Special Measures for Protection from Sexual Exploitation and Abuse in UN Peacekeeping: Can the General Assembly Unite Against Impunity of Military Peacekeepers?

Rembert Boom
July 27, 2016

More than ever, the United Nations relies on armed peacekeeping to promote peace and security. Currently, more than 120 member states contribute about 90,000 troops (peacekeepers) on a voluntary basis to fourteen peacekeeping operations around the globe.[1] Unfortunately, some of these troop contributing countries (TCCs) continue to violate their international obligation to hold their peacekeepers accountable whenever they commit crimes against the local population, whom they are supposed to protect.

In February 2016, UN Secretary-General Ban Ki-moon issued his fourteenth annual report on special measures for protection from sexual exploitation and abuse.[2] Emphasizing the need to address impunity of peacekeepers, the Secretary-General disclosed for the first time the nationalities of all peacekeepers suspected of having committed sex crimes, such as rape.[3] Furthermore, in March 2016, the Security Council requested the Secretary-General to replace the entire national contingent of a TCC whenever it fails to exercise jurisdiction in relation to a peacekeeper.[4]

The introduction of more dedicated measures to ensure individual accountability of peacekeepers remains for now within the remit of the General Assembly. In large part composed of past and present TCCs, the General Assembly has opposed such measures for decades. This Insight provides a brief account of this opposition and suggests the introduction of complementary on-site courts martial to end impunity.

Special Measures for Protection from Sexual Exploitation and Abuse

In his report on special measures for protection from sexual exploitation and abuse, the Secretary-General requested that the General Assembly request that TCCs exercise their jurisdiction in the area of operations (on-site court martial).[5] He also took up a recent recommendation from an independent review on sexual exploitation by international peacekeeping forces in the Central African Republic for the introduction of subsidiary local criminal jurisdiction to ensure the prosecution of peacekeepers that may have committed sex crimes.[6]

The Special Committee on Peacekeeping Operations of the General Assembly (C-34)—delegated with a wide responsibility for peacekeeping affairs and currently composed of more than 150 past and present TCCs[7]—considered the report of the Secretary-General in February and March of 2016.[8] The ensuing report of the C-34 remains silent on either subsidiary local criminal jurisdiction or on-site court martial.[9] In June 2016, the General Assembly adopted this report without a vote.[10] As detailed below, it marks the second time the General Assembly has denied the Secretary-General both accountability measures.

Subsidiary Local Criminal Jurisdiction

In exchange for their troop contributions, member states demand that their peacekeepers receive immunity from the criminal jurisdiction of states in which peacekeeping operations are deployed (host states).[11] Under status of forces agreements, which govern the relationship between the UN and host states, peacekeepers remain subject to the “exclusive jurisdiction” of their TCCs in relation to any criminal offences they may commit.[12] In return, TCCs are subject to an international obligation to exercise this jurisdiction under troop contributing agreements that are presumably concluded between the UN and each TCC for each operation.[13]

Peacekeepers could become subject to local criminal jurisdiction only in exceptional cases. Under the status agreement of the United Nations Assistance Group (UNTAG, 1989–90)—established to facilitate the independence of Namibia from South Africa—immunity of peacekeepers could either be waived by their respective TCC or lifted by a local criminal court whenever TCCs failed to exercise jurisdiction “within reasonable time” and the suspected peacekeepers remained at large in the area of operations.[14]

These limitations on the exclusive criminal jurisdiction of TCCs, agreed to by then Secretary-General Javier Pérez de Cuéllar, were utterly rejected by member states. TCCs refused to enter into contributing agreements with the UN under which they would be obligated to exercise their jurisdiction regarding their peacekeepers in relation to UNTAG and other operations.[15] Furthermore, the General Assembly requested a model to serve as a basis for future ad hoc status agreements.[16] Based on that model, prepared by the Secretary-General in 1990, peacekeepers have enjoyed “absolute and complete immunity from local criminal process” in all operations since UNTAG.[17]

The international obligation of TCCs to exercise jurisdiction in relation to their peacekeepers was eventually reintroduced by the General Assembly in 2006 pursuant to a recommendation by Prince Zeid Ra’ad Zeid Al-Hussein, then adviser to Secretary-General Kofi Annan on sexual exploitation and abuse in UN peacekeeping operations.[18] In 2005, Zeid observed that the UN had been confronted with “ill-discipline” of peacekeepers in every operation since UNTAG, and that TCCs often lacked “the will to court-martial alleged offenders.”[19]

