By Selman Aksunger
There has been an alarming rise in the number of sexual exploitation and abuse (SEA) allegations against UN peacekeepers in the last couple years. In addition to famine and insecurity in the conflict zones, sexual violence by peacekeepers aggravated the severe conditions of the victims in Haiti, Somalia, the Democratic Republic of Congo, and recently, in the Central African Republic (CAR). According to a report of an Independent Review =><=, the incidents in the CAR involve at least 150 victims of SEA, which have reignited the discussion about the accountability of UN peacekeepers in relation to such crimes.
Some other examples are, in 1996, Mozambique politician Graça Machel accused the peacekeepers in her country of SEA. In 1999, Kathryn Bolkovac revealed that some UN police officers were involved in the trafficking of young women in Bosnia. With SEA crimes going unpunished for a long time, there is now a generation of ‘peacekeepers’ babies’ in the Democratic Republic of Congo.
Besides the soldiers, there is a big number of UN officials and experts involved in such crimes during peacekeeping mission, and in order to address this legal gap, the General Assembly, at its 61st session in 2006, decided to add to its agenda a draft convention on the criminal accountability of UN officials and experts on mission. =><= The Draft Convention has yet to materialize due to the reluctance of Troop-Contributing Countries (TCC). The General Secretary also promised reforms =><= to improve accountability for abuse by peacekeepers and increased support to victims.
Nonetheless, the envisaged measures are taking too long to materialize at a time when there is clearly an urgent need for quicker investigations and stricter vetting of new UN personnel. The most common measure of accountability is repatriation of the accused person. This measure, however, is only disciplinary in nature and far from being a proper mechanism to hold the accused accountable and provide redress for the victims. Thus, so far neither the UN nor the deployed states have come up with a practical and sustainable way to put an end to the impunity with which so many women and children in conflict zones are subjected to SEA crimes.
No clear legal framework on accountability for crimes committed by UN peacekeepers during peacekeeping missions
The peacekeeping personnel consist of troops and experts that both enjoy immunity from the criminal jurisdiction of the state they are deployed in. The UN usually enters into a bilateral treaty relationship with the territorial state to grant immunity to the peacekeepers. Agreements apply to both military and civilian personnel who are accorded a status equivalent to that of administrative and technical staff under the Vienna Convention on Diplomatic Relations of 1961. In case of an allegation, judicial authorities in the territorial state cannot prosecute the peacekeepers because of immunity. Therefore, seeking accountability in the territorial state is not an open path for the victims of SEA to demand redress.
A second avenue to try could be placing the responsibility on the UN for the private conducts of its peacekeepers in cases when the UN had overall control on the troops. The primary roadblock in proving this accountability is that there is no treaty obligation for the UN to be held responsible for damages resulting from the services rendered by peacekeeping missions. The International Law Commission's Articles on Responsibility of International Organizations
=><= have not entered into force and therefore do not have a binding effect on the UN. Furthermore, the UN is not a party to human rights treaties, which could be used as a source of secondary obligation to prevent crimes against women and children and provide reparation. Regarding a customary rule obligation to prosecute under the auspices of the UN, there is a lack of practice to identify a customary norm on this matter. Without a consistent and uniform practice of states and/or international organization, the grounds for customary rule obligation claims against the UN will be shaky. These gaps in the legal framework demonstrate that relying on UN responsibility for the crimes and misbehavior of peacekeepers is not a proper mechanism for the victims.
Another possibility could be attributing the responsibility to TCC for the crimes committed by their nationals. A well-known case in this regard is that of the Mothers of Srebrenica, who lost husbands and sons in the genocide committed during the Bosnian War. Although in 2008 the Dutch courts found the UN to be immune from jurisdiction, The Hague Appeals Court later, in a civil case, in 2017 delivered a precedent-setting judgment, finding the Netherlands partly liable for the crimes committed in Srebrenica. The Court held that the Netherlands was responsible for the conduct of the Dutch peacekeepers, who were found guilty mainly of neglect. The Court stated that the Dutchbat troops should have known the circumstances. Although the Dutch Court’s decision clearly represents a precedent, it is yet unlikely that all involved states would soon bear responsibility for the misconduct or neglect of their nationals in peacekeeping missions.
Besides, considering the responsibility of UN member states in such criminal cases may bring about a number of negative impacts on the UN from a political viewpoint. If the violations of UN peacekeepers can be attributed to member states one day, the TCC would have a tendency to intervene more in the activities of the Organization. They would also be more reluctant to contribute troops to future peacekeeping missions.
Attributing individual criminal responsibility to peacekeepers at their national courts most likely path by far
Having briefly explained the challenges and legal gaps regarding accountability mechanisms, it is time to explore one of the more likely avenues to ensure accountability for peacekeepers. The only possible way for victims is to seek to attribute individual criminal and civil responsibility to the UN personnel at their national courts. The UN Secretary published =><=, for the first time, the names of the TCC whose nationals are alleged to have sexually abused women and children while acting under the blue helmet. This action has been understood as a green light from the UN to the victims to seek remedies in the national jurisdictions of the TCC. The UN Multidimensional Integrated Stabilization Mission in the CAR has received new allegations of sexual abuse of at least three minors by Mauritanian peacekeepers in southern CAR. The Special Representative of the UN Secretary-General immediately sent a team to identify the perpetrators of these acts and to collect and preserve relevant evidence for prosecution.
In practice, some of the other TCC states, including France, have already launched trials for the crimes in the CAR and other missions =><=. The UN withdrew the Congolese soldiers from the CAR, and the withdrawal decision may allow for further investigations in Congo. However, the expectations need to be kept modest since some of the states do not have extraterritorial application of their criminal law and some have already refused to initiate an investigation into such violations due to a lack of conclusive evidence. There are also serious allegations by an independent panel about senior UN officials abusing their authority by failing to take action against soldiers from France, Equatorial Guinea, and Chad.
In conclusion, there is still uncertainty surrounding the question of whether it would be possible -- and to what extent -- to establish responsibility for the UN or TCC states or to attribute personal liability to peacekeepers in domestic courts. Irrespective of how likely such a mechanism would be to achieve any success, the topic will continue to invite the attention of international lawyers and politicians.
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