Trigger warning: This article deals with the very serious issue of sexual exploitation and abuse of women and children by UN peacekeeping personnel.
Allegations of peacekeepers committing sexual exploitation and abuse (SEA) are not new. They arose in the missions of the 1990s, such as the UN Transitional Authority in Cambodia (UNTAC) and missions in the former Yugoslavia. Use of prostitutes and sexual exploitation of women by visiting military forces goes even further back- a tradition with a long history.
The background, the numbers
The UN has spent over a decade trying to stamp out SEA by its peacekeepers; starting with a bulletin issued by the Secretary-General in 2003, setting the UN’s ‘zero tolerance policy’ on SEA. The statistics show that its actions were, in part, succeeding. While they had not managed to eliminate the criminal conduct, allegations dropped significantly. In 2005-6, allegations peaked at 357 and 340. By 2014, allegations hit an all-time high at 51. Yet in 2015, a new scandal hit, and allegations rose again for the first time since 2009, with 69 allegations. In addition, non-UN French peacekeepers were accused of SEA, and the UN was found to have behaved with gross negligence in failing to act on the information they had about these allegations. In 2016, the Security Council passed its first ever resolution on peacekeepers and SEA (Res 2272). The US Representative to the UN, Samantha Power, said it was the first time she really felt like the only woman representative on the Security Council.
What is SEA?
SEA by peacekeepers covers a wide range of activities, from rape and sexual abuse to human trafficking, enforced prostitution, pornography, sexual slavery and sexual exploitation. Victims are women and children (of both genders). Sexual exploitation is a very particular crime; it involves the abuse of the peacekeeper’s position of power and the trust of the victim in order to force sexual activity in exchange for money or goods. It is important to recognise the abuse of power element, because peacekeepers are tasked with protecting civilians, and their abuse of trust is particularly significant. Examples include the exchange of ration packs for oral sex from boys, or the exchange of a hairclip or food as little as an egg for oral sex from girls. There have also been issues of paternity claims due to children born to women engaged in consensual and non-consensual sexual activity with peacekeepers.
What’s being done about it
The UN established a Conduct and Discipline Unit (CDU), tasked with receiving reports of misconduct and carrying out preliminary investigations. Allegations with merit are referred on to the UN’s Office of Internal Oversight Services (OIOS), which then conducts further investigations. However, despite the necessity and good work of these offices, the CDU and OIOS are offices of the UN that can do no more than have a peacekeeper repatriated to their home country. Repatriation is the most serious repercussion for peacekeepers who commit misconduct, including criminal conduct such as SEA. In addition, I have been reliably informed by a UN employee that the UN is too much of a ‘boys’ club’ for SEA to ever really be stamped out- that the will simply is not there to take firm action.
A constant refrain heard is that it is the sending states’ responsibility to punish their own personnel. UN reports refer to the fact that sending states have exclusive jurisdiction over their personnel, and therefore it is up to sending states to punish their personnel. There the discussion ends. Not one report or assessment has considered whether states are actually capable of punishing their own peacekeepers for SEA crimes.
Examining the reality of the repercussions: A case study of Australia & The US
I have undertaken a comparative analysis of the laws of Australia and the United States, in order to determine whether or not these two states have the ability to prosecute their peacekeepers for SEA. The overall finding is: yes, but far from comprehensively. Australia has a much better capability than the United States, although amendments made to the US Uniform Code of Military Justice (UCMJ) in 2013 have improved the USA’s capacity.
Australian law applicable to the Australian Defence Force (ADF) is actually quite comprehensive with regards to sexual offences. Prohibited conduct under various pieces of legislation includes sexual assault, rape, rape of a minor, act of indecency with a minor, child pornography, sexual servitude, child prostitution, forced prostitution, trafficking, slavery, and sexual offences against children (tourism) outside Australia. However, there is no blanket prohibition on prostitution (which is of specific issue in conflict and post-conflict situations), and no proscription of sexual exploitation.
The UCMJ prohibits United States Armed Forces (USAF) personnel from committing patronising a prostitute, pandering, child endangerment, child pornography, rape, sexual assault, child rape, child sexual assault/abuse, forcible pandering, and anal rape. USAF personnel are also subject to the US Code, which outlaws sexual abuse, sexual exploitation of children, child sexual abuse, sex trafficking of children, forced and fraudulent sex trafficking and transportation for illegal sexual activity. These laws lack prohibition of forced prostitution, sexual exploitation of adults, and sexual slavery. While a discussion of this is out of the scope of this article, there are also definitional issues including those of sexual exploitation of children and rape.
The issue of extra-territorial jurisdiction
However, not only is it an issue of whether these countries have provisions in their criminal law that outlaw the SEA being carried out by peacekeepers, but whether these countries are permitted to prosecute their personnel for crimes committed outside their own territory. This is termed ‘extra-territorial jurisdiction’. In this regard, Australia comprehensively ensures that all legislation applying to the Australian Defence Force (ADF) is applicable extra-territorially. This includes civilians accompanying the ADF.
In terms of the United States Armed Forces (USAF), the situation is murky. Crimes under the US Uniform Code of Military Justice (UCMJ) that attract a punishment of greater than one year imprisonment are granted extra-territorial jurisdiction under the Military Extraterritorial Jurisdiction Act, including for crimes committed by civilians and contractors accompanying the USAF or employed by the Department of Defence or any other federal agency. However, this limitation of the Military Extraterritorial Jurisdiction Act only to crimes with more than one year of punishment excludes extra-territorial jurisdiction over prostitution-related offences, which attract a maximum penalty of only 12 months prison. In addition, the majority of relevant offences under the US Code are not applicable outside the United States, with extra-territorial jurisdiction granted only to crimes involving sex trafficking, labour trafficking, forced labour, slavery and torture. This means that the USA is unable to prosecute its peacekeepers for sexual abuse, sexual abuse of children, sexual exploitation of children and transportation for illegal sexual activity.
The need for reform is urgent
Australia and the USA are countries that pride themselves in setting an example in being at the forefront of criminal law reforms, and they are indeed far ahead of many other countries with regards to proscribing sexual offences. However, it is evident that even these two countries are not fully capable of prosecuting their peacekeepers for SEA crimes. Where does this leave us, then, with regards to countries that are major troop contributing states, such as Bangladesh, Pakistan and India, where sexual offences are not taken seriously at a domestic level and legislative provisions are seriously lacking?
If the UN is ever going to seriously eliminate SEA by peacekeepers, then the new UN high-level task force on SEA needs to work with states to amend domestic laws in order to ensure that after repatriation, assuming the will to punish is there, so is the ability. Otherwise, peacekeeper perpetrators will continue to simply be repatriated with impunity, and these serious SEA crimes will endure.
For more on Resolution 2272, read Dr. Sarah Smith‘s piece ‘Introducing Resolution 2272: Preventing Sexual Exploitation and Abuse by Peacekeepers.‘