Mandatory On-site Courts Martial

Notably, South Africa did not pursue complementary local criminal jurisdiction to prevent impunity of peacekeepers from the start of the UNTAG status negotiations. At first, it requested that TCCs exercise their jurisdiction in situ in exchange for immunity of peacekeepers from local criminal jurisdiction. This request was denied by then Secretary-General Kurt Waldheim in 1979 because member states were unwilling to contribute peacekeepers if they were required to conduct on-site courts martial.[20]

In 2005, Prince Zeid recommended that, as part of a comprehensive strategy to eliminate future sexual exploitation and abuse in UN peacekeeping, TCCs should exercise their exclusive criminal jurisdiction in situ to ensure the fair and verifiable adjudication of peacekeepers suspected of having committed crimes.[21] Furthermore he suggested the naming and shaming of TCCs that violated their international obligation to report to the UN on their exercise of jurisdiction in individual cases.[22] However, the General Assembly did not adopt either measure.[23] Instead, TCCs were only encouraged to conduct on-site courts martial.[24]

Despite repeated appeals by Secretary-General Ban Ki-moon, it appears that besides South Africa and Pakistan, very few (if any) other TCCs have initiated in-mission trials in the past decade.[25] Apparently, most TCCs consider themselves capable of conducting a fair trial in their home country at all times —a position that has repeatedly been questioned for reasons pertaining to the submission of evidence and the availability of victims and witnesses, including by then Secretary-General Dag Hammarskjöld in his summary study of the first armed peacekeeping operation in 1958.[26]

Complementary On-site Courts Martial

In view of the failure of the General Assembly to adopt any special measures to ensure the criminal accountability of its peacekeepers, the question arises whether it can unite against impunity at all. In February 2016, the Secretary-General appointed Ms. Jane Holl Lute, a former Assistant Secretary-General, as the Special Coordinator to improve the UN response to sexual exploitation and abuse. She leads the latest effort to establish a basis for future cooperation between the Secretary-General and the General Assembly on accountability of peacekeepers.

A veteran of the struggle to end sexual exploitation and abuse, in 2005, Ms. Lute expressed her support for the establishment of on-site courts martial in UN peacekeeping operations.[27] Instead of continuing to pursue the formation of on-site courts martial in all sexual exploitation and abuse cases, Ms. Lute could try to build support within the Secretariat and amongst member states for a measure under which TCCs would be required to exercise their jurisdiction in situ only when they are, in the opinion of the UN-appointed Force Commander of a peacekeeping operation, apparently unable or unwilling to conduct a fair trial in the home country.

Complementary on-site courts martial present a more politically viable alternative to mandatory on-site courts martial, as they, in principle, allow for trials either at home or on-site. First suggested by the late Sir Derek William Bowett in his seminal work United Nations Forces in 1964 as a mechanism to maintain “discipline” and “the good reputation of the Force,” they would assist in ensuring that individual peacekeepers are held accountable for crimes committed against the local population.[28]

About the Author: Rembert Boom is an independent legal consultant and a former legal and policy officer at the Ministry of Foreign Affairs of the Netherlands.

[1] Troops constitute about three-quarters of the total number of uniformed (e.g., troops, police, and military observers) and civilian personnel (e.g., international and local staff and volunteers) involved in UN peacekeeping. See United Nations Peacekeeping Fact Sheet, http://www.un.org/en/peacekeeping/resources/statistics/factsheet.shtml (last visited July 19, 2016).

[2] U.N. Secretary-General, Special Measures for Protection from Sexual Exploitation and Sexual Abuse, U.N. Doc. A/70/729 (Feb. 16, 2016), http://www.un.org/ga/search/view_doc.asp?symbol=A/70/729 [hereinafter Special Measures Report 2016].

[3] Id. at 33–41.

[4] See S.C. Res. 2272, ¶ 2 (Mar. 11, 2016).

[5] Special Measures Report 2016, supra note 2, ¶ 98(e).

[6] See id. ¶ 97; Marie Deschamps et al., Taking Action on Sexual Exploitation and Abuse by Peacekeepers: Report of an Independent Review on Sexual Exploitation and Abuse by International Peacekeeping Forces in the Central African Republic 87–88 (Dec. 17, 2015), available at  http://www.un.org/News/dh/infocus/centafricrepub/Independent-Review-Report.pdf.

