By Róisín Burke
Irish Centre for Human Rights, National University of Ireland Galway
In recent months several leaked UN reports revealed that sexual offences by peacekeepers, UN and others, is rampant. This is not a new phenomenon. Sexual exploitation and abuse by UN peacekeepers has been a significant problem for the UN since at least the 1990s. Incidents have included alleged and proven cases of rape, gang rape, pedophilia, prostitution, and other forms of sexual exploitation and abuse across numerous UN operations. Many of the victims have been children. In Haiti in 2012, for instance, the alleged gang rape of an 18-year-old male teenager by five Uruguayan marines and the rape of a 14-year-old boy by two Pakistani police officers were widely publicised by the media. While prosecutions actually occurred in these incidents, in part due to media attention, the ultimate punishments hardly reflected the crimes. In the case of the 18 year old, four of the five Marines were convicted. The Uruguayan court convicted these four marines in March 2013 of “private violence” and “coercion,” much lesser charges than rape or sexual assault, which carried three years to three months imprisonment. The Pakistani police officers were court martialled by Pakistani authorities and were sentenced to only one year’s imprisonment. In most incidents of sexual violence by peacekeepers, however, there is little media attention and no prosecution, leaving victims without access to justice. While the UN has instigated a series of reforms to address the issue, these have not lead to the criminal accountability of perpetrators or redress for victims.
In 2014 a UN expert report on the continued problem of sexual offences by UN peacekeepers, and impunity for such, was leaked. More recently, in May 2015, a UN employee leaked a further report on child sex abuse by French soldiers in the Central African Republic. The latter abuse allegedly took place in an IDP camp and involved young boys between the ages of 8 and 13. The director of field operations for the Office of the High Commissioner for Human Rights, Anders Kompass, who revealed the report, was initially suspended, pending disciplinary hearings, for breach of UN protocols regarding confidential documents; he has since been reinstated due to a ruling by the UN Dispute Tribunal that declared his suspension unlawful. While the soldiers were not under UN employ (i.e. they were not UN peacekeepers), the incident, nevertheless, is reminiscent of previous problems with whistleblower protections, protections that are now supposed to be assured by the UN. Ironically, Kompass’s suspension was authorised by Zeid Ra’ad Al Hussein, the author of infamous ‘Zeid Report,’ the first comprehensive examination of sexual abuse and exploitation by UN peacekeepers in the DRC in 2005. Kompass’s initial suspension may discourage other potential whistleblowers from revealing incidents of sexual abuse and exploitation by UN peacekeepers, or indeed others.
UN Security Council Resolution 1325 was passed in 2000, linking for the first time women’s experiences of conflict to the international peace and security agenda. Resolution 1325, along with its six follow-up resolutions, call for an end to violence against women and girls in conflict and highlighted the importance of women’s equal participation in the maintenance and promotion of peace and security. 2015 is the 15th anniversary of SC Resolution 1325, and this year the Security Council will convene a High-level Review to assess progress at the global, regional, and national levels in implementing the resolution. The issue of sexual violence in the context of peace and security falls under the remit of Resolution 1325 and is likely to be addressed; sexual violence by peacekeepers clearly falls within this. The Secretary-General has commissioned a global study to review progress on the implementation of 1325 and to make recommendations on this. The study will be led by Radhika Coomaraswamy, former Special Representative of the Secretary-General on Children and Armed Conflict and former Special Rapporteur on Violence against Women. In 2015 a review is also being conducted of peace operations and their workings by an appointed expert panel, which no doubt will have implications for the future of peacekeeping.
Sexual violence by peacekeepers and impunity for such should be addressed in the review context given its clear implications for UN peace operations and any restructuring that may occur. These cannot be viewed as separate processes, where women might be bought into the one, but not the other. Both processes have clear relevance to the issue of sexual violence by UN peacekeepers. Pressure is being placed by civil society organisations, such as AIDS Free World, on the UN system, in the context of both reviews, for immunities granted to peacekeepers to be revised in light of impunity for sexual offences. The issue is likely to gain renewed traction given the launch of AIDS Free World’s ‘Code Blue’ campaign last month outside UN headquarters, which has attracted widespread media attention. The launch was joined and supported by significant personalities and experts, including Graça Machel (Former First Lady of South Africa and Mozambique, and author of Impact of Armed Conflict on Children), Lt. Gen. Roméo Dallaire (Force Commander for the UN mission during the Rwandan genocide), Theo Sowa (CEO of the African Women’s Development Fund), Ambassador Anwarul Chowdhury (former Under-Secretary General), and the co-directors of AIDS Free World, Paula Donovan (former senior advisor to the UN Special Envoy for HIV/AIDS in Africa) and Stephen Lewis (former UN Secretary-General’s Special Envoy for HIV/AIDS in Africa and former Deputy Executive Director of UNICEF).
In light of these events and, more significantly, that the issue is likely to feature in discussions of both the 1325 review and the review of UN peace operations, it seems opportune that renewed attention be placed on the issue of impunity for sexual offences by peacekeepers.
To a significant extent the reason that the impunity of UN peacekeepers remains a problem is related to the immunities granted to both civilian and military peacekeepers from the host state’s criminal jurisdiction. These immunities are granted under the 1948 UN Convention on Privileges and Immunities, or the Status of Forces Agreements (SOFAs). Any jurisdictional immunities granted to the UN and its personnel, including military personnel, is based on the theory of functionality, namely enabling the organisation to function free from host state interference. All of the immunities granted draw on Article 105 of the UN Charter. These were never intended to be granted for the personnel advantage of individuals engaging in criminal acts while deployed on UN operations. Certainly, they were not intended to cover sexual offences.
