By: Lucíola Gomides Dutra
Impunity Watch Reporter, Special Feature
The UN Charter outlaws all uses of force against the territorial integrity or the political independence of a state, unless authorized by the UN Security Council or justified by self-defense.2In addition, although controversial, the principle of self-determination can be also recognized as a third exception to that prohibition.3
The objective of such provisions is to create a system in which force is the last resource and the UN will work toward a world of peace for all. Nonetheless, the UN Security Council may authorize measures involving the intervention of armed UN Peacekeeping operations, responsible for helping “countries navigate the difficult path from conflict to peace.”4
In this context, unlike the calm that follows any storm, peacekeeping agents seem to be committing criminal acts to the detriment of the population they are supposed to protect, undermining faith in UN operations, especially considering that the UN is not properly investigating and punishing the perpetrators.5
The Central African Republic’s situation is a good illustration of this issue, as urgent measures to avoid impunity to sexual abusers within the UN are necessary.
2- CENTRAL AFRICAN REPUBLIC (CAR) CONFLICT
Since 2012, the Central African Republic has been wrecked by the bloody armed conflict between the government, rebels from Séléka and from Anti-Balaka coalitions, causing civilians to suffer enormously. In this context, armed groups have used rape and sexual slavery as a tactic of war. Therefore, woman and girls have been made sexual slaves for long periods of time, after watching their husbands and fathers be murdered.6
To deal with this situation, the African Union Peace and Security Council authorized the deployment of African-led International Support Mission in the country (MISCA), which later was succeeded by the United Nations Multidimensional Integrated Stabilization Mission in Central Africa (MINUSCA),7in accordance with the UN Security Council’s Resolution 2149/2014.8
The Resolution reiterates that all perpetrators must be held accountable for their jus cogenscrimes, and points out that they can even be submitted to the International Criminal Court’s (ICC) jurisdiction.9In fact, the Office of the Prosecutor for the ICC opened an investigation in May 2007 and stated that based on preliminary analysis, civilians were killed and raped, among other crimes, in the context of an armed conflict between the government and rebel forces in CAR. However, the investigations are still pending for war crimes (murder, rape and pillaging) and crimes against humanity (murder and rape).10
Nonetheless, in an ideal world, the mission of the UN Peacekeeping operation is mainly engaged in assisting disarmament, demobilization and reintegration of ex-combatants, among other actions in support for the restoration of State authority, promoting human rights and economic recovery.11But UN Peacekeepers can be disguised perpetrators, protected under a blue helmet and an official veil of impunity.
3- A DIFFERENT UNLAWFUL USE OF FORCE BY PEACEKEEPERS
The rape and sexual abuse committed by rebels are conduct listed in the Rome Statute as crimes against humanity, allowing prosecutions to occur, eventually, at the ICC, since the CAR is a State party. However, the population will ultimately feel helpless if prosecutions do not occur for actions taken by those with a responsibility to defend the population’s rights, as in the case of some UN Peacekeepers.12
This problem of sexual exploitation and abuse promoted by Peacekeepers was nothing new to the UN even prior to 2014. The Report on the activities of the Office of Internal Oversight Services precisely stated that “it remains a significant area of concern,” with the greatest number of such offenses being committed by uniformed personnel in the seven UN Peacekeeping missions analyzed in that occasion, in 2013.13
Even so, from 2014 to 2015, the matter was kept secret by UN officials, generating not only impunity but also encouraging new crimes. Because of the cover-up, by 2015, the number of known child victims submitted to forced oral and anal sex acts had grown from nine to twenty-one. Therefore, not only those Peacekeepers who committed the crimes directly, but also the UN staffers and officials that were unduly silent should be investigated and held responsible for their wrongdoing, administratively and criminally. The omission’s seriousness is perfectly illustrated by the fact that one boy, who in 2014 was a witness telling UN interviewers that he had seen the oral and anal rape of his friends by Peacekeeping agents had, by 2015, become a victim of oral and anal rape himself.14
As if it was not enough, the crimes continued to happen as MINUSCA had just received new allegations of sexual abuse of at least three minors by Mauritanian Peacekeepers in southern CAR. This time, the UN claims that it immediately sent a multidisciplinary team to the scene to establish the needs of the alleged victims, to identify the perpetrators and to collect the necessary evidence. Furthermore, MINUSCA’s press release also affirmed that the alleged victims received medical and psychosocial support from two partner institutions of the United Nations System.15
But those steps are the easier ones to take compared to effectively investigating and punishing the wrongdoers, administratively and criminally, giving victims all the support that they need in order to have real access to justice and full reparations.