[7] Several other member states, the Holy See, AU, EU, ICRC, INTERPOL, International Organization of la Francophonie, Organization of Islamic Cooperation, and the Sovereign Military Order of Malta act as observers.

[8] See Rep. of the Special Comm. on Peacekeeping Operations, U.N. Doc. A/70/19 (Mar. 15, 2016), available at http://www.un.org/en/ga/search/view_doc.asp?symbol=A/70/19.

[9] See id.

[10] G.A. Res. 70/268, ¶¶ 1–2 (June 14, 2016).

[11] See, e.g., U.N. Secretary-General, Summary Study of the Experience Derived from the Establishment and Operation of the Force, ¶ 163, U.N. Doc. A/3943 (Oct. 9, 1958), available at  http://www.un.org/en/ga/search/view_doc.asp?symbol=A/3943 [hereinafter Summary Study].

[12] See U.N. Secretary-General, Model Status-of-Forces Agreement for Peace-keeping Operations, Annex ¶ 47(b), U.N. Doc. A/45/594 (Oct. 9, 1990), available at http://www.un.org/ga/search/view_doc.asp?symbol=A/45/594 [hereinafter Model SOFA]. In principle, status agreements are concluded between the UN and host states. In practice, pending the conclusion of such agreements, the Security Council has, at the request of the General Assembly, provisionally applied the Model SOFA to all but one peacekeeping operation established after 1997.

[13] See Manual on Policies and Procedures Concerning the Reimbursement and Control of Contingent-Owned Equipment of Troop/Police Contributors Participating in Peacekeeping Missions (COE Manual) 192, transmitted by Letter dated 28 February 2014 from the Chair of the 2014 Working Group on Contingent-Owned Equipment to the Chair of the Fifth Committee, U.N. Doc. A/C.5/69/18 (Jan. 20, 2015), available at  http://www.un.org/ga/search/view_doc.asp?symbol=A/C.5/69/18. Completed in 2006, the Model was first made available in 2009. No Contributing MoUs based on this Model have yet been published in the United Nations Treaty Series.

[14] See Agreement between the United Nations and the Republic of South Africa Concerning the Status of the United Nations Transition Assistance Group to Namibia (South West Africa), S. Afr.-U.N., Memorandum of Understanding, Mar. 10, 1989, 1526 U.N.T.S. 3, available at https://treaties.un.org/doc/Publication/UNTS/Volume 1526/volume-1526-I-26465-English.pdf [hereinafter UNTAG-South Africa Agreement]; Henning Pieterse, The Status Agreement between South Africa and the United Nations, 15 S. Afr. Y.B. Int’l Law 138, 140 (1989–1990).

[15] Examples of this obligation can be found in Summary Study, supra note 11, ¶ 136; UNTAG-South Africa Agreement, supra note 14, at Memorandum of Understanding; Model SOFA, supra note 12, ¶ 48; and Model Agreement Between the United Nations and Member States Contributing Personnel and Equipment to United Nations Peace-keeping Operations, Annex ¶ 25, U.N. Doc. A/46/185 (May 23, 1991), available at http://www.un.org/ga/search/view_doc.asp?symbol=A/46/185. The model agreement was never used in practice and eventually replaced by a model memorandum of understanding. See Reform of the Procedures for Determining Reimbursement to Member States for Contingent-owned Equipment, Note by the Secretary-General, U.N. Doc. A/51/967 (Aug. 27, 1997), available at http://www.un.org/ga/search/view_doc.asp?symbol=A/51/967.

[16] See G.A. Res. 44/49, ¶ 11 (Dec. 8, 1989); Rep. of the Special Comm. on Peace-keeping Operations, Comprehensive Review of the Whole Question of Peace-keeping Operations in all their Aspects, ¶¶ 25, 32(h), U.N. Doc. A/44/301 (June 9, 1989), available at http://www.un.org/ga/search/view_doc.asp?symbol=A/44/301.

[17] Letter from the Office of Legal Affairs, Secretariat of the U.N., to the Acting Chair of the U.N. Special Comm. on Peacekeeping Operations (Apr. 14, 2004), in United Nations Juridical Yearbook 323, 325 (2004), available at http://legal.un.org/UNJuridicalYearbook/pdfs/english/ByVolume/2004/chpVI.pdf; see also Model SOFA, supra note 12, ¶ 47(b) (“[Peacekeepers] shall be subject to the exclusive jurisdiction of their respective participating States in respect of any criminal offences . . . .”).

