Ivanovic, A. This piece was written while the author was completing a Master of Arts degree in Peace Studies at the Joan B. Kroc Institute for International Peace Studies at the University of Notre Dame. cases committed by peacekeepers, both military and civilian personnel, can be de fi ned as ordinary crimes. support open access publishing. The MOU contains guidelines and codes of conduct for members of both military and civilian national personnel, “who remain in national service during their assignment of a UN peacekeeping operation” (Deen-Racsmany, 2011, p. 355). Finally, even “softer” (non-carceral) punishment can potentially play an important role in prevention. Educators The U.N. also signs a binding bilateral agreement regarding financial, administrative, and logistic issues with the troop-contributing state as well, known as a Memorandum of Understanding Agreement (MOU). The mission has to be established by a resolution of the Security Council or the General Assembly, and is viewed as a subsidiary organ of the U.N. Murphy (2006) points out that: [a]s such, it enjoys the status, privileges and immunities of the Organization provided for in Article 105 of the UN Charter, and the UN Convention on the Privileges and Immunities of the UN of 13 February 1946. (2010). The same does not apply when it comes to members of national contingents, however, since the troop-contributing countries retain “exclusive authority to discipline military members of their contingents participating in U.N. peacekeeping operations” (Miller, 2006, p. 75). in Defeis, 2008, p. 207). As the international community gradually grew aware of the magnitude of the problem, sexual violence and exploitation committed by peacekeeping forces on local populations, together with the U.N. response to them, became central topics for discussion and analysis for many. In addition, the Status of Forces Agreement (SOFA) between the U.N. and the host state, negotiated in accordance with Article 43 of the United Nations Charter, defines the status, codes of conduct, privileges and jurisdictional immunities of military and civilian personnel and grants exclusive jurisdiction to the troop-contributing country over military personnel (Ndulo, 2009, p. 154). Many thanks! Recognizing this, many analysts point out that in order for the military staff accused of misconduct to be held criminally accountable for their behavior, national governments must take the necessary measures to bring up charges against them and properly prosecute them for their wrongdoings. Furthermore, peacekeepers’ immunity can be waived by the Secretary-General where it is deemed that the immunity protection perverts the course of justice, and where waiving immunity will not prejudice the interests of the UN. [3 November 2014]. No clear legal framework on accountability for crimes committed by UN peacekeepers during peacekeeping missions. Links to thought-provoking articles exploring the larger, societal dimension of intractability. First, it will provide an up-to-date review of the current status of U.N. accountability mechanisms within the legal and regulatory frameworks for conduct and accountability of peacekeeping forces. Thus far, however, member states have been unwilling to coalesce on tougher measures to levy accountability for crimes committed on UN missions. Consider a low-cost BI-based custom text. Since the early 1990s, allegations of sexual exploitation by U.N. peacekeepers emerged in Bosnia and Herzegovina, Mozambique, Cambodia, East Timor, Liberia, Sierra Leone and Guinea, and continued to be documented well into the 21st century (Murphy, 2006). The UN report also alleges French cooperation in counterterrorism operations in 2017 and 2018 with a Malian group believed to have committed war crimes and recruited child soldiers, the Imghad Tuareg Self-Defense Group and Allies, which goes by the French acronym Gatia. Due to the abovementioned reasons, it remains highly unlikely that the U.N. will be willing to waive immunity and allow for the host state to exercise jurisdiction in most cases. United Nations Foundation, (2012). Criminal sanctions, however, are seldom levied. Going further, UN Security Council Resolution 2272 (2016) empowers the Secretary-General to repatriate military and formed police units “when there is credible evidence of widespread or systemic sexual exploitation and abuse by that unit (para. Miller, Anthony J. A worrisome fact is that members of military contingents constitute the majority of perpetrators of sexual abuses as opposed to other officials or experts on peacekeeping missions, since the performance of their military duties requires them to work within close proximity to vulnerable local populations. But while immunity has obvious ramifications for the potential aftermath of crimes committed by peacekeepers, it also complicates attempts to prevent these crimes in the first place, because crime prevention is at least partly predicated on the notion that undesirable actions can by pre-empted by the credible threat of specific sanctions. To provide real justice, there should be military and civilian trials in the country where crimes are committed. The same applies to UN staff, who are immune from any legal process in the host State for any wrongful act performed in their official capacity. Taking this into consideration, it seems that still much more needs to be done before the deployment