• BJIL

Keeping the Peace?


UNMISS Conducts Riot Control Training Exercise, Juba by United Nations Photo


Article by Julia Bennett,


United Nations (UN) Peacekeepers help countries, such as the Central African Republic and Lebanon, navigate the difficult path from conflict to peace. However, in recent years, a slew of allegations has revealed that UN Peacekeepers have often been a threat to the very populations they are tasked to protect. In 2017, the Associated Press reported that 100 UN Peacekeepers who ran a child sex ring in Haiti over a ten year period faced no prosecution for their unlawful conduct. The situation in Haiti is only the most recent in a series of ongoing underreported abuses. As the UN system grows larger and more complex in nature, the perpetration of such crimes has increased. Continued sexual abuse by UN Peacekeepers is a stark example of the systematic failures of international law.


Local authorities often lack the ability to uphold their own laws and prosecute Peacekeeper violations. By the very nature of their mission, Peacekeepers are stationed in active conflict zones where the rule of law often goes unenforced. The national laws of many countries in which Peacekeepers are stationed are insufficient to or do not address sexual abuse; legal deficiencies, coupled with political and cultural resistance towards prosecuting these sorts of crimes often leave perpetrators of sexual abuse unpunished, and victims without redress. The UN has failed to monitor and follow up on the legal obligations of troop-contributing countries (TCCs).


International law often fails to prosecute Peacekeepers because soldiers operate under an assumption of immunity. Peacekeepers are members of the UN civil service and as such are guaranteed immunity from jurisdictions in any country in the world, for all acts undertaken in service of their mission. The UN justifies this all-encompassing immunity as a way to protect Peacekeepers from superficial or pernicious interference by the relevant host state. However, the current legal framework has permitted the UN’s inability or reluctance to hold Peacekeepers who commit offenses against the civilian population responsible, fostering a culture of impunity. The UN has created a system in which they hold all power, while host states are forced to accept that Peacekeepers can act with immunity within their borders. This state of affairs infringes on host-state sovereignty. The UN is able to assert such power over host states because unlike in bilateral relations, a counterbalance between host states and visiting states does not exist. In bilateral relations, host-states and visiting states have a more balanced relationship because each has diplomats in the other’s country. The impunity of Peacekeepers, coupled with this systemic counterbalance makes it nearly impossible for Peacekeepers to be prosecuted.


In addition, international law provides a series of loopholes through which civilian and military Peacekeepers routinely escape prosecution. For instance, civilian Peacekeepers are exempt from prosecution in local courts for any actions that fall within the purview of their official functions. In theory, because sexual abuse does not fall within the definition of a Peacekeeper’s official functions, host-states should prosecute civilian Peacekeepers engaging in such conduct. However, in reality the existing international legal framework is too weak to enforce local rule of law. Without enforcement through international law, local laws lack the capacity to prosecute. One of the core responsibilities of Peacekeepers is to build rule of law and security institutions in host countries. Thus, fostering a system in which host countries necessarily have difficulty bringing charges against Peacekeepers.


International law and UN regulation lay out conduct for which Peacekeepers can theoretically be punished. The standards of conduct for military Peacekeepers are laid out in two publications: (1) Ten Rules: Code of Personal Conduct for Blue Helmets (the “Code”); (2) United Nations Peacekeeping Standards of Conduct. While both publications prohibit sexual exploitation, Rule 4 of the Code requires that military Peacekeepers “not indulge in immoral acts of sexual, physical or psychological abuse or exploitation.” In comparison, the “Standards of Conduct” explicitly states that the “UN has a zero tolerance policy with respect to sexual exploitation and abuse.”


