University responses to sexual violence on campus: comparing English & American approaches

by Erin Shannon, University of York

Although the United States has the infrastructure to respond to student disclosures of sexual violence, there seems to be little commitment to changing campus cultures that permit sexual violence to occur. If American universities have the infrastructure without commitment to institutional change, English universities have recently demonstrated a higher level of commitment to ending sexual violence with little infrastructure to do so.

What can we learn from a comparative framing of responses to sexual violence in universities?

Sexual violence in English and American universities is not a new phenomenon, yet its corresponding field of study is relatively new. Such scholarship dates back to the 1980s but has gained traction in the last decade, possibly due to several high-profile cases, national awareness-raising efforts including campaigns like ‘It’s On Us‘ and ‘I Heart Consent‘, and the rise of survivor-activist groups such as ‘End Rape on Campus‘ and ‘Know Your IX‘ in the United States and ‘Revolt Sexual Assault‘ in the United Kingdom. Despite this growth in mainstream media coverage and activist work, research on sexual violence in universities remains limited: England only began investigating it in 2010 at the urging of the National Union of Students (NUS, 2010) and while the United States has a longer record of studying the subject, the existing literature often overlooks structural issues in favour of more individualised studies of perpetrator behaviour or the impact on victims/survivors (Phipps and Smith, 2012, p. 358). Comparative studies on sexual violence in universities are even rarer, as a single study exists that analyses campus crime rates across England and the United States (Fisher and Wilkes, 2003) and this only briefly touches on sexual violence.

Looking beyond scholarship, current institutional responses to sexual violence in American and English universities fall into one of two polarised approaches: a heavily structured framework (e.g. United States) versus a culture change model (e.g. England). While these models are not mutually exclusive, universities currently treat them as such. A comparative examination of American and English universities’ responses to sexual violence highlights that both approaches are necessary, yet neither on its own is sufficient to properly respond to sexual violence in universities. On a practical implementation level, the necessity of a comparative study becomes clear: Though England does not currently have a national response framework for sexual violence in universities, Universities UK (UUK) noted in its (2016) Changing the Culture report that it is working towards creating one, and, in doing so, is studying established structures—such as the United States’ Title IX—for potential adaptation (p. 4). We must therefore understand the existing responses in both countries if we are to seriously consider policy borrowing.

Before we can discuss what this best practice sharing could look like, we need to understand how we arrived at this discussion. Policy borrowing implies a level of sameness between two contexts, and American and English universities are indeed similar. The student make-up in both countries is comparable: In the 2015-2016 academic year, 40.5% of 18-24-year-olds in the United States and 49% of 17-30-year-olds in England attended university (National Center for Education Statistics; Adams, 2017). The majority of these students are white and female (National Center for Education Statistics; “Higher Education Student Statistics: UK, 2016/17,” 2018). Victimisation rates in both countries are also comparable: Though more data exists about the prevalence of sexual violence in American universities than in English universities, the available research does illustrate similarities. The (2015) Association of American Universities (AAU) Campus Climate Survey on Sexual Assault and Sexual Misconduct found that 21.2% of final year undergraduate students experience some kind of attempted or completed sexual assault prior to graduation (Cantor et. al., p. xiv). The most vulnerable of these were female students and “TGQN” students— “transgender male, transgender female, genderqueer or non-conforming gender, questioning, not listed, and ‘decline to state’” (Cantor et. al., 2015, p. vii)—who experience sexual violence at rates of 33.1% and 39.1% respectively (Cantor et. al., 2015, p. xiv). In England, the (2010) Hidden Marks report found that, of its respondents, one in seven female students experienced a serious sexual or physical assault (NUS, p. 3, 11) and 25% experienced a form of sexual violence while in higher education (NUS, p. 16). Another constant across both countries is the perpetrator profile: The most frequent perpetrators of sexual violence in universities are not “‘masked strangers’” (Hartmann, 2015, p. 291), but rather (ex-)boyfriends, friends, classmates, or acquaintances (Fisher et. al., 2000, p. 17; Krebs et. al., 2007, p. xviii). The Hidden Marks report further revealed that the level of intimacy the perpetrator had with the victim/survivor varied across types of violence: The more severe the assault, the closer the relationship between them (NUS, 2010, p. 19).