of more female peacekeeping forces becomes a normative practice within the U.N. system. Your donations allow us to invest in new open access titles and pay our Reporters witnessed a rapid increase in prostitution in Cambodia and Mozambique after UN peacekeeping forces moved in. The Amended UN Model Memorandum of Understanding: A New Incentive for States to Discipline and Prosecute Military Members of National Peacekeeping Contingents? UNITED NATIONS (Sputnik) — In recent years, the UN was criticized for the crimes allegedly committed by its peacekeepers. Ndulo, M. (2009). Hence, as long as criminal accountability of U.N. military personnel accused of sexual exploitation and abuse depends exclusively on the cooperation with the troop-contributing country, reports and allegations of sexual offenses committed by U.N. personnel will continue to emerge. International Peacekeeping, 13:4, 531-546. (2006). The Election, COVID, Racism, and the Constructive Conflict Initiative Waiving immunity in a peacekeeping context primarily means that the host state will be able to investigate, prosecute, and eventually punish the peacekeeper concerned, but it could also entail some form of shared jurisdiction with the peacekeeper’s home country. United Nations (UN) peacekeepers have been accused of offences 1 that under specific circumstances could be characterized as war crimes or crimes against humanity. When, at the end of World War II, the UN conceived of peacekeepers it made them immune from prosecution by the host state for any alleged crimes committed while … With the increase of peacekeeping operations particularly after the end of the Cold War, growing numbers of peacekeeping officers have been accused of engaging in serious criminal offenses such as sexual abuse, sex-trafficking, soliciting prostitutes, sexually abusing minors and forcing children into prostitution. There is also little precedent for waiving immunity, owing to qualms about the integrity, legitimacy, and functioning of host states’ judicial and corrective systems: because protecting the rights and security of UN peacekeepers is a foremost concern of the institution, waiving peacekeeper immunity where there are doubts about the kind of treatment they face will prejudice the interests of the UN. Dharmapuri points out that there are three main reasons for that: “the lack of understanding among Member States about Resolution 1325 and U.N. policy on gender equality in peace operations; a gap in data and analysis about women’s participation in national security institutions globally, and in U.N. peacekeeping in particular; and the prevalence of social norms and biases that perpetuate gender inequality within the security sector” (qtd. The Beyond Intractability Knowledge Base Project Guy Burgess and Heidi Burgess, Co-Directors and Editors Others propose amendments and revisions to the MOU signed between the U.N. and the troop-contributing country. However, even though the relevant policies and standards of behavior have been successfully established, the same does not apply to their enforcement. Available from . A typical U.N. peacekeeping operation consists of several different types of personnel: U.N. staff, experts, U.N. civilian police, U.N. military observers, members of national military contingents and U.N. volunteers. However, one problem associated with such a proposal is that the regulations of the convention would be binding only to the parties that join it. Journal of Conflict and Security Law 16(1) pp. Knowledge Base. Insofar as the prevention of crimes by UN peacekeepers (whether sexual offenses or otherwise) depends upon the levying of predictable and consistent sanctions, then the current system of functional immunity and MoUs – which necessarily involve a great deal of latitude in punishing wrongdoing – is a serious challenge. United Nations (United States) (AFP) - A 400-page UN report out Monday calls for the creation of a special international tribunal to judge peacekeepers … Even though there has been considerable progress in establishing a number of policies and codes of conduct within a legal framework for U.N. personnel in recent years, problems regarding compliance with those and the criminal accountability of peacekeeping personnel for such misconduct remain. Image by United Nations Photo (UN Photo/Martine Perret), the sexualized violence and abuses committed by UN peacekeepers, sexual exploitation and abuse (SEA) by UN peacekeepers, High-Level Independent Panel on Peace Operations, Global Study on the Implementation of UN Resolution 1325, The UN’s Shame: Sexual Exploitation and Abuse in UN Peacekeeping, Protection from Protectors: Sexual Abuse in UN Peacekeeping Missions. While activists such as the Code Blue Campaign advocate for an independent special courts mechanism to deal with sexual violence by UN peacekeepers now covered by functional immunity, this idea has yet to gain traction among the majority of member states. This division of labor, in turn, entails different kinds of immunity and, relatedly, different jurisdictions and processes for investigating and punishing peacekeeper wrongdoing. Their ... for lasting peace and to strengthen security and promote development for the many communities affected by transnational crime and terrorism in the region. However, when it comes to practice, analysts are ambivalent as to how successfully the resolution has been