4- THE CODE BLUE CAMPAIGN
The Code Blue Campaign seeks to end impunity for sexual abuse by UN personnel in Peacekeeping operations, arguing that the UN should not continue to be the police and the judge to itself.16
First of all, there is a shield against punishment if one improperly takes advantage of the institute of immunity,17conceived initially to allow the members of the Organization to perform their functions adequately, without improper exposure to legal liability and interference by whoever wishes to obstruct their work.18
Despite of the possibility of deviation, according to the UN, “there is no immunity for sexual abuse,”19 implying that no waiver would be necessary. Conversely, as a practical matter, nothing happens until the UN assesses and decides, case by case, whether functional immunity applies.20
Although immunity, in the terms referred to above, can be an obstacle for eventual sanctions to apply when it comes to domestic laws, it is important to remember that Article 27 of the Rome Statute affirms that it applies equally to all persons, without distinction based on official capacity. Furthermore, the Statute is clear when it states that this official capacity shall not bar the Court from exercising its jurisdiction over such a person.21In other words, as long as the conditions to the exercise of jurisdiction are present as well, immunity should not represent an obstacle for accountability regarding the crimes against humanity committed by Peacekeepers.
When focusing on domestic laws’ accountability, the Code Blue Campaign defends the creation of anindependent Special Court Mechanism in peacekeeping countries where the UN has unilaterally determined that the existing law enforcement and judicial systems are not capable of carrying out criminal investigations or trials with acceptable standards. Actually, such an excuse could be used to make sure peacekeepers avoid trial. However, with the change proposed, there will be no more UN non-military, non-uniformed personnelcircumventing the local government in order to escape the legal consequences of their misconduct. 22
It is interesting to see that the campaign also points out a difference of treatment among UN personnel. On one hand, the current system makes it so that UN peacekeeping’s uniformed personnel operating under the jurisdiction of their Troop or Police Contributing Countries may face prison back in their own countries if accused of sexual assault or rape. On the other hand, UN civilian personnel accused of exactly the same crimes, if the local government’s justice system gets circumvented, face only the possibility of losing their jobs.23But the act of one is as reprovable as the act of the other. In addition, even for the uniformed personnel, there is no such thing as a guarantee of a trial in the perpetrator’s country of origin.
For instance, the fact that some States have military courts to investigate and adjudicate alleged human rights violations committed by members of the military against civilians is problematic. According to the U.N. Human Rights, it precludes the possibility of an independent and impartial investigation, which would require judicial authorities not linked to the command structure of the security forces.24
The second solution presented by the Code Blue Campaign is for the immediate term. It recognizes that there is a UN system-wide crisis, suggesting that the Member States appoint a Temporary Independent Oversight Panel to oversee the Organization’s response to claims of sexual harassment, sexual exploitation and sexual abuse, until the final outcome of each case.25
Of course, those would not be the only measures to be taken in order to solve the problem. Other alternatives are also helpful. For instance, the Secretary-General has also committed to supporting increased women’s leadership and gender equality in UN peacekeeping missions, as gender inequality can be connected with the sexual abuse issue.26
The logic behind this ratio is that as men outnumber women, it enhances a sexist culture that considers and treats women as inferior, leading to sexual violence. Then again, to fix gender inequality is itself a great problem. For example, in order to be seen as equal, women in the infantry admitted they felt pressured to not only meet but surpass the standard physical requirements. And even when they did surpass those standards, they had serious doubts as to whether they could ever be accepted as equals by their male peers.27Thus, there are barriers that should not exist, resulting in less women in the armies and making gender equality harder to achieve. Hence, more efficient measures need to be taken while the solution to this problem is being addressed.
Regarding the urgency to take action in order to avoid new rapes and sexual abuses within the UN Peacekeeping missions, the MINUSCA press release28seemed to show a more serious concern of the UN with the issue. In the beginning of 2018, the Secretary-General presented a report about “Special measures for protection from sexual exploitation and abuse” to the UN General Assembly. Unfortunately, the document merely has vague promises to address these problems with further actions.29It leads to the question: for how many more years will the UN rely on announcements of future policies instead of addressing the exploitation and the abuses with the seriousness the victims deserve?
Meanwhile, the UN Peacekeeping operations were supposed to be guided by the principles of consent of the parties, impartiality and non-use of force except in self-defense and in defense of the mandate.30In contrast, reality demonstrates that there is no such thing as consent when there is sexual abuse of fragile woman and children. Nor impartiality when those who are supposed to punish the criminals covers-up the facts for their own benefit. Finally, there is no self-defense, but another aggression in detriment of an already vulnerable population. At least for now, apparently the storm will continue to persist for the people in the CAR.