UN Officials and Experts on Mission (Civilians)
There are two primary categories of UN civilian personnel, namely UN officials and experts on mission. UN officials, normal UN civilian staff members, are granted immunity from host state criminal jurisdiction for acts carried out in their ‘official’ capacity under the UN Convention on Privileges and Immunities.
Experts on mission, under the Convention on Privileges and Immunities, are immune from legal process for words spoken or written by them or for any of their acts during the course of their mission. UN experts on mission are generally persons who the UN Secretary General assigns specific tasks for short-term periods.
Waiver of Immunity
The UN Secretary-General can waive the immunity granted to UN officials and experts on mission where he contends the immunity will impede the course of justice. The need to waive should never arise with respect to sexual offences as they are not related to official duties, but reality differs, and waiver does not generally occur. The problem is that this results in a jurisdictional gap when no state can exercise jurisdiction given problems of extraterritorial application of state laws and the system of immunities.
The other difficulty with states, other than the host state, exercising jurisdiction over such crimes is that their laws may not apply extraterritorially to cover sexual offences by UN civilian peacekeepers. The UN has no capacity to exercise criminal jurisdiction. Even if a state’s laws apply extraterritorially, difficulties may arise in conducting an effective investigation in the host state. There may also be issues of dual criminality (which means the offence must be criminalised under the laws of both states), access to witnesses and evidence, cooperation of host states, and so forth.
UN Military Contingent Personnel
SOFAs are bilateral agreements negotiated between the UN and host state, and they regulate the relationship between the host state and UN operations. Under the terms of UN SOFAs, negotiated between the UN and host states, ‘exclusive criminal jurisdiction’ is granted to troop-contributing states over their soldiers for all crimes they commit while deployed to UN operations. Unlike UN civilian personnel, the contributing state’s laws travel with the peacekeeper so that there is no jurisdictional gap per se. The troop-contributing state has jurisdiction. The UN Secretary-General cannot simply waive this absolute form of immunity from host state criminal jurisdiction or the exclusive jurisdiction that is granted to the troop-contributing state. Notably, it will not prevent other states or possibly the International Criminal Court or other such body from exercising jurisdiction over soldiers if this were warranted, because the immunity that is granted is only immunity from the host state’s criminal justice system.
Problems arise when states do not hold soldiers alleged to have committed sexual crimes to account. If it was possible to restrict or waive the immunity granted to soldiers, so that sexual offences are not covered, this could enable the host state to prosecute, or for the matter to be brought to some form of a hybrid court. A restricted form of immunity is granted to soldiers, for instance, under the NATO Status of Forces Agreement. This means that soldiers could be granted full immunity for acts related to their official duties or those only effecting the force, and that criminal acts that are unambiguously unrelated to their duties should never fall under immunity, such as the obvious case of sexual offences. UN SOFAs could conceivably be framed similarly. Further, SOFAs are bilateral agreements negotiated on a case-by-case basis. If there is no SOFA, there should technically be no immunity.
UN reforms have placed increased pressure on states to investigate and prosecute soldiers. General Assembly resolutions have called on states to extend their criminal laws to cover criminal acts by peacekeepers while deployed overseas. But the problem of impunity remains. States remain reluctant to take action against peacekeepers alleged to have committed sexual offences, and to provide the UN with information on said action.
The UN established a group of legal experts to look at the accountability of UN officials and experts on mission for sexual abuse, exploitation, and other serious misconduct. The group of legal experts issued a report in 2006, highlighting a number of possible options for enhancing accountability. They suggested, for example, that a Convention be drawn up to better deal with jurisdiction, definition of crimes, and mutual legal assistance, amongst other issues. Another suggestion was to enhance host state capacity to exercise its own jurisdiction or, failing this, the establishment of a hybrid court. Little action has been taken on these recommendations and the issue remains sitting in the UN Sixth Committee. In turn, the UN could instigate a system of investigation and trial monitoring where soldiers are accused of sexual crimes.
It is hoped that this year’s High-Level Independent Panel on Peace Operations, and the Security Council Resolution 1325 Review, will make recommendations on what further action might be taken to better ensure the criminal accountability of the minority of peacekeepers who violate the rights of the civilians they have been sent to protect. Moreover, it is hoped that the processes spur actual changes in the UN system in the near future and not just further talk.
 See further, R Burke, Sexual Exploitation and Abuse by UN Military Contingents: Moving Beyond the Current Status Quo and Responsibility under International Law (Brill/Martinus Nijhoff, 2014).
 UNSG, A Comprehensive Strategy to Eliminate Future Sexual Exploitation and Abuse in United Nations Peacekeeping Operations, delivered to the General Assembly, UN Doc. A/59/710, 24 March 2005 (hereinafter Zeid Report).
 Model SOFA, UN Doc A/45/594
 Section 18(a), Article V of the CPI
 Section 22, Article VII of the CPI
 Section 20, Article V of the CPI
 Model SOFA, UN Doc A/45/594, Paragraph 47(b); See also, COE Manual/Revised Model MOU, UN Doc A/C.5/63/18, Article 7ter.
 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, UN GAOR, 60th sess, Agenda Item 32, UN Doc A/60/980 (16 August 2006).