Sexual Exploitation and Abuse by UN Peacekeepers

Towards a Hybrid Solution

Cassandra Mudgway

• Publisher: Routledge
• Year: 2018
• ISBN:
  9781351579551
• Edition: 1
• Topic: Law
• Subtopic: Civil Rights in Law
• Index: Law

Sexual exploitation and abuse by United Nations (UN) peacekeepers is not an isolated or recent problem, but it has been present in almost every peacekeeping operation. A culture of sexual exploitation and abuse is contrary to the UN's zero-tolerance policy and has been the target of institutional reforms since 2005. Despite this, allegations of sexual abuse continue to emerge, and the reforms have not solved the problem. This book is a response to the continued lack of accountability of UN peacekeepers for sexual exploitation and abuse. Focusing on military contingent members, this book aims to analyse ways in which the UN can fill the accountability gap while taking a feminist perspective and emphasising the needs of victims, their communities, and the host state.

This book directly challenges the status quo of relying on troop-contributing countries (TCCs) to hold their peacekeepers to account. It proposes first, the establishment of a series of hybrid courts, and second, a mechanism for dealing with victim rehabilitation and reparation. It addresses these topics by considering international and human rights law and will be of interest to researchers, academics, policymakers, and students with an interest in international criminal law, United Nations peacekeeping, and peace studies.

1 Memorandum of Understanding

Cassandra Mudgway

The overall objective of chapters one and two is to examine the international legal framework in relation to sexual exploitation and abuse as well as the extent to which there are positive obligations on troop-contributing countries (TCCs) to respond to allegations against their military contingent personnel. These chapters will expose the gaps that exist with respect to obligations to exercise criminal jurisdiction. Further, they will confirm the primary role of TCCs within the current legal framework, and that the interests of victims, their communities, and the host state remain largely absent.

There are two instruments that contribute to the legal framework of United Nations (UN) peacekeeping operations: The Status-of-Forces Agreements (between the UN and the host state) and the Memorandum of Understanding (between the UN and TCC).¹ They both govern the jurisdiction of states and the immunity of UN personnel. The current version of the UN Model Memorandum of Understanding (MOU) provides the most detailed provisions governing investigation and accountability requirements on behalf of TCCs and is therefore the most relevant and will be the focus of this chapter.

This chapter will begin with a brief overview of jurisdiction in UN peacekeeping operations generally, followed by an examination of the Status-of-Forces Agreements (SOFAs). This will provide the necessary background for a close analysis of the MOU. After providing a summary of the history of the use of MOUs in peacekeeping, the chapter will turn to their legal status. This section will argue that the MOU is a treaty. There are important implications if the MOU is accepted as a treaty; for example, TCCs may be in breach of treaty obligations rather than just policy if they fail to exercise their criminal jurisdiction over sexual exploitation and abuse. Consequentially, the MOU’s provisions relating to accountability may carry more normative weight.

Secondly, this chapter will consider the provisions of the MOU itself. Standards related to sexual exploitation and abuse are annexed to the MOU, making it necessary to examine the extent to which these documents are incorporated into the MOU (to form part of the legally binding treaty). Articles 7 quater, 7 quinquiens, and 7 sexiens were added in 2007 to clarify obligations relating to criminal accountability of military contingent members. These provisions will be the main focus of analysis. Thirdly, this chapter will consider the possible consequences for breaching the MOU.

Jurisdiction

From the inception of the United Nations Emergency Force I (UNEF I)² in 1956 (established to help end the Suez Crisis), TCCs have received the benefit of exclusive criminal jurisdiction over members of their national military contingents.³ The purpose of this policy was to encourage member states to contribute troops from their military forces without the fear of being subjected to foreign jurisdiction for crimes committed while on mission. Specifically, there was concern that TCCs’ military personnel may be tried in a possibly defective legal system, perhaps without procedural safeguards in relation to evidence collection or relevant civil rights.⁴ Immunity from host state jurisdiction provides important protection for foreign military forces so they can perform their official functions without interference.⁵ Additionally, granting exclusive criminal jurisdiction to the TCC supports the practice of sovereign immunity.⁶ The discipline or criminal punishment of members of military forces in particular is often considered a special matter of sovereignty for the sending state.⁷

Generally, customary international law dictates that states are not permitted to proscribe or exercise their jurisdiction unless it can be supported by certain jurisdictional principles.⁸ Jurisdiction over criminal conduct is primarily based on the territoriality principle, where a state establishes jurisdiction on the basis that the crime has been committed within the state’s own territory.⁹ In the peacekeeping context, this would mean that the host state would usually have jurisdiction over criminal offences committed by peacekeeping personnel based on the territoriality principle. However, under the Status-of-Forces Agreement (SOFA), the host state waives its jurisdiction in regard to military contingent members, confirming their immunity.