translated into the implementation of U.N. peacekeeping mandates. Solving today's tough problems depends upon finding better ways of dealing with these conflicts. Sexual Abuse and Sexual Exploitation in Conflict Situations as a Security Risk, Women in UN Peacekeeping: Historical and Contemporary Patterns, The Effectiveness of Peacekeeping during Civil War. This does not, however, mean that the Secretary-General waives immunity in these cases, either for civilian or military peacekeepers. As it is often the case in conflict-torn countries, judicial systems are frequently either ill-functioning or completely non-existent. The criminal liability of peacekeeping personnel, therefore, lies at the very core of successfully addressing the problem. Examining the legal framework for accountability of U.N. personnel can shed light on the constraints that the U.N. faces in bringing perpetrators to justice. U.N. officials who commit different kinds of criminal offenses during peacekeeping missions are rarely held accountable for their actions because of the fact that they, “are granted immunity from criminal prosecution by the host State by a plethora of legal instruments” as outlined above (Burke, 2011, p. 63). E-IR is an independent non-profit publisher run by an all volunteer team. (2014) Why the United Nations Needs More Female Peacekeepers. Nevertheless, the Secretary-General has the right to waive the jurisdictional immunity of U.N. civilian officials and allow for host state and third state jurisdiction (O’Brien, 2012). UN peacekeepers exempted from war crimes prosecution for another year 12 June 2003 Currently, members of UN peacekeeping missions from nations that have not ratified the Rome Statute - the treaty that established the International Criminal Court (ICC) - are immune from investigation or prosecution under a Council resolution adopted unanimously a year ago. First, it is important to clarify how immunity works in a peacekeeping setting. Even fewer are convicted. The report on the ten-year impact study on the implementation of UNSC Resolution 1325 states that while there has been significant progress in supporting women’s participation in political processes, “conflict related sexual violence as a deliberate strategy in areas of conflict still occurs with impunity” (United Nations, 2010, p. 10). Legal Aspects of Stopping Sexual Exploitation and Abuse in U.N. Peacekeeping Operations. Associated Press: UN said on Tuesday it has received 44 allegations of sexual abuse by peacekeepers and staff in UN missions so far this year involving more than 40 minors. Media coverage of the United Nations is most often negative: deadlock in the Security Council over what to do in Syria and North Korea; the election of Saudi Arabia to the UN women’s rights commission; and – all too frequently in recent years – the sexualized violence and abuses committed by UN peacekeepers against the people they are supposed to protect. Thus far, this limitation on immunity has been more theoretical than actual. In recent years there have been growing reports of UN peacekeepers committing severe crimes against the people they are meant to protect, while on peacekeeping duties. Troop-contributing countries should consent to having military and civilian courts, ideally staffed by nationals of the peacekeeping troops, deployed with the peacekeepers and UN civilian staff. Journal of Conflict and Security Law 16 (2) pp. What is more, since the responsibility to deal with military personnel that has engaged in misconduct will continue to rest in the hands of the troop-contributing country, potential failure or unwillingness on behalf of the sending government to actually prosecute perpetrators suggest that criminal accountability will again be unlikely. Peacekeepers provided by UN Member States can only be prosecuted for crimes committed on duty by their own State. One such recommendation is that the host state should be given priority in exercising jurisdiction over instances of alleged sexual misconduct, considering the fact that, in most cases, witnesses and evidence necessary for the trial are more easily accessible in the country where the offense has taken place. 2). bandwidth bills to ensure we keep our existing titles free to view. The United Nations cannot subject military personnel to United Nations disciplinary procedures” (2009, p. 149). Inquire about Affordable Reprint/Republication Rights. As a result, it has been widely acknowledged that such allegations have proven extremely damaging to the image of the United Nations and have also threatened to seriously undermine the mandate of on-going and future U.N. peacekeeping missions. For UN staff committing serious crimes, the Secretary-General can waive immunity and have them tried in the host country where the crime allegedly occurred, but peacekeeping often takes place in countries with failed judicial systems. Last, but not least, perhaps the most significant step in addressing the sexual abuse problem is increased recognition of the importance of women’s role in peace processes, along with the importance of incorporating female perspectives in the general U.N. peace and security framework. As Murphy points out, “[t]here seems to be little alternative to the present system whereby U.N. forces are prosecuted by their relevant national authorities” (2006, p. 542). Cornell Law Faculty Publications. Murphy, R. (2006). In a