zeid Al-Hussein (the Zeid Report), described widespread and systematic sexual exploitation perpetrated by soldiers from UN mission in the Bunia province of the DRC and highlighted various underlying practical, institutional and legal problems which gave rise to it. Since then, allegations of sexual abuse by UN peacekeepers have surfaced in Cambodia, Bosnia, Kosovo, Eritrea, Haiti, Sierra Leone, Liberia, Ivory Coast and East Timor6. Between May and September of 2004 the UN Department of Peacekeeping Operations (UNDPKO) received 105 complaints of

Sexual exploitation has been carried out by civilian members of UN missions, however, these personnel are subject to a distinct set of legal rules. 6 For detailed accounts of these incidents see M. OBrien Overcoming boys-will-be-boys syndrome: Is prosecution of peacekeepers in the International Criminal Court for trafficking, sexual slavery and related crimes against women a possibility? Masters Thesis, University of Lund, 2004 available online at: <http://www.jur.lu.se/Internet/english/essay/Masterth.nsf/0/74642C18466271E0C1256F63002CB543 /$File/xsmall.pdf?OpenElement>
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5 sexual abuse, 80 of which involved UN soldiers7. The majority of allegations related to sex with minors (45 per cent) and sex with adult prostitutes (31 per cent). Allegations of rape and sexual assault comprised 13 per cent and 5 per cent respectively8. This probably only represents a small percentage of actual cases, with many incidents going unreported due to lack of investigative procedures, lack of motivation to report abuse due to the social stigma that attaches to victims, and lack of financial incentive on the part of prostitutes to stop the practice. Even the list of reported cases is long and tragic, and the action taken against the offenders is unforgivably weak9. Acts of sexual misconduct cover a wide spectrum, from solicitation of adult prostitutes, which may or may not be legal in the host state, to solicitation of sex with minors, to sexual violation and rape. Even where consensual, however, all of these incidents constitute a gross abuse of power, taking advantage of the helplessness and vulnerability of the local population. In conflict situations, where there is an erosion of the social fabric of the community, high levels of extreme poverty, lack of employment opportunity and a high incidence of sexual abuse against woman and children, with rape even being used as a weapon of war to terrorize and humiliate the local population, women are completely powerless to resist exploitation10. For example, in the Democratic Republic of Congo most incidents involved the exchange of money ($1-3 per encounter), food or jobs for sex11, demonstrating the desperation of the women and girls involved. In other cases, UN soldiers have helped to fuel a sex trade which relies on human trafficking and sex slavery. For example in Kosovo, Amnesty International reported that UN soldiers accounted for 20% of the custom at brothels known to contain prostitutes who had been abducted and forced into prostitution by organized criminals12.

Zeid, op cit. p.12 Ibid, p.9 9 see OBrien, op.cit., Part 1 10 Zeid, op.cit. p.10 11 Ibid, p.8 12 BBC News Kosovo UN troops 'fuel sex trade, 6 May 2004, < http://newsvote.bbc.co.uk/mpapps/pagetools/print/news.bbc.co.uk/2/hi/europe/3686173.stm>
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6 The psychological trauma that the victims suffer as a result of these crimes creates a downwards spiral of vulnerability and dependency and victims are often stigmatized and abandoned by their communities, depriving them of the support they need to avoid future exploitation. There have also been reported incidents of the sexual exploitation leading to peacekeeper babies, in which case the mothers are often forced into prostitution in order to gain income to feed their new children. The UN has recognized the problem of sexual exploitation and, as discussed below, has made some efforts to prevent it. However, continuing incidences of sexual exploitation (including two highly publicized incidences this year) suggest, res ipso loquitor, that the prevention measures adopted by the UN thus far are inadequate.

3. ROOT CAUSES
3.1 SLIPPING STANDARDS OF PROFESSIONALISM IN MILITARY CONTINGENTS
The end of the cold-war in 1990 heralded in a new world order of international cooperation and collective security, with the UN playing a lead role. This saw a rapid and dramatic increase in the utilization of UN peacekeeping missions to resolve conflicts round the world, where such missions had, in the past, often been blocked by the competing interests of the two superpowers. Thus in the early 1990s the United Nations undertook peacekeeping missions in the former Yugoslavia, Cambodia, Rwanda, Haiti and Somalia, with a peak in UN peacekeeping personnel numbers in 1993 (figure 1). However, the black hawk down incident in Somalia and the following rapid withdrawal of US troops from that conflict zone instigated a domino effect, with western nations pulling back from their support of UN missions, and the UN as an instrument of peacekeeping generally. As such, troop contributions from those countries shrunk dramatically over the latter half of the 1990s. The need for UN peacekeepers did not decrease however, as conflicts continued to flare in the Balkans, Africa, Haiti and East Timor. The UN was thus left with very few options to maintain the troop numbers it required. As western nations withdrew military support for peacekeeping missions in exchange for increased logistical and financial assistance, the UN has looked increasingly to developing nations to provide the bulk of