Status-of-Forces Agreements

SOFAs set out the privileges and immunities to be enjoyed by UN personnel when they enter the host state and execute their operational duties as mandated by the Security Council. The agreements also govern other concerns, such as liabilities for civil claims,¹⁰ use of uniforms and arms,¹¹ transportation,¹² and the settlement of disputes.¹³ The relevant provision in terms of criminal jurisdiction over military contingent members is article 47(b):

Military members of the military component of the United Nations Peacekeeping Operation shall be subject to the exclusive jurisdiction of their respective participating states in respect of any criminal offences which may be committed by them in [host country].

This provision reinforces the doctrine of sovereign immunity; it also makes clear that the host state waives its criminal jurisdiction over such personnel. The host state is, however, relying heavily on the TCC to exercise its criminal jurisdiction.¹⁴ Additionally, the footnote to article 48 states:¹⁵

Upon conclusion of a specific agreement, the provision in question could instead be inserted in a memorandum of understanding where further clarifications on the terms of an agreement are usually provided.

TCCs retain exclusive criminal jurisdiction on the understanding they will indeed exercise it. The SOFA dictates that the Secretary-General is to ensure this by obtaining formal assurances from each TCC to this end – this is required (as opposed to being merely optional) by article 48. Further, the footnote of article 48 suggests that assurances could be inserted in the MOU as part of the usual terms of that agreement.

Since UNEF I, SOFAs have been concluded in one way or another.¹⁶ The UN Model SOFA was drafted in 1991 to facilitate negotiation of such agreements based on past state practice.¹⁷ Where a SOFA has not been concluded before the commencement of a particular mission, the Security Council has, on such occasions, stated that the Model SOFA will apply in the interim.¹⁸ This continued state practice has brought about much scholarship on the legal status of the Model SOFA. Some academics¹⁹ have debated the extent to which the Model SOFA now represents customary international law. If it were the case that the Model SOFA represents custom, then the requirement of a formal assurance is more cogent. As will be seen below, between 1997 and 2007 the Model MOU did not contain a provision on assurances, and there had also been a lack of state practice in providing them. The SOFA and its legal status have received a lot of scholarly attention; however, there is a gap in the literature on the MOU and its precise legal status, which is unexpected since it is the partner agreement to the SOFA.

Memorandum of Understanding

This section will provide an analysis of the MOU in regard to its legal status and the contents of its provisions. There is evidence to support the argument that the MOU is a treaty, rendering its provisions relating to sexual exploitation and abuse more than just UN standards or policy. Essentially this section will assert that there are obligations on states to exercise their criminal jurisdiction over sexual exploitation and abuse. However, this does not equate to an obligation to investigate or prosecute, rather to transfer cases to appropriate national authorities. Overall, the MOU supports the primary role of TCCs and defers to domestic prosecutorial discretion without enforcement mechanisms on behalf of the UN. Analysis will expose the MOU’s central weakness concerning accountability: it does not promise that justice will be seen to be done, and it renders victims and the host state powerless to pursue justice at all.

History

Since UNEF I, agreements were concluded between the UN and TCCs governing financial administration and logistics of providing personnel and equipment to peacekeeping operations.²⁰ The agreements also served to supplement the terms relating to immunity and privileges attributed to personnel under the SOFA.²¹ In 1991, a Model Troop Contribution Agreement (TCA) was drafted, based upon previous state practice and exchanged letters, to serve as a basis of negotiation between TCCs and the UN.²² This model agreement was subject to important amendments in 1997 and 2007. The 1997 amendment changed the TCA into a Memorandum of Understanding,²³ and its terms were stripped down to the most basic provisions. The Model MOU was again amended in 2007 to the current version.

The 2007 MOU is one of the most positive developments that came through the UN’s many reforms post-2005. The amendments followed several recommendations made by official UN reports and academic commentary.²⁴ Both the Zeid Report and the first Report of the Group of Legal Experts identified the need for clear provisions governing accountability of personnel.²⁵ The second Group of Legal Experts Report focused particularly on the need to include the UN codes of conduct and the Secretary-General’s 2003 Bulletin on Special Measures for Protection from Sexual Exploitation and Sexual Abuse (S-G Bulletin).²⁶ Before 2007, the UN codes were not standardised across all categories of UN personnel.²⁷ The 2007 amendments saw the introduction of several detailed provisions pertaining to the application of the UN standards of conduct,²⁸ discipline,²⁹ investigations,³⁰ exercise of jurisdiction, and accountability.³¹

Legal status

A common designation used among scholars to describe the Model MOU is an “international agreement” between the UN and TCCs.³² However, the term “bilateral treaty” has seldom been used.³³ Although a treaty need not explicitly be designated as such, the absence of such designation does raise the issue of legal status. There has been some argument to suggest that the term “international agreement” is different from “treaty”, even under the Vienna Conventions.³⁴ Michael Brandon argues that “international agreement” is more generic than “treaty”.³⁵ The term “international agreement” includes treaties and other in...