Despite these similarities, American and English universities respond differently to student disclosures of sexual violence, and these responses represent either side of the structured framework versus culture change binary mentioned earlier. The United States has a relatively standardised federal approach, while England is witnessing many different responses by individual universities. In addition to the structural difference between the countries, there appears to be a value difference as well. Although the United States has the infrastructure to respond to student disclosures of sexual violence, there seems to be little commitment to changing campus cultures that permit sexual violence to occur. If American universities have the infrastructure without commitment to institutional change, English universities have recently demonstrated a higher level of commitment to ending sexual violence with little infrastructure to do so.

The American Framework

The framework that the United States has in place consists of two key federal directives, Title IX and the Clery Act. Title IX prohibits any discrimination based on sex in education and the (2011) Dear Colleague Letter (DCL)—updated implementation guidance from the Obama administration—explicitly situates sexual violence as an issue covered by this: “Sexual harassment of students, which includes acts of sexual violence, is a form of sex discrimination prohibited by Title IX” (Ali, p. 1). The DCL mandates the following: Universities must publish a non-discrimination notice that has the contact information of the Title IX Coordinator in an easily accessible place, must assign the responsibility for Title IX compliance to at least one employee, and must create and disseminate their procedures for sex discrimination complaints (Ali, 2011, p. 6). It discusses how student conduct investigations should be carried out by detailing what standard of proof is acceptable (preponderance of the evidence or “more likely than not” as opposed to a higher standard such as “beyond a reasonable doubt”); that the complainant (alleged victim/survivor) and accused (alleged perpetrator) should have equal opportunity to present evidence, though they should not directly question each other; that investigations should not take longer than 60 days; and that universities should have an appeals process in place for both parties (Ali, 2011, p. 10-12). Should a university fail to respond appropriately and quickly to a report of sexual violence, the Office for Civil Rights can revoke the university’s federal funding (Ali, 2011, p. 16). In addition to Title IX, universities must adhere to the Clery Act, which requires them to log information such as the “‘nature, date, time, and general location of each crime;’” release statistics of crimes that happen adjacent to or on campus; send out ‘timely warnings’ about immediate and/or ongoing threats to campus safety; and create an emergency response strategy (Griffin et. al., 2017, p. 403-404).

Critics of the American response framework, particularly Title IX, often point to the lack of compliance universities exhibit and its punitive, legalistic qualities. When measuring the efficacy of Title IX in responding to sexual violence, what is often actually being measured is how successfully schools comply with guidance rather than how successfully they address sexual violence. Compliance, however, can still speak to how universities (de)value student victims/survivors; it’s therefore worth noting that, despite these improved procedures, there were still universities in 2015 that lacked a basic Title IX policy (Richards, 2016, p. 20). This compliance culture—or lack thereof—illustrates a previously mentioned issue with the American response to sexual violence in universities: Tani (2017), citing Leon’s study of the 2014 Office for Civil Rights investigation of University of Delaware, points out that American universities may have the structure in place to facilitate effective responses to sexual violence, yet limited or no institutional commitment to cultural change (p. 1890). Furthermore, beyond failure to comply with the system lie issues with the system itself. These critiques point to how such a punitive model results in a ‘zero-sum game’ between the rights of the accused versus the rights of the complainant and how the policy’s rape mythology imported from criminal law hurts victims/survivors (Hartmann, 2015, p. 314, 294; USVreact, 2018, p. 9).

The English approach

Conversely, the recommendations set out in UUK’s (2016) Changing the Culture report focus on facilitating cultural change through the creation of streamlined reporting, recording, and support processes. The Changing the Culture report highlighted that some universities are responding, but these responses are not centralised and there is not yet an outlet for sharing best practice across the UK (2016, p. 5). Based on responses from 60 of their member universities, UUK found that the majority did not have dedicated policies in place to respond to sexual violence, as this was often included under an umbrella policy for harassment and bullying (2016, p. 27). Under-reporting of sexual violence and the lack of reporting and recording infrastructure were common issues among respondents (UUK, 2016, p. 28). Despite the absence of internal reporting resources, however, many universities had developed working partnerships in their local communities with police and crisis centres (UUK, 2016, p. 29). UUK formed recommendations based on recurrent themes in university responses which include: achieve senior leadership buy-in, implement an institution-wide approach, work to prevent violence through forming a zero-tolerance culture and using bystander intervention training, create a system to centrally record all reports and make sure that there is a clear path to disclosure and support, create or strengthen partnerships in the local community (NHS, rape crisis centres, etc.), and ensure best practice sharing (2016, p. 58-59).