7 troops for the new missions. As such, of the top 20 troop contributing nations currently, 10 countries (accounting for 55% of total troop contributions) rank in the bottom third of the world on the UN human development index13 (table1). Whilst there are exceptions to the rule, for the most part forces from developing nations are less well, funded, paid, equipped and trained than those from developed nations. Due to the above factors, these forces usually have lower morale and are more susceptible to corruption. Table 1 below also shows the democracy ranking, sourced from a study by the Economist Intelligence Unit14, this ranking is based on a multitude of factors, including the functioning of government and the rule of law. Many of the troop contributing nations do not themselves have high standards of governance and as such, as discussed below, often fail to take adequate steps to ensure the accountability of their soldiers on deployment. This conclusion is shared by the UN special rapporteur on Torture, Manfred Nowak, who earlier this year publicly criticized the UN recruitment process highlighting concerns about the quality, training and ethics of soldiers as developing nations with questionable human rights records increasingly are tapped for troops for international peacekeeping operations15. This isnt just an issue for the armed forces of developing nations, however, past incidents have involved French, British, Irish, Italian and Danish troops16. In fact, despite more advanced systems of military law, developed nations have also done little to fulfill their obligation to hold soldiers accountable for crimes committed whilst on UN deployment. Thus the problem isnt merely with the standard of troops employed, but rather the mechanisms used to ensure the discipline of these troops when they placed in and amongst such vulnerable populations. Under the current system, the disciplinary procedures employed by contributing nations fail to make soldiers accountable for their actions, leading to what the Zeid report described as an environment of impunity17.

United Nations Development Program Statistics of the Human Development Report available online at < http://hdr.undp.org/en/statistics/> 14 Laza Kekic The Economist Intelligence Units index of democracy in The World in 2007 Economist Newspaper Limited, 2007 15 The Associated Press UN investigator: Troops from armies that abuse, torture should not be peacekeepers International Herald Tribune, 28 July, 2007 16 OBrien op. Cit. 17 Zeid, op.cit. p.10
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Table 1: Troop contributing nations

Pakistan Bangladesh India Nepal Ghana Nigeria Senegal Ethiopia Morocco Benin TOTAL

Troop Contribution Rank 1 2 3 4 6 8 11 12 14 15

Democracy Ranking 113 75 35 126 95 124 94 106 115 71 167

UNHDI Ranking

Troop Contribution 10,603 9,717 9,316 3,674 2,955 2,481 1,934 1,825 1,537 1,319 45,361

% of Total

136 140 128 142 135 158 156 169 126 163 172

13% 12% 11% 4% 4% 3% 2% 2% 2% 2% 55%

FIGURE 1: TAKEN FROM UNDPKO

3.2 LOW MORALE

The conditions under which the UN peacekeepers are deployed are extremely difficult. Missions are invariably undermanned and underequipped and in many of the current UN missions peacekeepers occupy isolated outposts in inhospitable territory for long periods of time with little or no opportunity to contact family at home and with limited access to adequate rest and recreation18. Furthermore peacekeeping missions are often particularly taxing on soldiers who are trained for conventional warfare, particularly where their units are taking casualties and their actions in response are limited by a limited mandate for the use of force and strict rules of engagement19. The dehumanizing effects of daily exposure to the violence inherent to conflict and genocide should also not be overlooked. Whilst these factors cannot be used as an excuse or the unconscionable behavior of the peacekeepers in question, these are issues that the UN must look to resolve if it is to stamp out practices of sexual exploitation.

3.3 POOR LEADERSHIP AND COMMAND STRUCTURES

The first level of disciplinary action must emanate from the military leadership of the contingent in question. However, research has indicated that such action still fails to be taken20. In 1990, when a Cambodian Womans Group first started bringing the problem of sexual exploitation to the attention of senior military and civilian officials in the UN mission, the response was that boys will be boys21. This response is indicative of a general permissive attitude towards sexual deviancy witnessed amongst senior UN military officials in various missions. There is an attitude amongst many military commanders that sexual exploitation, particularly the use of prostitutes, is part and parcel of military operations. The former deputy commissioner of the IPTF in Bosnia stated that When you have 2000 soldiers, mostly male, in a foreign country, problems with prostitution can be expected.22 Another Danish Colonel implicitly excused the

Zeid, op. cit., p.10 Psychologists have indicated that this contributed to various atrocities committed by American soldiers in Vietnam. 20 For specific details of instances where commanders fail to take disciplinary action see OBrien, op.cit. 21 Must Boys be Boys? Sexual Exploitation in UN Missions Refugees International, available online at <http://www.refugeesinternational.org/section/publications/pk_exploit/> 22 Amnesty International, Kosovo (Serbia & Montenegro): So does it mean we have the rights? Protecting the rights of women and girls trafficked for forced prostitution in Kosovo, 6 May 2004, AI Index: EUR 70/010/200, p.46
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10 use of prostitutes by men under his command Soldiers [are] under stress, away from [their] families at home, and cannot be confined to barracks for months and months. The UN has itself recognized the need for greater accountability for officers at all levels, in fact the Special Representative of the Secretary-General for DRC stresses that: emphasis needs to be placed on the accountability of the officers of contingents to which the perpetrators belong, from contingent to company and platoon commanders. The Zeid report mirrors this sentiment in calling for greater accountability for officers and civilian managers who allow those under their command to breach disciplinary standards. The problem is not only with implicit acceptance of unscrupulous conduct either, in fact between January 2004 and August 2006 seven high ranking commanders were themselves repatriated on disciplinary grounds 23. It is obvious from this that the problem runs deep and requires external monitoring and enforcement of disciplinary standards. Even where high ranking officers do in fact wish to impose disciplinary sanctions on those soldiers under their command, they are often blocked from doing so, due to complex command structures. Senior military officers will often be sourced from a different nation than the soldiers who they are being tasked to command. This multi-national makeup of UN missions confuses command responsibility, as although contingent members are under the operational command of the mission head, they remain under the disciplinary jurisdiction of their home nation. National commanders are loath to charge and send troops home, since doing so brings personal disgrace and damage national reputation. Thus there is a tendency to close ranks and protect the offender by intimidating whistle blowers, stalling investigations and failing to refer the case to superiors24. The Special Representative to the Secretary-General (head of the UN mission) for Liberia , Jacques Paul Klein demonstrates the frustration felt by well meaning senior UN officials, who have no authority to ensure the accountability of men under their

