The UN Secretary-General can waive immunity for serious crimes, but few peacekeepers are prosecuted and still fewer convicted as intervention often occurs in countries with failed judicial systems.
The UN was founded as a result of two world wars between 1914 and 1945. One of the organisation’s vital functions is the maintenance of international peace and security, of which peacekeeping missions are a crucial part. But its ongoing failure to prevent and punish sexual abuse and exploitation by peacekeepers of the very people in need of protection undermines the UN’s credibility, effectiveness and values. The victims, often among the world’s poorest and most vulnerable, deserve full accountability for the offences, many of them exceptionally serious.
The fourth of the ten rules in the Code of Personal Conduct for Blue Helmets states:
‘Do not indulge in immoral acts of sexual, physical or psychological abuse or exploitation of the local population or UN staff, especially women and children.’ The UN Conduct and Discipline Unit is tasked with handling allegations of misconduct, including maintaining a ‘misconduct tracking system recording allegations from inception to the closure of cases’. In addition to pre-deployment training (including mandatory training on sexual abuse and exploitation) and awareness raising, preventative measures at field level include ‘restriction of movement, curfews, requiring soldiers to wear uniforms outside barracks, designating off-limit areas, non-fraternisation policies, increased patrols around high risk areas and decentralisation of Conduct and Discipline personnel into locations with a potentially high risk of misconduct’.
Members of peacekeeping forces and UN staff have immunity in countries where they are deployed, so when accusations are made the UN has traditionally relied on the home countries of the suspects to render justice. For UN staff committing serious crimes, the Secretary-General can waive immunity and have them tried in the host country where the crime allegedly occurred, but peacekeeping often takes place in countries with failed judicial systems. Very few UN peacekeepers, police or staff are prosecuted by countries with jurisdiction over the defendants. Even fewer are convicted.
Sexual violence and exploitation by peacekeeping units have been reported in many countries, including Bosnia, Mozambique, Cambodia, East Timor, Iraq, Democratic Republic of the Congo, and Haiti – the abuses occur worldwide. The common theme is impunity and the problem has plagued the UN for decades, but instead of making progress in preventing and punishing sexual violence and exploitation, it has steadily worsened in recent years. This is particularly disturbing in light of the publication of the Zeid report in March 2005, which detailed the organisation’s ‘comprehensive strategy to eliminate future sexual exploitation and abuse in UN peacekeeping operations’.
This resulted in a number of important reforms designed to redress the scourge, but those instituted have clearly failed.
Abuse numbers no one noticed
In the Central African Republic, where the UN turned a blind eye to sex crimes and sought to silence accusers and a whistle-blower, allegations have skyrocketed. As reported in March by Code Blue – a global campaign by AIDS-Free World to end impunity for sexual exploitation and abuse by UN peacekeeping personnel – in The new UN peacekeeper sex abuse numbers no one noticed, the gender violence has increased. When there are no or minimal consequences for misbehaviour, it’s unsurprising that crimes increase. The situation has become so dire and urgent that the UN recently undertook special efforts, including establishing an independent review panel that published a report, Taking Action on Sexual Exploitation and Abuse by Peacekeepers,in December 2015, which stated: ‘the UN must recognise that sexual violence by peacekeepers triggers its human rights mandate to protect victims, investigate, report and follow-up on human rights violations, and to take measures to hold perpetrators accountable.’ It also appointed a special coordinator to improve the UN response to the issue. Further, the Secretary-General issued a report in February 2016 on special measures for protecting and preventing sexual exploitation and abuse.
On 11 March 2016, the Security Council adopted its first ever resolution focused solely on addressing sexual abuse by UN peacekeepers.
SC Resolution 2272 expresses ‘deep concern about the serious and continuous allegations and under-reporting of sexual exploitation and abuse by UN peacekeepers and non-UN forces, including military, civilian and police personnel’. It notes that it is the primary responsibility of troop-contributing countries to investigate and prosecute, where appropriate, their nationals accused of these offences.