While Phipps and Smith (2012) caution us against “mobilising simplistic dichotomies” (p. 366) in comparing English and American responses to sexual violence in universities, the themes of infrastructure and commitment offer an opportunity to understand why two countries with relatively similar student make-up and rates of violence have taken such different approaches. The United States may have a developed infrastructure for response, yet the presence of this framework and the federal sanctions it can impose then make universities more concerned with compliance than with addressing and redressing sexual violence. On the other hand, without national legislation, England has the opportunity to discuss what supporting victims/survivors and preventing sexual violence looks like without universities facing national sanctions if their response does not fit a certain mould. The English guidance generated does not fixate on infrastructure aside from what will help students—easily accessible reporting and support pathways. In reviewing the American and English systems, we come to understand that merely having formal structures in place to respond to sexual violence in universities does not lead to broader cultural change, and that lacking standardised policies does not mean universities are not working to end sexual violence. The absence of standardised procedures in England may contribute to issues of accountability when universities act negligently, yet the United States shows us that the mere presence of a uniform response strategy does not guarantee that all universities will implement this even under the threat of losing federal funding. We then must grapple with the idea that change may not be best achieved through the creation of punitive umbrella policies that aim to foster compliance out of fear, rather than compassion for student victims/survivors. As someone who was heavily involved in Title IX activism throughout her undergraduate education in New Jersey, this idea has not been easy for me to confront.

What can we learn from this?
What then can we learn from a comparative framing of sexual violence response in universities? I am still very much in the process of finding out. The preliminary findings from my literature review suggest at the very least that a comparative framing would help us envision radically different options for response, that we do not have to remain committed to one way of responding because that is how it has been done. In a precarious moment for Title IX—thanks to Secretary of Education Betsy DeVos buying into the mythology of rampant false accusations (McNamara, 2018; “False Reporting Overview,” 2012) and subsequently making it more difficult for victims/survivors to find justice (United States Department of Education, Office for Civil Rights, 2017)—it is now more important than ever for Americans to remember that there are possibilities for achieving justice beyond a system that can be weaponised against the very people it was designed to protect. It is also important for England, in working towards a national response framework, to take into account the critiques of the United States’ system when considering it for possible adaptation. Ultimately, it is my hope that my doctoral thesis will help to identify how universities in the United States and England may engage in policy borrowing to better support university student victims/survivors of sexual violence.

 

References

Adams, R. (2017, September 28). Almost half of all young people in England go on to higher education. The Guardian. Retrieved from http://www.theguardian.com/education/2017/sep/28/almost-half-of-all-young-people-in-england-go-on-to-higher-education