U.N. General Assembly, 61st Session Making the standards contained in the Secretary-Generals bulletin binding on contingent members and standardizing the norms of conduct so that they are applicable to all categories of peacekeeping personnel: Report of the group of legal experts (A/61/645), 18 December 2006 24 OBrien, op.cit., p.21
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11 command : I dont have a direct chain of command to contingents. I send recommendations to DPKO but I dont know what happens when soldiers are sent home. Its very frustrating25.

3.4 POLITICAL CONSIDERATIONS

The lack of soldiers available to the UN for peacekeeping missions severely limits the UN in its options for reform, as it must be careful not to alienate the few remaining nations still prepared to provide troops. These political sensitivities operate on many levels and politicize many of the reforms needed to prevent further incidennts; from holding commanders accountable for the actions of their troops, to mandating compulsory training, to reforming the UN structures themselves to allow for greater accountability. Ultimately, it is these political considerations that have hamstrung the UN in any attempt to meet this challenge head-on.

4. LACK OF ACCOUNTABILITY
4.1 LEGAL STATUS OF UN PEACEKEEPERS
United Nations peacekeeping forces are considered a subsidiary organ of the United Nations, established pursuant to a resolution of the Security Council. As such they enjoy the status, privileges and immunities of UN officials provided for in article 105 of the Charter of the United Nations, and the United Nations Convention on the Privileges and Immunities of the United Nations 194626. The legal framework for UN forces is usually made up of the following27: a.) a resolution of the Security Council or the General Assembly; b.) a Status- of- Force Agreement (SOFA) between the UN and the host state; c.) an agreement by exchange of letters or memorandum of understanding (MoU) between each of the participating states and the UN;

25
26

Sarah Martin, Sexual Exploitation in Liberia: Are the conditions ripe for another scandal? Refugees International, 20 April 2004, <www.refugeesinternational.org/cgibin/ri/bulletin?bc=00812&spotlight=1?>

Resolution 22 A (I), article V, section 18 (a) and article VI, section 22 (b).; R. Murphy 'An Assessment of UN Efforts to Address Sexual Misconduct by Peacekeeping Personnel', International Peacekeeping, 13:4 (2006), p.531 - 546 27 Murphy, op.cit. p.539

12 d.). the Force Regulations issued by the Secretary-General. Peacekeepers are subject to the privileges and immunities specified in the SOFA, or if none exists, as is often the case for a substantial period of time before the details of the agreement can be negotiated, the model status-of-force agreement28. Part VIII of the model SOFA , invariably incorporated into the individual agreements, provides that the contributing nation retains criminal jurisdiction over its troops: [The Participating State] agrees to exercise jurisdiction with respect to crimes or offences which may be committed by its military personnel serving with [the United Nations peace-keeping operation]. The mission head, retains operational command over the contingent, thus allowing them to impose some disciplinary measures, such as confining soldiers to barracks and setting certain off limits areas, such as brothels and bars. The Secretary General also retains administrative jurisdiction, which allows them to repatriate offenders. Where an allegation of misconduct is made, the mission head will convene a board of inquiry to investigate. If the board of inquiry determines that there is a reasonable grounds for a charge of serious misconduct, standard procedure is to recommend repatriation.29 From there it is up to the DPKO to recommend that the contributing nation carry out its own investigation and if needs be initiate criminal proceedings. Leaving criminal jurisdiction to home nations is inherently problematic for a number of reasons. As mentioned above, many of the nations currently contributing troops, do not themselves have good records in observing the rule of law. Most developed nations have clearly defined systems of military law, set out in specific legislation (eg. The British Armed Forces Act 2006, the US Uniform Code of Military Justice and our own Armed Forces Discipline Act 1971) which extends criminal jurisdiction to acts committed by military personnel whilst overseas on deployment. Many of the developing nations currently contributing to UN missions, however, do not possess

28 29

Zeid, op.cit., p.11 OBrien, op.cit. p.19

13 such systems30, thus peacekeepers from these nations effectively operate in legal vacuum, not subject to either the local law or the law of their home nation. Even in cases where there is legal jurisdiction, states often fail to exercise this jurisdiction by adequately investigating and prosecuting accused soldiers upon repatriation. Although the UN has the right to repatriate soldiers, they have no authority to ensure that contributing nations follow up on disciplinary or criminal proceedings. The following examples highlight instances where repatriations have occurred but the fate of the soldier concerned is unsure. In March 2001, a 12 year old girl asked a Guinean peacekeeper for a ride to Freetown and was subsequently raped by the soldier. The soldier was charged and taken to court, but the local police did not pursue the case, and the soldier was repatriated. It is not known if any disciplinary or prosecutorial action was taken upon his return to Guinea31. In 2001, the UN stated that it intended to investigate cases alleging that seven Danish peacekeepers had sexually abused a 13 year old Eritrean girl. The Danish government investigated the incidences, but had found no evidence of abuse. However some of the soldiers were repatriated and fined for minor offences, begging the question as to what evidence was in fact unearthed to justify this limited sanction32. The inherent lack of transparency in the prosecution of peacekeepers in military tribunals at home also does little to restore the credibility of the UN in the face of continuing crimes. The UN currently does not have a formal system in place for monitoring the investigations conducted by the contributing nations and ensuring that the contributing nation does in fact instigate criminal