[18] See Zeid Ra’ad Zeid Al-Hussein (Adviser to the Secretary-General on Sexual Exploitation and Abuse by United Nations Peacekeeping Personnel), A Comprehensive Strategy to Eliminate Future Sexual Exploitation and Abuse in United Nations Peacekeeping Operations, ¶ 78, Annex ¶ A.27, transmitted by Letter dated 24 March 2005 from the Secretary-General to the President of the General Assembly, U.N. Doc. A/59/710 (Mar. 24, 2005), available at http://www.un.org/ga/search/view_doc.asp?symbol=A/59/710 [hereinafter Zeid Report]; COE Manual, supra note 13, at 192.

[19] See Statement by Zeid Ra’ad Zeid Al-Hussein, U.N. Security Council, 5191st Meeting, 3, U.N. Doc. S/PV/5191 (May 31, 2005), available at http://www.un.org/ga/search/view_doc.asp?symbol=S/PV.5191 [hereinafter Zeid Statement]; Zeid Report, supra note 18, ¶ 67(a).

[20] See Letter from Kurt Waldheim, U.N. Secretary-General, to J. Adriaan Eksteen, Chargé d’Affaires, Permanent Mission of South African to the U.N. (Feb. 27, 1979), available at http://search.archives.un.org/uploads/r/united-nations-archives/7/c/0/7c0dee8613606d8c24b8f7a49100a805042ca4078a5511d17f....

[21] See Zeid Report, supra note 18, ¶ 35.

[22] See id. ¶ 82.

[23] See Anthony J. Miller, Legal Aspects of Stopping Sexual Exploitation and Abuse in U.N. Peacekeeping Operations, 39 Cornell Int‘l L. J. 71, 95 n.153 (2006).

[24] Rep. of the Special Comm. on Peacekeeping Operations and its Working Group at the 2006 Substantive Session, ¶ 78, U.N. Doc. A/60/19 (Mar. 22, 2006), available at http://www.un.org/ga/search/view_doc.asp?symbol=A/60/19.

[25] See, e.g., U.N. Secretary-General, Special Measures for Protection from Sexual Exploitation and Sexual Abuse, ¶ 60, U.N. Doc. A/69/779 (Feb. 13, 2015); U.N. Secretary-General, The Future of United Nations Peace Operations: Implementation of the Recommendations of the High-level Independent Panel on Peace Operations, ¶ 120, U.N. Doc. A/70/357–S/2015/682 (Sep. 2, 2015); Zeid Statement, supra note 19, at 4; Letter from Bob Corker, Chairman, U.S. Senate Foreign Relations Comm., to John Kerry, U.S. Sec’y of State (Oct. 21, 2015), http://www.foreign.senate.gov/imo/media/doc/102115 letter.pdf; Yakin Ertürk (Special Rapporteur on Violence Against Women, its Causes and Consequences), Promotion and Protection of All Human Rights, Civil, Political, Economic, Social and Cultural, Including the Right to Development, ¶ 53, U.N. Doc. A/HRC/7/6/Add.4 (Feb. 28, 2008).

[26] Summary Study, supra note 11, ¶ 137; Derek W. Bowett, United Nations Forces: A Legal Study 370, 439 (1964); Zeid Report, supra note 18, ¶¶ 35–36; Special Measures Report 2016, supra note 2, ¶ 68; HRW, The Power These Men Have Over Us: Sexual Exploitation and Abuse by African Union Forces in Somalia 34 (Sep. 2014), available at https://www.hrw.org/sites/default/files/report_pdf/somalia0914_4up.pdf.

[27] United Nations Organization Mission in the Democratic Republic of Congo: A Case for Peacekeeping Reform: Briefing and Hearing Before the H. Subcomm. on Africa, Global Human Rights, and International Operations of the H. Comm. on International Relations, 109th Cong. (2005) (Statement of Jane Holl Lute, U.N. Assistant Secretary-General for Mission Support, Department of Peacekeeping Operations), available at http://commdocs.house.gov/committees/intlrel/hfa99590.000/hfa99590_0.HTM.

[28] Bowett, supra note 26, at 374.