Ali, R. (2011, April 4). Dear Colleague Letter.
Cantor, D., Fisher, B., Chibnall, S., Townsend, R., Lee, H., Bruce, C., & Thomas, G. (2015). Report on the AAU Campus Climate Survey on Sexual Assault and Sexual Misconduct. The Association of American Universities. Retrieved from https://www.aau.edu/sites/default/files/%40%20Files/Climate%20Survey/AAU_Campus_Climate_Survey_12_14_15.pdf
False Reporting Overview. (2012). Retrieved July 11, 2018, from https://www.nsvrc.org/sites/default/files/Publications_NSVRC_Overview_False-Reporting.pdf
Fisher, B. S., Cullen, F. T., & Turner, M. G. (2000). The Sexual Victimization of College Women. National Institute of Justice. https://doi.org/10.1007/springerreference_223719
Fisher, B. S., & Wilkes, A. R. P. (2003). A Tale of Two Ivory Towers: A Comparative Analysis of Victimization Rates and Risks between University Students in the United States and England. The British Journal of Criminology, 43(3), 525–545.
Griffin, V. W., Pelletier, D., Hayden Griffin, O., & Sloan, J. J. (2017). Campus Sexual Violence Elimination Act: SaVing Lives or SaVing Face? American Journal of Criminal Justice: AJCJ, 42(2), 401–425.
Hartmann, A. (2015). Reworking Sexual Assault Response on University Campuses: Creating A Rights-Based Empowerment Model to Minimize Institutional Liability. Journal of Law & Policy, 48, 287–320.
Higher Education Student Statistics: UK, 2016/17. (2018, January 11). Retrieved June 14, 2018, from https://www.hesa.ac.uk/data-and-analysis/students/whos-in-he
Krebs, C. P., Lindquist, C. H., & Warner, T. D. (2007). The Campus Sexual Assault (CSA) Study (No. 0209487). National Institute of Justice. Retrieved from https://www.ncjrs.gov/pdffiles1/nij/grants/221153.pdf
McNamara, B. (2018, March 12). Betsy DeVos Said She Doesn’t Know Whether False Rape Allegations Outnumber Real Ones. Retrieved July 17, 2018, from https://www.teenvogue.com/story/betsy-devos-false-rape-allegations-outnumber-real-ones
National Center for Education Statistics. (n.d.). Fast Facts. Retrieved June 12, 2018, from https://nces.ed.gov/fastfacts/display.asp?id=372
NUS. (2010). Hidden Marks: A study of women students’ experiences of harassment, stalking, violence and sexual assault.
Phipps, A., & Smith, G. (2012). Violence against women students in the UK: time to take action. Gender and Education, 24(4), 357–373.
Richards, T. N. (2016). An Updated Review of Institutions of Higher Education’s Responses to Sexual Assault: Results From a Nationally Representative Sample. Journal of Interpersonal Violence, 886260516658757.
Tani, K. M. (2017). An Administrative Right to Be Free from Sexual Violence: Title IX Enforcement in Historical and Institutional Perspective. Duke Law Journal, 66(8), 1847–1903.
United States Department of Education, Office for Civil Rights. (2017, September). Q&A on Campus Sexual Misconduct. Retrieved from https://www2.ed.gov/about/offices/list/ocr/docs/qa-title-ix-201709.pdf
Universities UK. (2016). Changing the Culture: Report of the Universities UK Taskforce examining violence against women, harassment and hate crime affecting university students.
USVreact. (2018). Training to Respond to Sexual Violence at European Universities: Final Report of the USVreact Project. Retrieved from http://usvreact.eu/wp-content/resources/USVreact_Report_2018_ENG.pdf

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Peacekeeper Sexual Exploitation and Abuse: Can Countries Actually Punish their Peacekeepers?

Trigger warning: This article deals with the very serious issue of sexual exploitation and abuse of women and children by UN peacekeeping personnel.

By: Dr. Melanie O’Brien

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.

Introducing UN Resolution 2272: preventing sexual exploitation and abuse by peacekeepers

by Dr. Sarah Smith.

Barack_Obama_chairs_a_United_Nations_Security_Council_meeting

A United Nations Security Council meeting

Sexual exploitation and abuse committed by peacekeepers – and others attached to peacekeeping missions – against the populations they are mandated to protect has been a recurrent issue for the UN. Recognising this, in March 2016 the UN adopted its first Security Council resolution aimed at preventing sexual exploitation and abuse (given the acronym SEA) by those under UN mandate. The development and eventual adoption of this resolution took place in response to widespread reporting of allegations against peacekeepers, especially in the Central African Republic (CAR), as well as claims that peacekeepers continued to enjoy impunity despite evidence of a widespread problem. This resolution – Resolution 2272 – bodes well for accountability for SEA within the UN, something that has been blatantly absent previously. However, it is not a panacea and much will depend on whether and how the resolution is fully implemented in practice.