[i] 2 Jeffrey L. Dunoff, Steven R. Ratner & David Wippman, International law: norms, actors, process: a problem-oriented approach 716 (2015)
[i] 3 Malcolm N. Shaw, International law 554-557 (1991).
[i] 4 United Nations Peacekeeping, United Nations, https://peacekeeping.un.org/en (last visited Nov 7, 2018).
[i] 5Deutsche Welle, ‘Faith in peacekeeping is being undermined’, https://www.dw.com/en/un-not-competent-to-handle-abuse-allegations-sexual-abuse-peacekeeper/a-43152818 (last visited Nov 7, 2018).
[i] 6 Central African Republic: Sexual Violence as Weapon of War, Human Rights Watch (2017), https://www.hrw.org/africa/central-african-republic (last visited Nov 7, 2018).
[i] 7 History: Central African Republic conflict, Conciliation Resources (2016), https://www.c-r.org/where-we-work/east-and-central-africa/history-central-african-republic-conflict-0 (last visited Nov 8, 2018).
[i] 8United Nations Security Council Res 2149 , United Nations (2014), http://www.un.org/en/ga/search/view_doc.asp?symbol=S/RES/2149(2014) (last visited Nov 8, 2018).
[i] 9 Id
[i] 10Situation in the Central African Republic ICC-01/05, International Criminal Court, https://www.icc-cpi.int/car (last visited Nov 8, 2018).
[i] 11Mandates and the legal basis for peacekeeping Peacekeeping, United Nations, https://peacekeeping.un.org/en/mandates-and-legal-basis-peacekeeping (last visited Nov 8, 2018).
[i] 12James Hall, African Conflict Monitor In on Africa (2016), http://www.inonafrica.com/wp-content/uploads/2015/09/ACM_February_2016_Special_Release.pdf (last visited Nov 7, 2018)
[i] 13Report of the OIOS n, A/67/297 (Part II) , Office of Internal Oversight Services (2013), https://oios.un.org/resources/ga_report/a-67-297-ar-partii.pdf (last visited Nov 7, 2018).
[i] 14Supra note 12
[i] 15MINUSCA takes action on reports of sexual abuse by peacekeepers, MINUSCA (2018), https://minusca.unmissions.org/en/minusca-takes-action-reports-sexual-abuse-peacekeepers (last visited Nov 8, 2018).
[i] 16Code Blue Campaign Solutions, Code Blue, http://www.codebluecampaign.com/our-solutions (last visited Nov 8, 2018).
[i] 17CONVENTION ON THE PRIVILEGES AND IMMUNITIES OF THE UNITED NATIONS, United Nations (1946), https://www.un.org/en/ethics/pdf/convention.pdf (last visited Nov 7, 2018).
[i] 18Supra note 16
[i] 19Daily Press Briefing by the Office of the Spokesperson for the Secretary-General | Meetings Coverage and Press Releases, United Nations, https://www.un.org/press/en/2018/db180214.doc.htm (last visited Nov 8, 2018).
[i] 20Primer: Privileges and Immunities, Code Blue: http://www.codebluecampaign.com/primer-privileges-and-immunities-of-the-united-nations/ (last visited Nov 8, 2018).
[i] 21Rome Statute, The International Criminal Court, https://www.icc-cpi.int/resourcelibrary/official-journal/rome-statute.aspx#article27 (last visited Nov 19, 2018).
[i] 22Supra note 16
[i] 24OAS, UN Human Rights and IACHR Categorically Reject Bill Expanding Jurisdiction of Military Courts in Brazil OAS (2009), http://www.oas.org/en/iachr/media_center/PReleases/2017/160.asp (last visited Nov 19, 2018).
[i] 25Supra note 16
[i] 26 Sanam Naraghi Anderlini, UN Peacekeepers’ Sexual Assault Problem Foreign Affairs (2017), https://www.foreignaffairs.com/articles/world/2017-06-09/un-peacekeepers-sexual-assault-problem (last visited Nov 19, 2018).
[i] 27Megan H. MacKenzie, Will Letting Women Fight Fix Gender Inequality? Foreign Affairs (2018), https://www.foreignaffairs.com/articles/united-states/2018-04-23/will-letting-women-fight-fix-gender-inequality (last visited Nov 19, 2018).
[i] 28Supra note 15
[i] 29Report of the Secretary-General n. A/72/751, United Nations (2018), https://static1.squarespace.com/static/514a0127e4b04d7440e8045d/t/5aa810758165f594c06c504d/1520963702847/N1804422.pdf (last visited Nov 7, 2018).
[i] 30Principles of peacekeeping , United Nations, https://peacekeeping.un.org/en/principles-of-peacekeeping (last visited Nov 8, 2018).