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

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.