by Amishi Agrawal*,
edited by Ai Kihara-Hunt, The University of Tokyo
*This is a report by a student participant of the Special Seminar, and does not serve as an official verbatim report.
INTRODUCTION
"Sexual exploitation and abuse (SEA) in United Nations' Field Missions" is an oxymoron because acts of SEA by peacekeeping, humanitarian and development personnel of the very individuals they are supposed to protect violate the most essential rights of individual victims. SEA has a profound negative impact on the whole local community and the UN itself. It normalises such behaviour, thereby affecting how the host country moves forward and compromises the legitimacy of the UN and its central work. With the turn of the century, cases of SEA within UN operations made headlines, and since then successive Secretaries- General have sought to prevent and respond to them. In 2017, Secretary General António Guterres promised to put the UN "house in order"[1] and introduced a "game-changing"[2] four-pronged strategy. To begin work towards the most novel and essential aspect of the strategy—prioritisation of the rights and dignity of victims—he appointed the first Victims' Rights Advocate (VRA) for the United Nations, Ms. Jane Connors.
On 17 June 2020, Ms. Connors gave a seminar to the University of Tokyo faculty and students. The seminar was co-hosted by the University of Tokyo (UTokyo)'s Graduate Program on Human Security (HSP) and the UN Office of the UN Victims' Rights Advocate (OVRA), and moderated by Prof. Ai Kihara-Hunt, UTokyo. Ms. Connors provided an overview and incisive analysis of the current state of the UN's response to SEA and the pioneering work of the OVRA, and also engaged in an intensive discussion with the participants.
BACKGROUND OF SEA AND THE UN’S RESPONSE
Ms. Connors began her presentation with reminding the audience of the 2003 Secretary-General’s Bulletin on Special Measures for Protection from Sexual Exploitation and Abuse, which set out the UN's definition of SEA. The Bulletin defines “sexual exploitation” as ‘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’ and “sexual abuse” as ‘the actual or threatened physical intrusion of a sexual nature, whether by force or under unequal or coercive conditions.’[3] It also prohibits any sexual activity with a child—defined as a person under the age of 18— notwithstanding domestic law, consent or mistaken belief of the perpetrator.[4] Ms. Connors noted that these definitions are far more progressive than most countries' domestic definitions. However, she was critical of the provision that only 'strongly discouraged' sexual relationships between UN personnel and beneficiaries of assistance, as they are inherently based on an unequal power dynamic and true consent is unlikely to exist.
While the UN can not prosecute, it works alongside host states and sending states to hold offenders accountable. Currently, if an allegation of SEA is substantiated, the UN itself can take disciplinary action up to dismissal for UN civilian personnel and repatriation for uniformed personnel. Ms. Connors introduced "Clear Check '', a tool which all UN agencies use to ensure that past SEA offenders are blocked from re-employment or employment by other UN agencies. She is advocating for “Clear Check'' to be extended to humanitarian organisations other than the UN. Ms. Connors stressed on the importance of ensuring individual accountability for uniformed personnel after their return to their home state. She recommended Prof. Kihara-Hunt's book Holding UNPOL to Account: Individual Criminal Accountability of United Nations Police Personnel to those interested in individual criminal accountability.
She also touched upon the High-Level Round Table on Accountability for SEA in UN Peace Operations, held on 3 September 2019 at the Permanent Mission of Japan to the UN, organised by her and Prof. Kihara-Hunt with UTokyo's Humanities Centre, and mentioned that recommendations made at that Roundtable are particularly crucial for making progress. Prof. Kihara-Hunt's extensive research on this topic is also summarised in an earlier post on the UTokyo’s International Law Training and Research Hub, and her startling but well proven conclusion is that "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...The principal problem appears to be the lack of political will to pursue prosecution in the first place."[5] Through such pioneering academic contributions, Ms. Connors said that the work of ending impunity and preventing SEA bears fruit.