Zeid, op.cit Human Rights Watch, Well Kill You If You Cry: Sexual Violence in the Sierra Leone Conflict, vol.15, No.1 (A), January 2003 p.48 32 UN Wire, UN to investigate alleged sex abuse by peacekeepers, 2 March 2001, <www.unwire.org/UNWire/20010302/13293_story.asp>
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14 or disciplinary proceedings where appropriate33. Thus, once repatriation has been carried out, the United Nations effectively washes its hands of the problem.

4.2 INVESTIGATIVE DIFFICULTIES

The above instances also highlight problems with the current investigative procedure. It must be pointed out that, although the author advocates more effective accountability measures, any procedure must adhere to basic standards of due process. These crimes are inherently difficult to investigate; the victims ore often reluctant to come forward, and where they do there is often little hard evidence to substantiate their allegations. Furthermore as victims are often refugees, caught up in an ongoing conflict, their access to justice is severely limited. Investigative problems are aggravated by the fact that most military contingents dont include an integral MP detachment to follow up on allegations, thus investigations by the contributing state occur on an ad hoc basis, usually some time after the incident occurred and after the soldier in question has been repatriated, if at all34. Investigations conducted by the UN Board of Inquiry often fail to comply with the evidence gathering rules of the contributing countries, thus evidence gained may be inadmissible in resulting criminal proceedings35. Furthermore, the contributing nation will frequently not get access to the entire board of inquiry documentation because of a United Nations policy of not releasing documents that might be used to make claims against the Organization36. Thus, contributing nations view the board of inquiry investigations with skepticism and are often reluctant to use any resulting information for prosecution. The Zeid report recommended an overhaul of investigative procedures. The most important recommendation is the establishment of a permanent UN investigative agency, independent from but linked to the DPKO, which could include legal experts from contingent nations in order to ensure that evidence is gathered in compliance with the laws of that nation37. It also recognises the problem of military contingents closing ranks to protect their own, and
OBrien, op.cit. p.36 Zeid, op.cit. 35 ibid 36 OBrien op.cit. p.34 37 Zeid, op.cit., p.16
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15 recommends that MP units be sourced from different countries than the military contingents in order to allow for impartiality. Furthermore, the report points out the advantages of conducting on-site court martials, both in terms of administering justice, and in being seen to be doing so. However, under the current legal and institutional framework, these would be virtually impossible. Contributing nations would be reluctant to incur the cost and political disgrace of establishing military tribunals on-site, if they even have the capacity to do so at all.

4.3 WAIVING IMMUNITY

A recent report to the General Assembly by a group of legal experts, recommends that the host state should exert criminal jurisdiction whenever possible38. This would require the UN to waive the immunity from criminal jurisdiction discussed above, something that they have been reluctant to do. In a rare case that shows it is indeed possible, however, an allegation of rape by a civilian police officer operating in the East Timor missions led to the Transitional Administrator waiving immunity, resulting in a rape charge, and a trial in Dili District Court39. This is the exception rather than the rule, however, and despite the possibility of waiving immunity, the UN has shown that in the vast majority of cases it will not do so. It may be, however, that, as a matter of law, sexual exploitation is not in fact covered by the immunities usually proffered on UN soldiers. All of the UN documents providing for immunity from prosecution in the host state limit immunity to acts performed in an official capacity. Thus acts of sexual exploitation, inherently outside this capacity, should not be immune from prosecution. The House of Lords in the Pinochet case40 discussed the status of official immunity ratione materiae. Furthermore, the court also found that there were certain crimes to which ratione materiae cannot be applied at all. While the Pinochet case is not precedent binding on any international tribunal, the UN could adopt this legal rationale to waive criminal immunity in

UN General Assembly, 60th Session 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 (A/60/980), 16 August 2006 39 ETAN (Reuters), UN policeman charged with rape in East Timor, 24 August 2001, 40 R v Bow Street Metropolitan Stipendiary Magistrate and Others, ex parte Pinochet (Amnesty International and other intervening) (No.3) [1999] 2 All E.R. 97 (HL)
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16 appropriate cases. The UN has consistently shown a reluctance to do this, however, particularly where the host nation lacks a sufficient system of criminal justice. Furthermore, waiving immunity may result in a political backlash if consent is not given by the contributing nation, for example the US government threatened to withdraw US personnel from East Timor and veto the extension of the peacekeeping mission in Bosnia and Herzegovina unless US personnel were granted full immunity41. This is an acceptable position where, as in most cases, incidents occur in failed states with insufficient criminal justice systems to provide fair and transparent trials that comply with the basic tenets of natural justice. However, immunity from host nation prosecution should not effectively equate to immunity from all prosecution, as currently seems to be the case in practice.