Children crowd together in a UN protected camp in the Democratic Republic of Congo. Tales of abduction, torture, rape, ransom and murder are depressingly common in lawless eastern Congo, where former rebels and militia fighters prey on civilians despite the presence of thousands of UN soldiers from the world’s largest peacekeeping mission.
Further, the resolution requests that the Secretary-General replace allmembers of a military or police unit from a troop-contributing country if allegations are not appropriately investigated and, if necessary, prosecuted. Significantly, it also requests that the Secretary-General ‘gather and preserve evidence ahead of investigations of sexual exploitation and abuse in UN peace operations with due consideration for the safety, security and confidentiality of victims to ensure that the concerned UN peace operation takes immediate steps to prevent, including through risk assessments, further incidents of sexual exploitation and abuse, to strengthen the accessibility, coordination and independence of processes for complaint receipt and management and to assist victims, including by maintaining confidentiality, helping to minimise trauma and facilitating access, as appropriate, to immediate care, medical and psychological support’.
In the resolution, Member States are called upon to investigate and hold perpetrators accountable, and to repatriate units ‘when there is credible evidence of widespread or systemic sexual exploitation or abuse’; they are urged to take ‘concrete steps aimed at preventing and combating impunity’ for these crimes. Troop-contributing countries are urged to investigate allegations expeditiously and to hold accountable their nationals responsible, and further to report to the UN on actions undertaken. However, urging individual countries to carry out criminal sanctions warranted under their national laws is insufficient and has proved to be elusive.
While the Security Council should be lauded for finally making a number of important efforts to redress these crimes, it must go further by ensuring enforcement. To provide real justice, there should be military and civilian trials in the country where crimes are committed. Troop-contributing countries should consent to having military and civilian courts, ideally staffed by nationals of the peacekeeping troops, deployed with the peacekeepers and UN civilian staff. These courts must be staffed by professional judges, investigators, prosecutors and defence counsel, thoroughly trained on gender justice.
Imagine in the US or UK, for example, holding a rape trial without access to the victim, the crime scene, or witnesses. Expecting alleged perpetrators to be tried in their home countries, far from where the crimes have taken place, is deeply problematic. The defendant will vehemently deny any wrongdoing. Even if there is a video of the victim or witness testimony, and even if there has been careful evidence gathering and preservation, including possible medical evidence, courts tend to be reluctant to imprison someone for sex crimes without clear and convincing proof beyond reasonable doubt. Any decent legal counsel is likely to be able to convince a judge or jury there is reasonable doubt (be that due to mistaken identity, child testimony not being credible, an alibi, or language or cultural misunderstanding) in all but the most exceptional cases.
“ The Zeid report resulted, more than 11 years ago, in a number of important reforms designed to redress the scourge. Nonetheless, the reforms instituted have clearly failed
Moreover, scores of troop-contributing countries have poor justice systems, and gender crimes frequently are not taken seriously – less so when the alleged offence has taken place elsewhere in the world. Courts err on the side of their own national. That, however, is less likely to occur if the trial is held in the country where the crime was allegedly committed. While language and cultural barriers may still exist, they can be minimised if the trial takes place locally.
Although not included in the resolution, the UN has recently re-floated the idea of setting up in situmilitary courts and requiring peacekeepers to provide DNA pre-deployment. One of the reasons for the DNA is not merely to provide evidence in cases of alleged rape, but also for paternity claims. On-site court martials and preserving DNA evidence were part of the recommendations over a decade ago in the Zeid report. Unquestionably, there are challenges with setting up local courts staffed by internationals, but the stakes are too high to continue to fail to provide some measure of justice to the survivors.