On more recent developments, Ms. Connors guided participants to the UN’s publicly available website,[6] where since 2015, a summary of allegations of SEA incidents can be seen in real time. This development fits well with the fourth prong of the Secretary General's strategy—reorienting UN communications towards transparency and creating a global platform for sharing best practices. The rationale behind this strategy, along with an analysis of the structural reasons for SEA’s persistence within UN operations can be found in the landmark Secretary-General’s 2017 report.[7]
THE ROLE OF THE OVRA
Ms. Connors then provided an overview of the work done by OVRA since its inception in September 2017. Until 2017, the UN’s response to SEA left victims behind. Restoring victims’ rights and dignity, therefore, is the OVRA’s main objective. Also, Senior Victims’ Rights Officers (SVROs) have been appointed in four countries that attracted the highest number of allegations —the Central African Republic (CAR), Democratic Republic of the Congo, Haiti and South Sudan. Since 2019, the VRA has focused on advocacy and field visits. As regards advocacy and stakeholder engagement, she had discussed with a variety of stakeholders on how to effectively deliver her mandate, including with member states, UN entities, other Intergovernmental Organizations (IGOs) and regional organisations, civil society and academics. During her field visits, she met directly with victims at their request. Difficulties expressed by victims included complex complaint pathways, distressing investigative procedures, insufficient updates on the progress of their cases, and inadequate health and financial support. The OVRA then converted them into their priority action points.
It has been particularly challenging to establish accessible complaint mechanisms to mitigate stigmatisation by the society, prevent obstruction by alleged offenders, and sometimes criminalization of victims under domestic law. Work continues on assisting victims with outstanding paternity claims and mapping available support for victims in 13 countries hosting UN peace operations or large humanitarian or development presence. The OVRA is also currently working on a policy document—a Victims' Statement or Code—setting out victims' standards and expectations relating to the UN and member states' actions, in order to institutionalise a victim-centred approach in all UN efforts. More details about the work done by the OVRA can be found in this paper by Ms. Connors.[8]
The VRA also assists with the Secretary-General’s field visits. Field visits, such as the first one undertaken in the CAR—help entrench his conviction for bolstering the UN's SEA response. The field VROs have been responding to victims’ specific needs on the ground in innovative ways, such as by setting up bank accounts for victims to receive child support payments in CAR, establishing community-based complaint mechanisms, and overseeing livelihood projects financed by trust funds in support of the victims. These developments are well captured in the latest SEA report by the Secretary-General.[9]
IMPACT OF COVID-19
COVID-19 has had an adverse impact on the UN’s response to SEA. Ms. Connors drew the participants’ attention to past spikes in the number of SEA incidents when an epidemic breaks out or when a humanitarian crisis ensues. She highlighted the rise in SEA instances during the spread of Ebola, despite it being a sexually transmittable disease. Crises make vulnerable people more vulnerable, leading to an increase in SEA incidents. Caution, patience and proper oversight is necessary in the humanitarian missions that would spring up after the pandemic. Income generating projects under the Trust Fund, such as mushroom planting, garment making and basket weaving, have been suspended due to the pandemic. Ms. Connors praised field VROs’ efforts at maintaining weekly contact with victims. Finally, she noted that COVID-19 might also divert the already limited funds for addressing SEA, and cause a further decline in reporting of SEA incidents. For further reference, Ms. Connors recommended the succinct Inter-Agency Standing Committee (IASC)’s 2020 Interim Note on SEA response during COVID-19.[10]
SUMMARY OF DISCUSSION
An engaging discussion took place between Ms. Connors and the seminar attendees. A participant asked about the different definitions of SEA under domestic law and the implications on accountability. Ms. Connors acknowledged that many countries had stricter definitions, and anyway in most cases, uniformed personnel face military court proceedings instead of civil court ones. The next question was on the available support for victims during and after the complaint process, taking into consideration the societal obstacles that deter them from reporting in the first place. Ms. Connors stressed the importance of establishing a legal network that could support victims and lawyers on the ground. She suggested that investigation should automatically be triggered by information, and not require the victim to be put under a spotlight.