4.4 THE RESPONSIBILITY TO ACT

The customary norms of international human rights relating to the protection of women from sexual and gender based violence are incorporated in a number of International conventions and General Assembly resolutions. Of particular note is Security Council resolution 1325 on Women, Peace and Security. This resolution calls on all parties to armed conflict to take special measures to protect women and girls from gender-based violence, particularly rape and other forms of sexual abuse, and all other forms of violence in situations of armed conflict42. It further emphasizes state responsibility to end impunity and to prosecute those responsible for genocide, crimes against humanity and war crimes, including those relating to sexual and other violence against women and girls. There would be a certain irony if this resolution, intended as it was to cover the parties to conflicts that UN peacekeepers are deployed to resolve, was not enforced by the UN against its own agents. Furthermore, as discussed in Pinochet, there are some crimes which have reached the level of jus cogens, which require states to extradite and prosecute offenders. The rationale behind this rule is that such crimes constitute an affront to humanity itself. A strong argument can be made
Ensuring Accountability, op. cit. S/RES/1325 (2000). See Women, Peace and Security Study submitted to the Secretary-General pursuant to Security Council Resolution 1325 (2000)
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17 that rape and sexual abuse fall into this category, particularly after decisions of the International Criminal Tribunals for the Former Yugoslavia and Rwanda that have found that the prohibition of rape constitutes a customary universal international law43. Thus the UN is under an active obligation at international law to ensure the prosecution of soldiers committing sex crimes.

5. IMPROVING CURRENT FRAMEWORK

5.1 THE UN RESPONSE THUS FAR
On 15 April 2003, following its consideration of the report of the Office of Internal Oversight Services on allegations of sexual exploitation and abuse in West Africa the General Assembly adopted a resolution in which it requested the Secretary-General to take measures to prevent sexual exploitation and abuse in humanitarian and peacekeeping operations. It called upon the Secretary-General and troop-contributing countries to hold those guilty of such acts accountable. This led to a number of UN studies, high level conferences and General Assembly resolutions calling for reform of the system, the most comprehensive of course being the 2005 Zeid report already extensively referenced above. The sections below outline some of the outcomes of this response.

5.2 UN CODES OF CONDUCT

On 15 October 2003 the Secretary-General promulgated detailed rules prohibiting sexual exploitation and abuse. The mission-specific guidelines for troop-contributing countries, annexed to the memorandum of understanding, are starting to include the prohibitions against sexual exploitation and abuse specified in the Secretary Generals Bulletin of 2003, including sex with girls under the age of 18 (regardless of the age of consent in the host nation) and any form of prostitution or sexual relationships with beneficiaries of UN assistance (refugees, and arguably members of war-torn communities). Furthermore, since the allegations of 2003 the UNDPKO has started providing training material and documentation outlining acceptable

See: Prosecutor v Jean Paul Akayesu, ICTR-96-4-1, 2 September 1998; Prosecutor v Zejnil Delalic, Zdravko Mucic, Hazim Delic, Esad Landzo, IT-96-21-T, 16 November 1998; Prosecutor v Anto Furundzija IT-95-17/1-T, 10 December 1998
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18 standards of behavior to contributing nations, although as yet there is no formal requirement for contributing nations to undertake this training pre-deployment. Outlining codes of conduct is a good step in encouraging contributing nations to address the discipline of their troops. However, there is a difference between guidelines and normative rules. A breach of the above guidelines does not correspond to disciplinary sanctions beyond those within the UN jurisdiction already mentioned above (confinement to barracks, repatriation). Furthermore, there is often conflict with the UN codes of conduct and the law of the contributing nation, particularly with regards to marginal cases (i.e. the use of adult prostitutes that may or not have been forced into prostitution44). Therefore, whilst such codes of conduct do indicate a stronger position by the UN, they do not redress any of the legal problems preventing real accountability.

5.2 THE UNDPKO CONDUCT AND DISCIPLINE UNIT

The UNDPKO conduct and discipline unit was established in November 2005 on the recommendation of the Zeid report to provide oversight on the state of discipline in all peacekeeping operations and overall direction for conduct and discipline issues in field missions45.The aim of the conduct and discipline units is twofold; firstly to ensure the application of appropriate disciplinary measures in each of the UN peacekeeping missions, in particular the codes of conduct discussed above; and secondly to oversee the UN response to any allegations of misconduct. In order to achieve this the CDU employs a three level strategy. The first level comprises of prevention measures, including in-mission generic training on prevention of sexual exploitation, awareness campaigns and the provision of better welfare and recreational facilities to redress morale issues. The second level comprises enforcement including; better record keeping, data tracking and reporting; and measures to hold managers accountable for allowing poor discipline. The third level relates to ongoing scrutiny and institutional reform. The establishment of the CDU is promising in that it may lead to greater prevention measures, greater UN involvement in investigations and greater monitoring of
Report of the Group of Legal Experts on ensuring the accountability of United Nations staff and experts on mission with respect to criminal acts committed in peacekeeping operations Report to the General Assembly, New York, 16 August 2006, A/60/980 45 UNDPKO Website <http://www.un.org/Depts/dpko/CDT/about.html>
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19 follow up efforts by contributing nations, mitigating some of the problems noted above. However, once again, although the CDU has the authority to monitor proceedings, it has no authority to actively pursue the outcome of the case once it has been handed over to the contributing nation. Thus although codes of conduct and improved administrative arrangements improve the current framework, they ultimately fail to provide sufficient legal accountability.

