Are there insurmountable legal barriers to pursuing individual criminal accountability for crimes of sexual exploitation and abuse in UN Peace Operations?
By Ai Kihara-Hunt, Hub founder
edited by Amishi Agrawal
Traditional houses in Timor-Leste, a host state to UN Peace Operations in 2000. (Author)
It has been over two decades since the issue of sexual exploitation and abuse in UN Peace Operations became known to the world. The continuous occurrence of such incidents victimizes an already-fragile population and undermines the legitimacy of the UN Peace Operations. Further, the absence of individual criminal accountability casts doubts on the UN’s commitment to its own values: the rule of law and human rights. Thus, preventing further incidents and holding individuals to account is of great importance.
While the UN struggled to show seriousness towards the issue for over a decade, a series of cases in the Central African Republic attracted the world’s attention again in 2014, and now there is visible commitment towards combating the issue. The response to sexual crimes must be comprehensive, and a central task will include addressing individual criminal accountability for perpetrators of sexual crimes.
At the outset, it needs to be clarified that not all instances of sexual exploitation and abuse are crimes. According to the UN, sexual exploitation is:
Any actual or attempted abuse of a position of vulnerability, differential power, or trust, for sexual purposes, including, but not limited to, profiting monetarily, socially or politically from the sexual exploitation of another.
Sexual abuse is
The actual or threatened physical intrusion of a sexual nature, whether by force or under unequal or coercive conditions.
Prostitution and sexual intercourse with an adult with consent are not crimes as such, regardless of power relations. For this blog article, the scope of acts that are discussed includes sexual crimes of rape, sexual assault, sexual abuse, sexual intercourse with a minor, sexual slavery and human trafficking. These are also considered crimes under domestic laws of virtually all states.
Under Human Rights Law, serious crimes must be investigated, and where there is sufficient evidence, prosecuted. In pursuance of prosecution, there appear to be two myths that are widely considered to be obstacles to prosecution: criminal jurisdiction and immunity. This blog article will discuss both of these myths and show that they do not actually constitute obstacles to prosecution when it is undertaken by a willing State.
1. Criminal Jurisdiction
Personnel working within the UN Peace Operations are categorised into locally employed personnel and international personnel. Since criminal jurisdiction is an issue for the latter, and not for the former, this section focuses on international personnel working within UN Peace Operations.
The first obvious actor for international personnel would be the UN however, it cannot prosecute by itself. This primarily leaves two criminal jurisdictions that can be applied: that of the host State and of the State of Nationality/sending State. The applicability of these jurisdictions is different for the two categories within international personnel: military contingent personnel and civilian personnel. It is clearly established that military contingent personnel are subject to exclusive sending-State jurisdiction, as stipulated in Status-of-Forces Agreements (SOFAs).
Civilian personnel, including police personnel, are subject to the jurisdiction of the host State. Whether or not they are also subject to the jurisdiction of the sending State/State of nationality depends on the domestic law of the sending State. According to the author’s study, around 90 percent of alleged crimes committed by the UN Police personnel were subject to their sending States’ jurisdiction: either that their sending States have criminal jurisdiction for all crimes committed by their nationals regardless of where they are committed, or that they have special legislation covering their civil servants or police personnel, or that they have jurisdiction over particular types of crimes committed by their nationals overseas.
In addition, 55 UN Member States have assured that they can exercise criminal jurisdiction over their nationals for crimes committed, as provided in the discussion on Criminal Accountability of UN Officials and Experts on Mission at the Sixth Committee of the UN General Assembly.
In short, the issue of jurisdiction is clear. For military contingent personnel, the host State is shielded from prosecution, but the sending State has jurisdiction. For civilian personnel, jurisdiction is therefore never an issue in the host State and does not pose a major barrier to prosecution of willing sending States.
The second myth concerns immunity. This will be discussed in two separate parts: the law and its implementation.
For the purpose of immunity, there are four main categories of personnel: military contingent personnel, high-ranking civilian personnel, other civilian personnel and locally hired hourly-paid personnel. The second and third categories can both be divided into two: UN Officials and Experts on Mission.
First, for military contingent personnel, aforementioned SOFA makes it clear that they are immune from host State jurisdiction and are exclusively subject to sending State jurisdiction.
Second, high-ranking civilian personnel, whether they are UN Officials or Experts on Mission, are immune from criminal prosecution in relation to all acts and omissions, including sexual crimes. This is called absolute immunity.
Third, other civilian personnel are immune from criminal prosecution only if the act is related to their official functions. This is called functional immunity. The question is not whether the act itself (or its omission) was part of their official functions, but whether it was committed in the course of delivering official functions. Either way, the author found that most of the reported sexual crimes are not covered by functional immunity.
Within this category of personnel, there are Officials and Experts on Mission. The only difference between the two groups relevant to this discussion is whether or not the person is covered by immunity from arrest. Experts on Mission, which includes UN Police personnel, are legally immune from arrest. For both civilian personnel categories, the geographic scope of immunity should be global, as the logic for immunity is to deliver the UN’s functions without States’ intervention. And finally, locally hired hourly-paid personnel are not covered by immunity.
A waiver is the act of voluntarily giving up immunity. Thus, the possibility of waiver only arises for acts which are covered by immunity in the first place. The UN, or more specifically the Secretary-General, can and must waive immunity when they consider that ‘immunity would impede the course of justice and can be waived without prejudice to the interests of the United Nations.’ This means that even for sexual crimes committed by high-ranking civilian officials, the UN can make the act prosecutable. Specifically for military contingent personnel, the question of waiver rests with the sending State.
In practice, the two aforementioned stages of immunity application are often used together. The UN tends to assume the existence of immunity from the host State and discusses the issue of waiver even for cases that are supposed to be covered by functional immunity only. It is also the UN’s practice that it only invokes immunity from the host State and not from the sending State. In relation to immunity from arrest, it appears that the UN does not invoke it separately in relation to Experts on Mission in UN Peace Operations.
In summary, immunity, if properly applied, is not a major barrier for most of the sexual crimes committed, given the nature of crimes. However, some uncertainties remain in relation to the geographic scope of immunity for civilian personnel. Two main problems arise in the application of immunity: the first is that the UN sometimes invokes immunity where no such immunity exists, and then “waives” this non-existent immunity. It would be better if the UN were to simply and clearly state that there was no such immunity in the first place. Second, the UN sometimes invokes immunity and does not waive it even where it does not, in fact, exist. In some cases, it appears that the real reason for this is the UN’s concern about handing over its personnel to a legal system that either may not be able to protect the suspect's right to a fair trial, or that is unable to conduct a trial at all. While this is a legitimate concern, it is recommended that this issue should be dealt with separately, via another mechanism. It is possible that inappropriate claims of immunity may breach the UN’s human rights obligations. To the extent that this is the case, States may be required not to deny such immunity. Given the practice, the exclusive power of the Secretary-General to decide i) whether immunity applies to particular conduct, and ii) whether the UN waives immunity, can be problematic as essentially all decisions are made by the top officials of the UN in the process.
There are no major legal barriers to the criminal prosecution of sexual crimes committed by UN Peace Operations personnel, despite myths that lead people to believe the contrary. Immunity poses some problems in practice. However, these limitations are not proportionate to the current reality where 75 percent of the criminal cases referred to sending States have remained unanswered. The principal problem appears to be the lack of political will to pursue prosecutions in the first place.