Responding to a question on whether abortion could be provided as part of medical assistance, Ms. Connors confirmed that there is a basis for this suggestion in theory. However, because of the limited funding available, it may be difficult in practice. She praised the UN’s Comprehensive Strategy since 2007 of providing adequate substantial guidance, but noted that it is not backed by funding. Especially outside of peace operations’ context, funding for victim assistance is very limited. Ms. Connors agreed that operational reforms must accompany substantive ones and that priority should be given to SEA response, backed up by allocating sufficient resources.
On the political will to pursue criminal accountability for SEA offenders, Ms. Connors noted that a clear political divide exists: whereas the majority of troops come from the South, funding comes mostly from the North. She also said that a convincing argument for encouraging state engagement is to contextualise the impact of SEA instances. For example, considering that the head of the state usually commands the army, SEA cases ultimately stain him/her. A final question was about whether having one international tribunal for SEA cases is helpful. The presenter referred to the suggestions of Code Blue - a civil society initiative, from which the UN is learning. She agreed that such a court would be ideal but unrealistic at this stage.
To conclude, Ms. Connors reminded participants that the OVRA works with interns, and encouraged passionate students to explore these options. While 2020 could be summed up as a year on a standstill, this insightful seminar ensured that the attendees left the seminar with a good understanding of the theme. A simple look at the publicly available website where complaints of SEA for UN operations are launched shows us that instances of SEA continue to occur at a rapid, and yet to increase, pace even amidst COVID-19. Perhaps, it is through special seminars such as this one that leaps and bounds of progress can be made in the awareness-raising goal, while we prepare the UN field missions to resume operations shortly.
[1] UNGA, Special Measures for Protection from Sexual Exploitation and Abuse: A New Approach: Report of the Secretary-General, 28 February 2017, UN Doc. A/71/818, p.7. [2] UN, ‘The Secretary-General Announces Task Force on UN Response to Sexual Exploitation and Abuse’, 6 January 2017, https://www.un.org/sg/en/content/sg/personnel-appointments/2017-01-06/secretary-general-announces-task-force-un-response [3] UN, Secretary-General’s Bulletin: Special Measures for Protection from Sexual Exploitation and Sexual Abuse, 9 October 2004, UN Doc. ST/SGB/2003/13, Section 1, p.1. [4] Ibid., p.2. [5] Ai Kihara-Hunt, ‘Debunking Legal Obstacles to Individual Criminal Accountability for Sexual Exploitation & Abuse’, The University of Tokyo International Law Training and Research Hub, 2020, available at: https://www.utokyointlaw.com/post/debunking-legal-obstacles-individual-criminal-accountability-sexual-exploitation-abuse, accessed 2 January 2021. [6] UN, Conduct in UN Field Missions. Sexual Exploitation and Abuse, Table of Allegations (2015 onwards), available at: https://conduct.unmissions.org/table-of-allegations, accessed 2 January 2021. [7] UNGA,. Special Measures for Protection from Sexual Exploitation and Abuse: A New Approach: Report of the Secretary-General, 28 February 2017, UN Doc. A/71/818. [8] Jane Connors, ‘A victims’ rights approach to the prevention of, and response to, sexual exploitation and abuse by United Nations personnel’, 25 Australian Journal of Human Rights 3 (2019), 498-510. [9] UNGA, Special Measures for Protection from Sexual Exploitation and Abuse: Report of the Secretary-General, 17 February 2020, UN Doc. A/74/705. [10] Inter-Agency Standing Committee, Interim Technical Note: Protection from Sexual Exploitation and Abuse (PSEA) during COVID-19 Response. March 2020, available at: https://reliefweb.int/sites/reliefweb.int/files/resources/IASC%20Interim%20Guidance%20on%20COVID-19%20-%20Protection%20from%20Sexual%20Exploitation%20and%20Abuse.pdf, accessed 2 January 2021.