While the UN lays out the expected conduct of military Peacekeepers, they operate under the exclusive purview of their TCC’s. Therefore, TCCs rather than the UN are responsible for the prosecution of military Peacekeepers. This perpetuates a cycle where victims are too afraid to speak up, which in turn grants Peacekeepers another level of immunity. The UN has attempted to create international laws and regulations to monitor military Peacekeepers. For example, the 2011 Memorandum of Understanding (MOU) and 1990 Status of Forces Agreements (SOFA) act as jurisdiction guides for military personnel. The MOU states that TCCs have “the primary responsibility to prosecute acts of misconduct...by a member of its national contingent”. The SOFA states that host nations must “waive jurisdiction over Peacekeepers for violations of host nation law.”


While TCCs are expected to take responsibility for the actions of military Peacekeepers in host countries, they are under no legal obligation to exercise such jurisdiction. The UN’s sole mechanism of legal accountability over military Peacekeepers is repatriation. However, once repatriation occurs, the TCC has no legal obligation to prosecute the individual or to provide the UN with status updates. Julia Julia Bleckner, a former Human Rights Watch associate and current doctorate student at Yale, suggests that the UN knowingly incorporates immunity into international law under the guise of state sovereignty in order to secure troop contributions from member states.


The laws and policies pertaining to Peacekeeper conduct comprise an ad hoc system that makes their prosecution for sexual abuse nearly impossible. A combination of weak laws and the assumption of state functions by international organizations has resulted in a total lack of accountability under international law. When the UN was created, its drafters did not foresee the necessity of Peacekeepers. Therefore, they had no impetus for drafting Peacekeeper-governing law. Instead, violations by Peacekeepers fall under a combination of general international law frameworks and the development of bilateral and multilateral agreements. This is especially pronounced in the different ways in which international law treats civilian and military Peacekeepers. The application of different laws to each category creates a complex system rife with flaws.


While prosecution of Peacekeepers under a UN Tribunal might seem like a simple solution, international law would not recognize the creation of such a commission. In August 2006, the Group of Legal Experts was appointed by the Secretary General Kofi Annan to create a report on accountability of UN staff. The Group explored feasibility of jurisdiction in an international court or tribunal. International tribunals have authority over crimes including genocide, war crimes, and crimes against humanity. While rape and solicitation of a prostitute are serious offenses, unless undertaken as part of a systematic attack for the advancement of state policy, they would not fall under an international tribunal’s jurisdiction.


Assuming that the international tribunal solution is not feasible, international laws must be strengthened, TCCs incentivized to prosecute crimes, and host nations supported in the enforcement of their laws. A core principle of international humanitarian law and moral responsibility of the UN is the “protection of civilians in armed conflict”. There are currently over 80,000 civilian and military Peacekeepers stationed in over 16 countries. Peacekeeper training, command, and discipline should be centralized in order to facilitate the effectiveness of international law as it applies to them. Under the existing system, TCCs have a near monopoly on these functions, limiting the UN’s ability to enforce international law and internal standards of behavior. However, the U.S. and other powerful member states refuse to grant the UN authority over Peacekeepers. The UN currently lacks the authority to punish, bring criminal charges, or convict Peakeepers who commit offenses such as sexual abuse. In a UN Security Council Press Release, Mr. Rivero, the Peruvian representative, stated that the UN must “implement comprehensive prevention strategies backed by real sanctions” in order to prevent Peacekeeper abuses. Mr. Rivero suggested that a Code of Conduct be annexed to the MOU notifying TCCs of their legal obligations and stressing the primacy of international human rights law, particularly the Universal Declaration of Human Rights.


Sexual abuse of civilian populations by UN Peacekeepers is an ongoing issue. So far, international law has failed to hold them accountable. Peacekeepers continue to abuse local populations shielded by the immunity afforded by international law. Perhaps as public awareness of such abuses grows, incongruity coupled with public demand for redress will force the international legal community to take action where historically they have been silent.


Author

Julia Bennett (J.D. Candidate, Class of 2023) is a Contributor to Travaux. Her interests include human rights law and public policy. Julia graduated from the University of St Andrews in the U.K. with a degree in International Relations and Modern History. Julia is currently working with Berkeley's chapter of the International Refugee Assistance Project.

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