similar note, Deen-Racsmany contends that “the SOFA provision on the exclusive criminal jurisdiction of the sending state over military members of national contingents (MMsNCs) constitutes a major obstacle in the way of ensuring the accountability of this category of persons for crimes and serious misconduct committed in peacekeeping operations” (2011, p. 350). Missions have operated with a generous interpretation of what counts as “official duties” in a peacekeeping context. #mbi_cci. Major topic areas include: An look at to the fundamental building blocks of the peace and conflict field covering both “tractable” and intractable conflict. For crimes committed by peacekeeping personnel within the jurisdiction of the host state (e.g. civilian UN staff), it is usually not possible for the host state to undertake investigation and prosecution. According to the Memorandum of Understanding (MoU) agreed between a troop-contributing country (TCC) and the UN, only TCCs can prosecute its military member for crimes committed on mission, usually in the TCC’s military justice system. The report calls on “a more concerted and robust response from national and international actors” in the fight against gender-based violence as it still remains highly prevalent (United Nations, 2010, p. 10). Finding consensus in drafting the text of the convention may also prove to be problematic (Murphy, 2006). Such abuses have the potential to undermine and even delegitimise the work of the UN, yet they regularly go undetected or unpunished. Deen-Racsmany explains that a 2007 amendment of the MOU “confirms the exclusive jurisdiction of the TCC” over civilian and military officers who take part in the peacekeeping mission and “continues with an assurance by the Government that it shall exercise such jurisdiction” (2011, p. 339). In the 1996 UN study "The Impact of Armed Conflict on Children", former first lady of Mozambique Graça Machel documented: "In 6 out of 12 country studies on sexual exploitation of children in situations of armed conflict prepared for the present report, the arrival of peacekeeping troops has been associated with a rapid rise in child prostitution." Ferstman, C. (2013). Host countries—with, if necessary, the support of the UN—would then be free to exercise subordinate jurisdiction over the crimes committed within their territory under the host state's domestic law. Disclaimer: All opinions expressed are those of the authors and do not necessarily reflect those of Beyond Intractability or the Conflict Information Consortium. Consequently, a thorough analysis of the above-mentioned domains leads us to believe that a major problem in dealing with sexual offenses committed by U.N. personnel is that responsibility for prosecuting peacekeeping military personnel lies almost exclusively in the hands of the troop-contributing states. International Journal of Law, Crime and Justice, 40(3), 233. As Jeni Whalan notes, Resolution 2272 is simultaneously significant and flawed. If peacekeepers see that the more robust measures contained in Resolution 2272 are being enforced, their perception of effective impunity will be dented, in turn prompting many to act differently. Available from . With the increase of peacekeeping operations particularly after the end of the Cold War, growing numbers of peacekeeping officers have been accused of engaging in serious criminal offenses such as sexual abuse, sex-trafficking, soliciting prostitutes, sexually abusing minors and forcing children into prostitution. The United Nations Responses to the Sexual Abuse and Exploitation of Women and Girls by Peacekeepers During Peacekeeping Missions. The inability of the UN to deal with cases of sexual misconduct by peacekeepers is in stark contrast to announced policy, which is "zero-tolerance" concerning crimes committed by UN peacekeepers (military personnel, civilian police, military observers and civilian staff). Considering the limited success of prosecutions undertaken by national governments to date, there is a growing body of literture proposing alternative steps and recommendations that could be taken in order to successfully tackle the problem of sexual exploitation by UN personnel. Despite the U.N.’s efforts, “little appears to have changed: accountability remains the exception to the rule, new abuses continue to be reported, and the business of sexual exploitation and abuse in peacekeeping continues. The protections afforded to military peacekeepers contributed by national governments (contingent military peacekeepers) – who make up the overwhelming majority of UN peacekeepers – are also broad, but differently constituted. Some NATO troops and private contractors of the firm DynCorp have been linked to prostitution and forced prostitution in Bosnia and Kosovo, as have some U… Peacekeeper immunity is important because it dovetails with issues of impunity and prevention. For peacekeepers found or suspected to have committed a crime in-mission, the main punishment is administrative: they are suspended, investigated by internal oversight units, and potentially repatriated, demoted, or fired. Second, it will look at recent remedial approaches and recommendations and assess the level of their successful implementation. And Statebuilding result of complacency and unimplemented strategies is impunity among peacekeepers ” ( 2009, p. 2 ) key. 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