From the 1990s, monitors in peacekeeping missions began to problematise the sexual conduct of peacekeepers, highlighting among other things issues such as the proliferation of brothels and prostitution at peacekeeping sites, peacekeeper involvement in trafficking, and rape and sexual assault. The UN mission in Cambodia is an oft cited case, made infamous by the head of that mission who responded with ‘boys will be boys’ when Cambodians complained of the sexual misconduct of peacekeepers. Reports have also found that sexual misconduct is not limited to peacekeepers, but that humanitarian and aid workers, government and non-government organisation personnel, and private military contractors commit SEA as well. The Dyncorp scandal, popularised in the film The Whistle Blower, is perhaps the best-known example here. Each time new allegations surface, impunity and lack of accountability are cited as major obstacles for both preventing SEA in peacekeeping missions, and providing justice to those survivors who do report.

The UN mission in Cambodia is an oft cited case, made infamous by the head of that mission who responded with ‘boys will be boys’ when Cambodians complained of the sexual misconduct of peacekeepers.

Following a 2003 bulletin from the Secretary General, the UN instituted a ‘zero-tolerance’ policy on peacekeeper SEA. Zero tolerance explicitly prohibited peacekeeper sexual relations with persons less than 18 years of age; exchange of money, employment, goods or services for sex; and sexual relations between UN staff and beneficiaries of assistance. Yet the zero tolerance approach has had its challenges and has neither improved accountability nor reduced the number of allegations of SEA made against peacekeepers. Due to the extent of under-reporting by victims, and a culture of not reporting incidences of abuse among personnel, zero tolerance is really only effective in those cases that are identified. In turn, because of the legal framework set out by the Status of Forces Agreement (an agreement between the host government and the UN concerning the privileges, immunities and criminal accountability of UN personnel and peacekeepers), close cooperation between troop contributing countries, who are responsible for prosecuting their personnel, and the UN is required. Troop contributing countries have proven reluctant to prosecute those who return with allegations of SEA made against them. While the UN can make moral claims about the ideal performance of its personnel, it has often claimed that it lacks the mechanisms to respond appropriately or enforce accountability given its lack of jurisdiction over peacekeeper personnel.

UN_battalion_Bastille_Day_2008_n2

A multinational group of peacekeepers march at a Bastille Day parade in Paris.

While peacekeeper SEA has been a recurrent issue then, it reached another zenith in terms of public attention in 2015 and 2016. Attention focused on allegations of child abuse by peacekeepers in the CAR, and particularly on the failures of the UN to respond to these allegations. In April 2015, UN aid worker Anders Kompass was suspended for disclosing to French authorities reports of French troop involvement in the sexual abuse of children. While he was eventually exonerated and reinstated, Kompass announced his resignation in June 2016, citing impunity for those who were found to be abusing their authority and lack of accountability. As a result of consistent allegations though, and the public attention they were garnering, the UN established an inquiry into peacekeeper SEA in the CAR, the results of which are yet to be made public; however early reports indicate a widespread problem of sexual misconduct, including allegations of rape of minors and forced bestiality. In late-2015, the head of the mission in the CAR was forcibly resigned by UN Secretary General Ban-ki Moon, a move that perhaps presaged what may become an enforcement of accountability up the food chain for the crimes committed by peacekeepers.

Also in 2015, the NGO Aids Free World leaked an internal UN report that highlighted lack of enforcement of zero tolerance policy, lack of reporting and resultant impunity for peacekeepers who committed SEA. Paula Donavan, who co-founded the NGO, also established the Code Blue campaign to end immunity for peacekeeper SEA and cites the misapplication of the 1946 Convention on Privileges and Immunities, via Status of Forces Agreements, as a major obstacle. The leaking of this report and the widespread reporting of allegations, especially in CAR, led the Security Council to consider a resolution aimed at preventing peacekeeper SEA.

As groundswell grew, a precursor to the adoption of Resolution 2272 was the Secretary General’s report on SEA released in March 2016, which, as well as noting that allegations had increased, for the first time listed the nationalities of those peacekeepers that had had allegations made against them. As part of previously instituted measures to respond to SEA, the Secretary General is obliged to report to the Security Council on the number of allegations for each mission and the status of investigations into those allegations. The listing of nationalities in the March 2016 report was a break from past practice: the long held claim that  ‘naming and shaming’ countries that contributed troops that went on to be accused of SEA would be reluctant to contribute troops in the future – not an insignificant concern given difficulties in raising numbers for peacekeeping missions. As the UN has frequently cited that accountability enforcement lies with troop contributing countries, the idea that naming and shaming those countries that do not act would force their hand is considered to be one tool in the UN’s arsenal for ensuring accountability. The reluctance to do this has been viewed as acquiescence to politics over and above the rights and needs of abuse survivors.

