There is no clear legal framework on accountability for the crimes committed by United Nations’ peacekeepers during peacekeeping missions. The most common measure of accountability is repatriation of the accused person. This measure, however, is only disciplinary in nature and far from being a proper mechanism to hold the accused accountable and provide redress for the victims, writes Nafiul Alam Shupto
THERE has been an alarming rise in the number of sexual exploitation and abuse allegations against United Nations’ peacekeepers in the last few years. In addition to famine and insecurity in the conflict zones, sexual violence by peacekeepers aggravated the severe conditions of the victims in Haiti, Somalia, Democratic Republic of the Congo and in the Central African Republic. Cases in these regions have exploded discussions about accountability of UN peacekeepers in relation to such crimes.
For example, in 1996, Mozambique politician Graça Machel accused the peacekeepers in her country of sexual exploitation and abuse. With sexual abuse and exploitation crimes going unpunished for a long time, there is now a generation of ‘peacekeepers’ babies’ in the Democratic Republic of Congo.
A recent study of UN Stabilization Mission in Haiti based on conversations with over 2,500 Haitians who shared the experiences of women and girls in the communities that hosted peace operations. Of the 2500 contacted, about ten per cent revealed stories about peacekeeper-fathered children. Besides the soldiers, there is a big number of UN officials and experts involved in such crimes during peacekeeping mission and in order to address this legal gap, the General Assembly, at its 61st session in 2006, decided to add to its agenda a draft convention on the criminal accountability of UN officials and experts on mission which is yet to materialise.
That being said this write-up will address the legal and procedural gaps for which the victims of the UN peacekeepers do not get any justice for crimes like sexual exploitations and abuse. Additionally it will illustrate the probable legal arguments to overcome the crisis.
It has long been understood that the UN has absolute immunity from the jurisdiction of national courts. However there exists a counterbalance to the UN’s absolute immunity since section 29 of the Convention on Privileges and Immunities of the UN requires the organisation to resolve any private law claims through alternative dispute resolution mechanisms. Crucially, private law claims in the context of peacekeeping operations require criminal, illegal or unlawful actions or activities of the mission or its members. Where the peacekeeping operation or its members have immunity from jurisdiction of local courts in respect of a private law claim, the Model Status of Forces Agreement provides for alternative dispute settlement mechanisms. This raises concerns about accountability and internal review.
In all of those cases, individuals’ ability to access alternative mechanisms for dispute resolution has been used to show that their rights have been realised. But in reality through this alternative mechanism, there is a practice of providing lump sum payment to the victims. Therefore the right to get justice and access to court lacks far behind. In contrast to the principal of absolute immunity, the European Court of Human Rights has made clear that it regards the European Union as bound by international human rights law. The court held in Waite and Kennedy v. Germany and Beer and Regan v. Germany that while immunities of international organisations might pursue a legitimate aim that would result in access to a court being restrained, this should not be absolute.
Similar to the context, it is observed that the UN is also legally bound by international human rights law. The UN’s legal personality means that it is bound by customary international law and this includes certain human rights. UN Charter provisions, including Articles 1(3), 55, and 56, also require the UN to respect human rights. UN members arguably have a positive duty to enforce the Charter’s human rights obligations over and above any other international law granting immunity. The position that the UN has immunity even where that would violate human rights has been deemed counter-intuitive. Where there is a failure to provide reasonable access to alternative mechanisms for resolving disputes, it seems clear that UN absolute immunity will violate its obligations under international human rights law and those set out in Article 55(c) of the Charter.
Article 47(b) of the Model Status of Forces Agreement safeguards the countries that contribute soldiers to UN missions from being trialled in the national jurisdiction of the host state. It further empowers the Troop Contributing Countries to have the responsibility to investigate and prosecute criminal conduct by their soldiers. Until recently, most TCCs had a poor record of bringing the perpetrators to justice for the crimes committed in the mission area.
A well-known case in this regard is that of the Mothers of Srebrenica, who lost husbands and sons in the genocide committed during the Bosnian War. Although in 2008 the Dutch courts found the UN to be immune from jurisdiction, the Hague Appeals Court later, in a civil case, in 2017 delivered a precedent-setting judgment, finding the Netherlands partly liable for the crimes committed in Srebrenica.
The Court held that the Netherlands was responsible for the conduct of the Dutch peacekeepers who were found guilty mainly of neglect. The Court stated that the Dutchbat troops should have known the circumstances. Although the Dutch Court’s decision clearly represents a precedent, it is yet unlikely that all involved states would soon bear responsibility for the misconduct or neglect of their nationals in peacekeeping missions.
Moreover the United Nations Security Council Resolution of March 11, 2016 tells us that the responsibility lies to TCC. Therefore, in reality, TCC often was seen to care about the investigation and prosecution. Rather they tend to send fewer troops in the peacekeeping mission. This counterproductive measure between the UN and TCC is one of the reasons the perpetrators remain unpunished.
Another mechanism could be placing the responsibility on the UN for the private conducts of its peacekeepers in cases when the UN had overall control on the troops. The primary roadblock in proving this accountability is that there is no treaty obligation for the UN to be held responsible for damages resulting from the services rendered by peacekeeping missions. The International Law Commission's Articles on responsibility of international organisations have not entered into force and therefore do not have a binding effect on the UN.
Nonetheless in the case Behrami and Behrami v France and Saramati v France Germany and Norway, the European Court of Human Rights excluded the responsibility of troop-contributing states with the argument that the UN exercised ‘ultimate authority and control’ and NATO had an effective control. Therefore it proves in the context of peacekeeping forces or other cases where states contribute troops to the missions of the UN. As a rule, the UN assumes responsibility for the actions of peacekeeping forces as subsidiary organs of the UN or for troops under the flag of the UN, in so far as they are under the control and the command of the UN.
In the aftermath of the Second World War, the UN was formed to ensure international peace and security therefore such provisions and practices would be an irony if it continues to exist. Considering everything it can be said that there is no clear legal framework on accountability for crimes committed by UN peacekeepers during peacekeeping missions.
The most common measure of accountability is repatriation of the accused person. This measure, however, is only disciplinary in nature and far from being a proper mechanism to hold the accused accountable and provide redress for the victims.
Thus, so far neither the UN nor the deployed states have come up with a practical and sustainable way to put an end to the impunity with which so many women and children in conflict zones are subjected to sexual exploitations and abuse crimes.
Nafiul Alam Shupto recently graduated from North South University
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