5.3 FURTHER REPORTS AND RECOMMENDATIONS

The Zeid report outlined various ways in which the existing framework could be modified in order to ensure compliance. The most important step is ensuring that the UN continues to monitor the outcome of any disciplinary procedures. The Report recommends that troopcontributing nations be made to agree in their Status of Force agreements to report to the Secretary General on the outcome of any disciplinary proceedings. A 2006 report by a group of legal experts on Making Standards Binding46 outlines ways that the UN could incentivize compliance with the 2003 Code of conduct. Firstly if the troop contributing nation fails to fulfill its obligations under the SOFA, the UNDPKO should withhold monetary payments, the rationale being that, as the troop contributing nation has ultimate jurisdiction over their troops they can recoup any monetary loss of the individual soldier. Furthermore, if the same nation continues to fail in their obligations, the UN should either cease using their troops in its missions, or alternatively impose sanctions against that state. These recommendations would add teeth to the CDU and allow the UN to exert real pressure on troop contributing nations to hold their soldiers to account.

6. ALTERNATIVE LEGAL MECHANISMS

6.1 JURISDICTION OF THE ICC

Report of the Group of Legal Experts on making the standards contained in the Secretary-Generals bulletin binding on contingent members and standardizing the norms of conduct so that they are applicable to all categories of peacekeeping personnel New York, 18 December 2006, A/61/645
46

20 Given the lack of action by contributing nations, there is an argument that soldiers guilty of sexual exploitation should be tried in the ICC as war criminals47. International Humanitarian Law specifically provides additional protections for civilian woman and children in conflict zones. In particular Article 27 of the Fourth Geneva Convention 1949 provides that Women shall be especially protected against any attack on their honor, in particular against rape, enforced prostitution, or any form of indecent assault. Thus, where IHL applies, sexual assault, and many forms of sexual exploitation, may constitute war-crimes under Art.2(b)(xxii) of the Rome Statute, thus allowing ICC subject matter jurisdiction over such acts. The question remains, however, whether IHL applies to UN peacekeeping operations. The United Nations is not a signatory to any of the conventions relating to IHL. Therefore, we must look to whether there is a customary rule of international law imposing IHL requirements. In August 1999, Kofi Annan released the Secretary-Generals Bulletin on Observance by United Nations Forces of International Humanitarian Law48. The bulletin applies to UN forces when in situations of armed conflict they are actively engaged therein as combatants, to the extent and for the duration of their engagement. They are accordingly applicable in enforcement actions or in peacekeeping operations when the use of force is permitted in self-defence49. It is fairly obvious that where the UN is acting as a true combatant customary IHL norms apply. Examples of such operations are the peace enforcement operations under Chapter VII of the Charter like those Gulf or Korean wars. The question is less clear when the UN force cannot properly be properly described as a combatant. The model status of force agreement recognizes the need for peacekeepers to adhere to the general principles of IHL, which demonstrates that the UN intends that IHL should apply to soldiers operating under its command. In fact, at no point has the UN ever denied the applicability of IHL to its missions. However, UN policy continues to be that, whilst it encourages contributing nations to adhere to IHL, it will not subject itself to full accountability under the relevant conventions. The International Committee of the Red Cross,
OBrien, op.cit. ST/SGB/1999/13, 6 August 1999, 49 Ibid. Section 1, Article 1.1
47 48

21 the body charged with administrating IHL, is of the opinion that the fundamental principles and customary rules of IHL should be made applicable to UN peacekeeping forces50. This is based on a pragmatic approach, given the fine line between peacekeeping and fully fledged military operations. Despite all the above arguments, however, the UN has consistently resisted allowing a norm of customary international law that applies IHL to peacekeepers based purely on their presence in conflict zones. In particular the UN is concerned about peacekeeping forces being labeled as combatants and the effect that this may have on their appearance of impartiality51. Furthermore, some nations have refused to accept the de jure application of IHL to their soldiers in peacekeeping operations, maintaining that references in the SOFA and the Secretary Generals bulletin only serve as guidelines52. It is questionable, therefore, whether there is in fact a customary rule that IHL applies to peacekeeping, outside instances where soldiers are clearly operating as combatants. Although sexual abuse, rape and enforced prostitution classify as acts that can constitute crime against humanity under Art.7(1)(g), in order to be so classified they must be committed as part of a widespread or systematic attack on the civilian population. This requirement is usually interpreted as requiring some kind of organizational sanctioning or, at the very least, complicity53. Although the practice of sexual exploitation is certainly widespread, it is not condoned by the UN and in fact, the UN is actively taking steps to prevent it. Thus it would be difficult to properly describe it as part of a systematic or widespread attack.

The application of the Rome Statute to the vast majority of cases of sexual exploitation is questionable at best and requires imaginative legal reasoning, and a large extension of the current
Umesh Palwankar, Applicability of international humanitarian law to United Nations peace-keeping forces, IRRC no.294, 30 June 1993, pp.227-240; available online at <www.icrc.org.> 51 R. Murphy, United Nations Military Operations and International Humanitarian Law: What Rules Apply to Peacekeepers? 14 Criminal Law Forum, p.154 52 The Australian Defence Force took this stance in relation to their troops deployed in East Timor (OBrien, op. cit. p.30) 53 M. Bassiouni, Crimes Against Humanity in International Criminal Law, Martinus Nijhoff Publishers: Dordrecht, (1999), p236
50

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mandate of the court. Probably the biggest stumbling block to extending the jurisdiction of the
ICC, however, is the reluctance of the court itself to hear such cases. The agenda of the chief

prosecutor prioritises prosecuting the leaders of regimes committing genocide, crimes against humanity and war crimes on a large scale, rather than individuals involved in isolated crimes, and the chief prosecutor has often stated that he will only seek the prosecution of the most egregious crimes54. Thus, unfortunately, unless the approach taken by the court changes dramatically, it is unlikely that the ICC will provide an effective forum for ensuring the accountability of UN personnel committing acts of sexual exploitation.