The reluctance to do this has been viewed as acquiescence to politics over and above the rights and needs of abuse survivors.

It is not surprising then that the UN has previously been criticised for an apathetic response to allegations of SEA. While the problem is by no means resolved, Resolution 2272 marks a new break, in some respects, from how peacekeeper SEA has been handled previously. It is the first time the Security Council has devoted a session to the issue of SEA, much less adopted a resolution devoted to preventing it. As well as reaffirming zero tolerance, it mandates for the repatriation of entire military contingents or police units with allegations made against them. This is a significant change, beyond a lackadaisical implementation of zero tolerance, signalling a preparedness to put prevention of SEA above the politics of the Security Council. Should repatriation of entire contingents occur, this would, in effect, be a ‘naming and shaming’ of those countries because the repatriation of entire units cannot be done discreetly. This makes the repatriation of entire units – when and if that occurs – a deeply political statement. The resolution notes that the primary responsibility of investigating allegations of peacekeeper SEA still lies with troop contributing countries, but in essence establishes a response mechanism – repatriation – if the actions of troop contributing countries are found wanting.

There are however, a couple of potential problems facing the implementation of Resolution 2272. First, is in defining what the resolution actually stipulates. As Kelly Neudorfer has pointed out, terms in the resolution – in particular the criteria of “systematic and widespread” and “credible allegations” – remain undefined: that is, what constitutes ‘widespread and systematic’ and what is considered a ‘credible allegation’? Furthermore, where is the tipping point that needs to be reached for the resolution, and thus repatriation, to be triggered? These as well leave aside the important question of whether repatriation of entire contingents will eventually occur, even if these triggers are both defined and met. Inherent in the sending home of whole contingents is a preparedness to name and shame countries whose peacekeepers abuse. Given how such processes can be politicised, it is important that the implementation of Resolution 2272 does not succumb to the same political machinations that have seen a deep reluctance to name and shame troop contributing countries take precedent over accountability for peacekeeper SEA.

Second, it is unclear whether the repatriation of entire units will lead to better justice outcomes for survivors, when and if repatriation does happen. Certainly there is an immediate effect of removing perpetrators from the environment in which they are committing abuses. However, in terms of broader justice outcomes for survivors, the repatriation process raises some questions, even if the opaqueness of the resolutions terms is set aside. In the past, individual perpetrators of SEA have been repatriated, quietly removed from peacekeeping sites. This has in effect contributed to the silence surrounding the issue, as the perpetrator is no longer accessible, to their accuser or to investigating units (both local and UN) that are under-resourced and/or unwilling to pursue the matter forcibly. Even if a worthy investigation is conducted, it rests with the troop contributing country to act on it, which has proven unlikely. Based on my research in Timor-Leste, the repatriation of individuals is actually associated with limited justice outcomes and continuing impunity for peacekeepers – it was a source of frustration that perpetrators would disappear, not to face justice in the country. No information on what happened to the accused was provided to victims once they were removed from the mission. To quietly remove an offender, where they are out of access of accusers, to a home country unwilling to prosecute, does little in terms of justice or real change in the institutional culture.

While the adoption of Resolution 2272 deserves credit where credit is due, there justifiably remain questions in terms of both its scope and implementation. These relate chiefly to the exact parameters of the resolution and what the terms therein mean, which in turn impacts when and how the resolution is implemented. At the very least, at an institutional level, the adoption of Resolution 2272 represents a rhetorical commitment, a break from past practice – some evidence of institutional steps towards improved transparency and accountability. The practice of Resolution 2272 will need to move beyond rhetoric though if the prevention – the stated aim of the resolution – and, ideally, improved justice outcomes for survivors, are to be met.

For more on this topic, read Sarah’s article in the Australian Journal of International Affairs.