For readers who have seen the film The Whistleblower, directed by Laryssa Kondracki, which graphically portrayed trafficking in Bosnia and Herzegovina just after the ending of the war in 1995, you will know the feeling of absolute outrage and frustration as decency and morality fled and self interest, power and the integrity of institutions trumped the need for accountability and justice. Law seemed to have abandoned those who were most in need of it. After all these years I am still incredulous, still angry, and, with many others, determined that the impunity of those who commit such acts must not continue.
Of course, that impunity should not have been there in the first place but a constellation of interests in the post conflict environment served to create a reality of boys will be boys, money will be made, and the business of peace keeping will continue without critique or scrutiny.
There is continued failure by the United Nations and other international organisations to really tackle the root causes, to embrace the legal obligations and hence the solutions that do exist to ensure that sexual exploitation and trafficking are taken seriously, and that the full weight of the law is brought to bear on those who violate it.
The explanation lies in how gender plays out in conflict and post conflict and how institutions that work in those environments, have a nasty habit of replicating the conduct of violence and discrimination which they are there to protect against and to redress. How this happens is a matter of the gendered constructs of masculinities,- always exacerbated when there is militarism and war, -and the absence of any sort of institutional response to prevent or address it. What is interesting is that those who perpetrate acts of sexual violence in the context of trafficking, are a minority numerically. Which means that the silence of the majority has to be understood and addressed: why are they silent, what needs to be done to end that silence and how do we get them to be part of the solution?
Law, particularly criminal law, should reflect the nature of the harm done. In trafficking that includes crimes of violence, including rape, and in its most severe form, directly or indirectly the crime of slavery or slavery like practices. In the context of peacekeeping the law has become ridiculously and needlessly disorientated as questions of jurisdiction, immunity, nature of service and the respective roles of international organisations vis a vis the State are thrown together.
In 2013 the Women's International League for Peace and Freedom ( WILPF) held expert meetings to try to untangle the knots as to what could apply, when, and to whom - and not surprisingly, it is entirely possible to secure accountability. What has been lacking all along is the political will and an interpretation of law which absolutely works in favour of perpetrators.
In 2001 the then Secretary General Kofi Annan, announced his Zero tolerance policy to address the scandals that had hit the UN in Africa and BiH. The problem with the policy is that, absent a solid mechanism for enforcement based on law, it remains a morality based policy too broad, too all encompassing, and too much at odds with the institutional culture to be effective. The implementation of the policy has been to send home men who breach the zero tolerance policy. It can be applied to men who pay for sex, even if its with the agency of a sex worker, for those who have an actual relationship with a local woman, and those who have sex with women who they know to have been trafficked. Cleary there should be distinctions. When a criminal offence is committed it must not be dealt with by administrative process.
Getting to the accountability part is fraught with problems: obstacle one is creating a safe environment for women to come forward and complain. There was a great deal of information available in Bosnia because of the many NGOs who provided help and the right kind of assistance to women who were able to escape and find them. No mean feat of itself. Over time a system was developed which combined the need to close the “brothels” with the protection of human rights. It worked when intelligently applied and made it possible for more women to access places of safety and regain agency. It failed when the police, (under the auspices of UN International Police Task Force) raided the same places again and again, and the protection of the rights of the victims was subordinated to the law enforcement approach, meaning that women had to be taken to police stations and had to be interrogated as to her traffickers. Very, very few are in either a physical, psychological or secure space to be able to do so. That makes step two very difficult.
In theory, if a complaint is made about a UN employee, the immediate investigation should be done by the mission. If evidence is found then the Office of Internal Oversight is engaged. This also happens should an individual alert them to a “situation” which is not being addressed by the mission. Therein lies another obstacle, the fate of the Whistleblower. Ostensibly the zero tolerance policy actively encourages whistleblowing with special protections for those who do. Unfortunately, to avail yourself of that protection you have to trust to the senior staff to reach a decision which could then result in risking funding, reputation, and questioning their management. Over 300 individuals have tried to claim protection but less than a handful have been granted.
