English
By Alexandros Christodoulides, Analyst KEDISA
In order to reduce human suffering, create better life conditions and build institutions for sustaining peace, the Department of Peacekeeping Operations of the United Nations, deploys international missions known as the Peacekeeping Operations [8]. Member states of the United Nations regularly assign troops in places such as Sierra Leone, Liberia, Rwanda and the Democratic Republic of Congo [10]. However, peacekeepers take advantage of their position of power as they often sexually exploit and abuse the same people they were sent to protect [10]. Sexual misconduct is the most often type of crime committed by UN Peacekeepers, but other types of misconduct also include involvement in weapons trading and gold smuggling [7]. This paper will explore the phenomenon of peacekeepers engaging in sexual misconduct in regions of deployment and explore the proposal of an international prosecutor to have jurisdiction to prosecute and hold peacekeepers who commit sexually related crimes, accountable.
It has been argued that it is paradoxical that the UN is often accused of acts of sexual abuse and exploitation committed by UN Peacekeepers [2]. The sexual abuse of women is the most prevalent offense committed by Peacekeepers, as women are pressured or lured to engage in sexual activity. It has been argued that this occurs usually due to Peacekeepers having access to material resources, which these women often desperately need [1]. Official UN statistics suggest that over the past five years, the UN has received the claims of 612 women and children who say they were victims of abuse, including 353 separate claims against UN staff in peacekeeping operations alone [4]. Allegations of sexual exploitation and abuse have been reported from almost every region in which the UN deploys Peacekeepers such as Cote d’Ivoire, Haiti, Liberia, Somalia, and South Sudan [6].
However, the prosecution of peacekeepers engaging in such acts is a relatively rare event, as most member states do not possess the legislative means to prosecute and usually, they are reluctant to prosecute their own peacekeepers [7]. Furthermore, the current policies do not hold Peacekeepers accountable for their behaviour and do not effectively restrain Peacekeepers from engaging in criminal activity [1]. The 1946 amendment to the Convention on the Privileges and Immunities of the United Nations, grants diplomatic immunity upon UN workers, including Peacekeepers [1][2]. The initial purpose of that amendment was to prevent UN member states from using prosecution as a political weapon against each other, but the unintended outcome was that it provided freedom to Peacekeepers to commit crimes without being held accountable [1].
The feasibility in an International Court or Tribunal, such as the International Criminal Court (ICC), should be explored. The ICC has the jurisdiction to prosecute individuals who have allegedly committed a crime that falls into one of the four categories: crimes against humanity, war crimes, genocide and crimes of aggression. Considering that, scholars have offered an interesting proposal regarding the prosecution of UN Peacekeepers by the ICC, focusing on the concept of ‘crimes against humanity’ [9]. Even though the Rome Statute includes crimes such as enslavement, rape and enforced prostitution in the ‘crimes against humanity’ spectrum, it is specified that such acts are considered crimes against humanity only when they are committed as part of a widespread or systematic attack against any civilian population with knowledge of the attack [9] [11]. It is reportedly stated that crimes committed by UN Peacekeepers tend to be ”isolated and sporadic events of military indifference’’, rather than part of a widespread attack [4]. The academics’ suggestion, was that all crimes that deny their victims’ status as human beings should fall into the category of ‘crimes against humanity’ [9]. That way, if domestic courts fail to prosecute UN Peacekeepers who commit rape or other form of sexual exploitation, the International Criminal Court would have the jurisdiction in doing so [9].
As previously mentioned, even though rape and sexual exploitation are the most prevalent offenses committed by UN Peacekeepers and constitute serious crimes indeed, they would not fall within the ICC’s jurisdiction, as they often occur as isolated events [2] and not sporadically and widespread. It should be noted that even though the conceptual changes in the Rome Statute proposed by the academics might seem as an interesting solution, scholars might have disregarded the difficulty in altering the concept of ‘crimes against humanity’ within a treaty such as the Rome Statute. The Rome Statute has always dictated the structure, function and jurisdiction of the Court. But even if those crimes were to fall within the jurisdiction of the ICC, there are other difficulties with that proposal. In order to investigate and prosecute the offenders, the ICC requires the consent of either the state on whose territory the alleged crimes occurred or the state of nationality of the accused perpetrator [3]. The main issue with this, is that most states are not willing to assist in the prosecution of their own peacekeepers [7]. Reliance on states to investigate and prosecute has resulted in an accountability gap, with perpetrators seemingly going unpunished [6].
This paper had a predominantly exploratory nature as it attempted to explore the phenomenon of UN Peacekeepers engaging in sexual misconduct and address the issue of prosecution of those workers. The consideration of sexually related crimes constituting ‘crimes against humanity’ was examined in order for the ICC to have jurisdiction in prosecuting those offenders. In theory, the idea of a sexually related crimes constituting a ‘crime against humanity’ could be promising in the prosecution of UN Peacekeepers but in practice, there are several issues such as the complications in altering the Rome Statute treaty which seems to be overlooked by academics as well as the unwillingness of Member States of the Rome Statute to prosecute their own personnel.
References
[1] Blau L.G. (2016) ‘Victimising Those they were sent to Protect: Enhancing Accountability for Children born of Sexual Abuse and Exploitation by UN Peacekeepers’. Syracuse Journal of International Law and Commerce 44 (1), 121-148[2] Defeis E.F. (2008) ‘UN Peacekeepers and Sexual Abuse and Exploitation: An End to Impunity’. Washington University Global Studies Law Review 7 (2), 185-214
[3] Jeet C. (2007) ‘International Criminal Justice: Issues and Perspectives’. International Studies 44 (3), 253-263
[4] Johnson L. (2018) ‘Now UN peacekeepers stand accused after 612 cases of sex abuse’ [online] available from: https://www.express.co.uk/news/world/920390/Sexual-abuse-UN-peacekeeper-accused-612-cases
[5] Maogoto J.N. (2000) ‘Watching the watchdogs: holding the UN accountable for violations of International Humanitarian Law by the ‘Blue Helmets”. Deakin Law Review 5, 47-80
[6] Mudgway C. (2017) ‘Sexual exploitation by UN peacekeepers: the ‘survival sex’ gap in international human rights law’. The International Journal of Human Rights 21 (1), 1453-1476
[7] O’Brien M. (2012) ‘Protectors on Trial? Prosecuting Peacekeepers for War Crimes and Crimes against humanity in the International Criminal Court’. International Journal of Law, Crime and Justice 40 (3), 223-241
[8] Odello M.C. (2010) ‘Tackling Criminal Acts in Peacekeeping Operations: The Accountability of Peacekeeping’. Journal of Conflict and Security Law 15 (2), 347-391
[9] Renzo M. (2012) ‘Crimes against Humanity and the Limits of International Criminal Law’. Law and Philosophy 31, 443-476
[10] Spencer S.W. (2005) ‘Making Peace: Preventing and Responding to Sexual Exploitation by UN Peacekeepers’. Journal of Public and International Affairs 16, 167-181
[11] Zwanenburg M. (1999) ‘The Statute of an International Criminal Court and the United State: Peacekeepers under fire?’. European Journal of International Law 10 (1), 124-143