Consider a small sample of heinous cases: in April 2016 Foreign Policyreported that, in the Central African Republic, a French commander tied up four girls and forced them to have sex with a dog. Soldiers from France, Gabon, and Burundi sexually abused at least 108 women and children in a single province. In July 2015, The Washington Postreported that peacekeepers in Haiti engaged in ‘transactional sex’ with over 229 women and girls in exchange for food, medicine, or other necessities.
Most recently, it was published in the The Washington Postin February 2016 that ‘four peacekeepers had allegedly paid girls as young as 13 as little as 50 cents in exchange for sex in a different camp for the internally displaced’ and ‘as many as 14 troops from France, Chad and Equatorial Guinea allegedly raped and sodomised six boys ages nine to 15’.
Kevin Sieff of the The Washington Postreported in February 2016 that a 14-year-old girl who is raising a baby boy born of abuse by a peacekeeper, confided, ‘sometimes when I’m alone with my baby, I think about killing him. He reminds me of the man who raped me’. Known as ‘peacekeeper babies’ some are conceived through rape, others exploitation, as peacekeepers offer the beleaguered and poor basic necessities or a few dollars in exchange for sex. Dave Bryan of the Associated Press reported in April of this year that 11 Tanzanian peacekeepers face paternity claims for sexual exploitation and abuse committed in the Congo.
Gang rape, child and baby rape, prostitution and sex trafficking rings, paedophilia, sexual predators, murder, theft -- the allegations of abuses by peacekeepers and peacekeeping staff have continued unabated for years. Although the UN has a ‘zero tolerance’ policy towards sexual violence, actions speak far louder than words. When ongoing, consistent impunity is the norm, and accountability the rare exception, troops and UN staff hear loud and clear that they can exploit and abuse without repercussion. Merely being sent home – which many fervently want anyway – is insufficient sanction. Moreover, repatriation occurs after the allegations are substantiated, and if not properly investigated or taken seriously, that does not happen.
According to the UN’s Set of Principles to Combat Impunity, victims have the right to know the truth about what happened, the right to justice, and the right to reparations, which includes guarantees of non-recurrence. The UN should uphold its own principles, and provide each of these things to survivors of peacekeeper abuses, not allow perpetrators to hide behind privileges and immunities. The UN Secretary-General reports and other reports by various UN special rapporteurs have increasingly provided statistics on peacekeeper abuse, and more recently are naming and shaming the countries whose nationals have committed abuses. Few locals, however, would have access to this information.
A military and civilian court situated in the country would greatly assist efforts in providing justice for these heinous crimes. A potential model could be the military and civilian mobile courts in eastern Democratic Republic of Congo, which work alongside legal clinics providing various forms of support to victims. The legal clinics are also increasingly partnering with medical clinics. Five judges sit on the military mobile courts, and three judges on the civilian courts. The DRC courts and clinics are staffed by Congolese, not foreigners, but these mobile courts in North and South Kivu have provided access to justice to victims and redressed hundreds of rape cases, including against serial child rapists. They’ve also held (some successfully, some unsuccessfully) rape as crime against humanity trials, for situations of mass rape.
Reparations (restitution, compensation, rehabilitation, satisfaction) should be provided by perpetrators and the UN. When perpetrators are poor, a UN Reparation Fund for Victims of Peacekeeping Abuses could be established. Protection, as well as mental, physical and psycho-social support, can be provided by the UN, along with guarantees the violence will not reoccur. Paternity tests could ensure that fathers contribute financially to children born of rape or sexual exploitation. Formal apologies and possible group or community reparation should also be considered.
The UN’s ongoing, long-term failure to prevent and ensure punishment of human rights violations -- much less horrific crimes -- committed by its troops and staff acting under its authority is huge. The challenges are immense and the solutions daunting. Nonetheless, after decades of sexual exploitation and violence committed by UN troops and civilian staff, impunity must finally, mercifully end.
Kelly Askin was the Senior Legal Officer for International Justice at the Open Society Justice Initiative until July 2015. She is one of three Fellows under the IBA’s newly inaugurated Fellowship for Innovation programme.