7. ESTABLISHING AN INTEGRAL MILITARY LAW SYSTEM

When a UN peacekeeping force deploys on a mission, it does so under the command of the UNDPKO, under the mandate of the Security Council and under the moral authority that attaches to the United Nations banner. The host nation does not accept the intervention of a Nigerian, Moroccan or Pakistani force, but a UN one. The conduct of troops in blue helmets reflects more on the UN than it ever will on the contributing nation, and the standard of behavior expected of UN personnel is justifiably high. The discussion above shows that, despite efforts by the UN to outline guidelines and codes of conduct, the standards to which troops are ultimately held are not those of the UN, but those of the troop- contributing nation. Where troops are drawn from nations with such poor records on the rule of law, these standards fall well short. The ongoing poor standards of conduct exhibited by UN soldiers around the world is evidence enough that this system is failing. Furthermore, the above discussion points out how, although improvements to the current system may increase accountability to a certain extent, there will not be true accountability until standards are applied and enforced in a uniform way. In this authors opinion, the system fails because the legal arrangements are inconsistent, difficult to define and poorly applied. If the UN was to administer its own system of military law,

S. Notar Peacekeepers as Perpetrators: Sexual Exploitation and Abuse of Women and Children in the DRC Journal of Gender, Social Policy & The Law, Vol. 14:2, p.422
54

23 in conjunction with contributing nations, uniform standards could be applied to all troops acting under the UN banner, regardless of their home nation, and enforcement could be administered swiftly and directly by the UN via on-site court-martials, thus increasing the deterrence effect and reestablishing credibility within the host nation. The UN General Assembly should draw up a convention codifying disciplinary standards and outlining a standard procedure for dealing with allegations of misconduct. This convention should also obligate parties to amend their domestic legislation to allow for extra-territorial criminal jurisdiction over their armed forces. Troops for peacekeeping operations should then only be sourced from nations that are party to this convention and that have made the requisite reforms. The memorandum of understanding should provide that military members come under the jurisdiction of UN military law when deployed into a foreign country under UN mandate, with the option of withdrawing from this jurisdiction only upon proof of an adequate national system of military law55. The DPKO should establish an integral provost branch, staffed with military police and military prosecutors directly hired by and responsible to the UN. This office should be under the joint responsibility of the DPKO and the Office of Legal Affairs, headed by a judge-advocate general and answerable to the UN Secretary General. Each mission should include a military law office, responsible for following the MP investigation, and if needs be prosecuting breaches of the code. As recommended in the Zeid report, this office should have access to adequate forensic equipment and staffed by experienced investigators wherever possible. This office should be headed by a UN appointed judge-advocate and could effectively step in and replace the CDU detachments in the responsibility for training and community outreach programs. Troop contributing nations should also be encouraged to provide legal advisors to this office to take an active part in the investigation and trial process. Allegations of misconduct should be investigated by this office to the standard of a criminal investigation. Repatriation should not occur until the investigation is complete, allowing for a full

This concession may be required in order to encourage developed nations (particularly the US) to sign on.
55

24 investigation and trial fulfilling due process requirements. Court- martial type hearings should occur on-site a d adhere to universal standards of due process. A finding of guilt should result in repatriation of the offender and a report to the home nation. Sentencing should be laid out in non-binding guidelines within the code, but ultimately left to the discretion of the contributing nation. In this way, state sovereignty is preserved to the largest extent possible, as the ultimate fate of the individual concerned remains in the hands of his home nation, allowing the contributing nation to ignore the finding if they so choose. The hope is that this maintenance of state sovereignty will mitigate political objections, such as those made by the US in refusing the jurisdiction of the ICC. If the home nation wished to contest the courts finding and instead rely on their own investigations as is presently the case they could do so, although hopefully political pressure would negate this option. In order to ensure the effectiveness of the hearing, the UN should monitor and keep records of the sentencing outcomes of each individualscase. Nations found to be consistently failing to bring sanctions to bear on soldiers guilty of misconduct must be censured in some way. For many contributing nations, remuneration from providing military contingents is an important source of revenue, thus threatening to refuse troops from those nations should encourage full participation with the system outlined above. Although this concept may seem politically troublesome on face value, it would only go one step further than the current dual investigation system, from establishing a prima facie case to establishing criminal liability. This would streamline the investigative process hugely, and could ultimately prove less costly than ad hoc investigations by allowing for economies of scale and scope. Applying a standardized legal framework would also ensure that standards of due process were applied, thus allowing for full exoneration of those troops wrongfully accused. Most importantly, it would allow the UN much tighter control on the standards of conduct and discipline of troops operating under its mandate, providing a deterrent effect to prevent further incidents and ensuring that any soldier that breaches the standards is held to account, thus putting an end to the environment of impunity.