Then there is the problem of the locus of investigation and prosecution. States in conflict or coming out of conflict often have weak, dysfunctional, or entirely failed systems for the administration of criminal justice. There are limitations of practical capacities to investigate and prosecute crime, and, where these systems do not meet basic international human rights standards they will not be acceptable tribunals for the prosecution of UN PKO personnel. Even where capacity and standards are met, it is unlikely that the prosecution of foreign offenders would take precedence over other priorities in post-conflict and post-emergency situations.
Then there is the issue of immunity. There are in fact, very few positions within the UN system that carry absolute immunity from legal processes. Most personnel have functional immunity that allows for prosecution where crimes are committed by an individual acting in his or her personal capacity. The Secretary-General (‘S-G’) has the “right and the duty” to waive immunity “in any case where, in his opinion, the immunity would impede the course of justice and can be waived without prejudice to the interests of the United Nations”. Logically the immunity issue should be easily overcome since either (i) the offences are not committed by offenders acting in their official capacity and so their immunity is not engaged, or (ii) the Secretary General would be under a duty to waive immunity in the event that it applied. It almost never happens. In Bosnia there was not even a request for a waiver.
Most immunity derives from Status of Forces Agreements (SOFAs) and Memoranda of Understanding (MOUs). The 1946 Convention on the Privileges and Immunities of the United Nations does not apply to military personnel serving as peacekeepers. Instead, these individuals receive immunity from host-state jurisdiction under the SOFA that the UN enters into with the host state. Under these SOFAs, troops remain exclusively under their sending state’s jurisdiction. Unfortunately most SOFA/MOU’s are generally not sufficient under the sending states’ domestic law to establish extraterritorial criminal jurisdiction. As a result there is a substantial risk that when allegations arise there will be a jurisdictional vacuum. It is painfully ironic that terms intended to set out jurisdictional authority may in fact serve to dis-apply them
The solution to this potential gap in jurisdictions is very simple. SOFAs and MOUs must address the issue of jurisdiction for investigation and prosecution, and identify the processes of accountabilities in the event of violations. If the sending state is unwilling to agree this, or lacks the capacity to give effect to its investigative/prosecutorial jurisdiction, or lacks relevant domestic legislation relating to extra-territorial criminal jurisdiction, it must not be allowed to contribute personnel to the UN PKO. The argument raised by the SG is the need for troops for peace keeping. But peace for whom? The long-term consequences for the mission, the Organization, and for those who are abused by the personnel are so serious as to be that there should be no question as to adopting this position.
There are options, and the United Nations must engage more fully. It can address limitations in capacity and standards for the purpose of ensuring that the host state is able to investigate and prosecute offences committed by UN PKO personnel within its territory. It could act in partnership with the host-state to investigate and prosecute offences based on preliminary investigations conducted by the Office of Internal Oversight (OIOS) and the Conduct and Disciplinary Units which already take place. The Status of Mission Agreement and UN Security Council mandate would specifically address this point.
There are many, many measures that could and should be taken, not just by the UN but by all international organisations engaged in peacekeeping, there are also obligations arising ergo omnes on States to ensure investigation and prosecution of crimes which are international in character. It rarely happens.
All of which leaves an enormous protection gap which absolutely must be addressed. Responses to trafficking and SEA are literally just that: reactive to a crisis which has already happened and not effective prevention. A lesson should be learnt from the way in which sexual violence in armed conflict is being addressed, and whatever the criticism as to approaches taken, (and there are many, some with good reasoning), there is now an understanding that rape will almost inevitably take place, that there must be accountability, there must be appropriate support for the survivors, and that this will require resources. There is also growing political will to work on prevention which is laudable and necessary. This thinking has to be transferred to issues of trafficking and sexual exploitation as history tells us that this too has been an integral part of armed conflict and its aftermath but an element that, as we have also seen, is ignored.
Madeleine Rees will be speaking at the Trust Women Conference in London December 3-4
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