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8. CONCLUSIONS
Sexual exploitation scandals have marred virtually every UN peacekeeping mission in the last ten years. These scandals have degraded the credibility of UN peacekeeping forces and made it more difficult for missions to fulfill their mandate. The credibility of the UN is further degraded by the lack of action taken against the perpetrators of these crimes. The root causes of sexual exploitation in the context of peacekeeping include the vulnerability of the victims, the lack of professional standards and low morale of the perpetrators and the lack of effective leadership. Furthermore, the current legal arrangement gives rise to a serious lack of accountability, which in turn gives rise to an environment of impunity. UN peacekeepers are subject to the privileges and immunities of UN officials, thus they are almost invariably immune from prosecution in the host state. Although there is possibility for the UN to waive this immunity in the appropriate circumstances, this is hardly ever done, as crimes are usually committed in the context of failed states without sufficient criminal justice systems. Furthermore, the political implications of waiving immunity are huge. The UN itself also has no criminal jurisdiction over peacekeepers, with the SOFA invariably leaving criminal jurisdiction to the contributing nation. Thus, although the UN can apply codes of conduct on an operational basis, confining soldiers to barracks, or in serious circumstances order the repatriation of peacekeepers, it cannot directly hold peacekeepers to account. Where allegations of misconduct are made the UN will usually conduct a board of inquiry, and if the allegations are substantiated, repatriate the offender and recommend that the contributing state takes action. As developing nations contribute the majority of troops to UN peacekeeping missions, and many of these nations do not have military law systems that allow extra-territorial criminal jurisdiction, many peacekeepers are subject to a legal void. Even where peacekeepers are subject to extraterritorial criminal jurisdiction, investigative problems and lack of political will often (almost always) prevent this jurisdiction from being exercised effectively. Although efforts have been made by the UN to improve this legal framework to improve accountability, the UNs practice of washing its hands of the problem once repatriation has taken place seriously limits the

26 effectiveness of any accountability measures. The fact that incidents of sexual exploitation have continued even since UN efforts to resolve the problem indicates that not enough is being done. The lack of accountability under the present scheme has caused some commentators to suggest that the ICC should extend its jurisdiction to try peacekeepers. However, this court is designed to prosecute large-scale breaches of humanitarian principles, rather than act as a court of first instance for a large number of small criminal claims. In order to maintain its credibility, the UN must ensure that justice to is done, and is seen to be done, swiftly and effectively. The best way to ensure this is to establish a uniform system of military law that can be applied to all UN military personnel in on-site court-martials. The DPKO should establish a military law branch to administer this system including an independent MP contingent directly responsible to the UN. Although this may be politically difficult, allowing contributing nations to opt out, upon proof of an adequate system of domestic military law, and maintaining state sovereignty by allowing contributing nations discretion as to how to deal with an offender will mitigate this. Ultimately, if the UN is as committed a zero tolerance policy on sexual exploitation as it states in various resolutions, it has to be prepared to enforce it.

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BIBLIOGRAPHY
Articles M. OBrien, Overcoming boys-will-be-boys syndrome: Is prosecution of peacekeepers in the International Criminal Court for trafficking, sexual slavery and related crimes against women a possibility? Masters Thesis, University of Lund, 2004 available online at: http://www.jur.lu.se/Internet/english/essay/Masterth.nsf/0/74642C18466271E0C12 56F63002CB543/$File/xsmall.pdf?OpenElement Laza Kekic The Economist Intelligence Units index of democracy in The World in 2007 Economist Newspaper Limited, 2007 Must Boys be Boys? Sexual Exploitation in UN Missions Refugees International, available online at <http://www.refugeesinternational.org/section/publications/pk_exploit/> Amnesty International, Kosovo (Serbia & Montenegro): So does it mean we have the rights? Protecting the rights of women and girls trafficked for forced prostitution in Kosovo, 6 May 2004, AI Index: EUR 70/010/200 Sarah Martin, Sexual Exploitation in Liberia: Are the conditions ripe for another scandal? Refugees International, 20 April 2004, <www.refugeesinternational.org/cgibin/ri/bulletin?bc=00812&spotlight=1?> R. Murphy 'An Assessment of UN Efforts to Address Sexual Misconduct by Peacekeeping Personnel', International Peacekeeping, 13:4 (2006), p.531 546 Human Rights Watch, Well Kill You If You Cry: Sexual Violence in the Sierra Leone Conflict, vol.15, No.1 (A), January 2003 p.48 Umesh Palwankar, Applicability of international humanitarian law to United Nations peace-keeping forces, IRRC no.294, 30 June 1993, pp.227-240 S. Notar Peacekeepers as Perpetrators: Sexual Exploitation and Abuse of Women and Children in the DRC Journal of Gender, Social Policy & The Law, Vol. 14:2, p.422

UN Reports UN General Assembly, 59th Session A comprehensive strategy to eliminate future sexual exploitation and abuse in United Nations peacekeeping operations Prince Zeid Raad Zeid Al-Hussein of Jordan: Report to the UN Secretary General, New York, 24 March 2005 UN General Assembly, 60th Session 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 (A/60/980), 16 August 2006 Women, Peace and Security Study submitted to the Secretary-General pursuant to Security Council Resolution 1325 (2000)

28 UN General Assembly, 61st Session, Report of the Group of Legal Experts on making the standards contained in the Secretary-Generals bulletin binding on contingent members and standardizing the norms of conduct so that they are applicable to all categories of peacekeeping personnel New York, 18 December 2006, A/61/645