|Hon. Marie Deschamps|
5. Prevention Through Individual Accountability
One of the most important ways in which the UN can prevent future instances of sexual exploitation and abuse by peacekeepers is by holding those who sexually abuse civilians accountable for their crimes. It is only by seeing that such crimes will be met with accountability measures, including criminal prosecution, that individual troops will begin to take the zero tolerance policy seriously. At the same time, making accountability measures more transparent for victims will help to ensure that communities do not lose faith in the integrity of UN military missions. In this section, the Panel presents a number of mechanisms to improve accountability.
Several accountability provisions are already integrated in Memoranda of Understanding (“MOUs”) governing relationships between UN and troops under UN command. For example, TCCs are required to undertake to inform the UN of any actions taken to substantiate and address allegations. However, the Panel is not aware of any such accountability provisions in agreements between the UN and troops not under its command. From a human rights perspective this gap is hardly justifiable.
The UN should bridge the gap between the rules governing TCCs under UN command and those applying to troops not under UN command by negotiating provisions into its agreements with all TCCs that are consistent with the obligations under the existing SEA policies and human rights framework. TCCs should join in the fight against impunity by agreeing to include provisions ensuring accountability. More specifically, agreements between the UN and TCCs should include robust measures facilitating investigation and prosecution of crimes of sexual violence by the relevant TCC, the UN or the host state, and enabling victims, the local population, and the UN, to know whether and how the alleged perpetrators are held
accountable. While control over the accountability processes will largely remain in the hands of the TCCs, the UN should play an active role in supporting them to conduct appropriate and sensitive investigations, to preserve evidence for use in judicial processes, and to communicate back to victims and the local population the outcome of legal proceedings. Recommendations with respect to accountability provisions are discussed further in the next section.
5.1. Revisiting the prosecution process
It is well-established that accountability processes currently in place for the criminal prosecution of individual peacekeepers for crimes of sexual violence are perceived to be ineffectual. A significant impediment to successful prosecution has been the agreement of the UN to date that TCCs retain exclusive jurisdiction to prosecute crimes perpetrated by their troops under the
TCC’s domestic law. These agreements are generally built into MOUs signed by the UN and the TCCs.318 This means that where the TCCs choose not to exercise their jurisdiction, or engage in flawed processes which may put victims and witnesses at risk, or intentionally interfere with the
process so as to exonerate the accused, the hands of the UN and the host country are tied. This problem was noted in particular in relation to another set of human rights violations in CAR, where the International Commission of Inquiry on the Central African Republic emphasized that “the existing arrangements for conducting inquiries and reporting on the results do not appear to provide any assurance that justice will be done, or be seen to be done, and fails to satisfy the rights of the family members of the victims to an effective remedy. In addition to calling for each of the relevant forces to take appropriate steps in this regard, (the Commission) considers that it
is imperative for the Security Council to address the issues raised by these allegations by putting in place new arrangements to guide such cases in the future.”319
In September of this year, the Secretary-General endorsed the Zeid Report’s recommendation for the use of on-site court martial proceedings in host countries.320 This would enable more victims and members of the affected community to participate and see justice being done. Concerns remain, however, that a judicial process conducted by the TCC’s own military may not
318 SOP on Conduct and Discipline of TCCs, art. 5; Report of the Special Committee on Peacekeeping Operations and its Working Group on the 2007 resumed session, A/61/19(Part III), 11 June 2007, adopting Annex: Revised Draft Model Memorandum of Understanding, art. 7 quinquiens (1).
319 Final Report of the International Commission of Inquiry on the Central African Republic, S/2014/928,
19 December 2014, para. 574 (p. 119/128).
320 Report of the Secretary-General on the Future of UN Peace Operations: Implementation of the Recommendations of the High-level Independent Panel on Peace Operations, A/70/357-S/2015/682, 2 September 2015, para. 120; Secretary-General Tells Troop Contributors No One With Past Record of Abuse Can Ever Serve UN, Outlining Plans for Victim Trust Fund, SG/SM17081-PKO/520, 17 September 2015: available at http://www.un.org/press/en/2015/sgsm17081.doc.htm (accessed 29 November 2015).
be sufficiently independent,321 or that it might lack the expertise required to respond to the unique needs of victims of sexual abuse, children in particular.322 TCCs may also oppose such
proceedings taking place in the host country rather than in their own domestic courts. Given this range of concerns, it seems likely that the proposal will continue to face significant opposition from TCCs and victims’ advocates alike. Moreover, even if the political will can be found to support on-site court, consideration also will need to be given to ensuring that these proceedings are open to the public, except where legitimate protection concerns are demonstrated (such as in the case of child victims).
Given these challenges, alternative mechanisms must be considered in order to ensure respect for human rights and due process in the context of the investigations and prosecutions, and to allow victims and affected communities greater access to efforts to hold perpetrators accountable.
In order to reduce the instances where the TCC does not follow up on allegations (or is perceived not to have followed up), the UN should consider building on the model status of forces agreement (“SOFA”) adopted by the North Atlantic Treaty Organization (“NATO”).323 Where the NATO SOFA applies, primary or subsidiary jurisdiction is established over selected
crimes committed in the host state, depending on the specific nature of the offense. If the country that has primary jurisdiction chooses not to exercise it, then the other country may choose to exercise its subsidiary jurisdiction.324 NATO SOFA also provides for mutual
assistance between the TCC and the host state in carrying out the investigation and sharing information.325
This approach is particularly apposite given the gap in impunity that arises as a result of the unwillingness or inability of some TCCs to exercise their jurisdiction in a timely manner. Following on the NATO SOFA model, TCCs could be given primary, but not exclusive, jurisdiction where one of the TCC’s troops is alleged to have committed sexual violence in the host state in contravention of the host state’s domestic laws. However, agreements with TCCs should provide that, if the TCC fails to take prompt action to investigate the reported violations and prosecute suspects within a specified period, the TCC would be deemed to have waived its primary jurisdiction. Host countries—with, if necessary, the support of the UN—would then be
321 See OIOS 2015 SEA Evaluation Report, para. 25.
322 See OIOS 2015 SEA Evaluation Report, para. 25 (noting that investigation standards varied greatly with some “considered very poor”).
323 Agreement between the Parties to the North Atlantic Treaty Regarding the Status of their Forces, 19
June 1951 (last updated 14 October 2009) (“NATO SOFA”), available at http://www.nato.int/cps/en/natohq/official_texts_17265.htm (accessed 28 November 2015). 324 NATO SOFA, art. VII(3).
325 NATO SOFA, art. VII(6)(a).
free to exercise subordinate jurisdiction over the crimes committed within their territory under the host state’s domestic law. Consistent with its human rights mandate, the UN should monitor proceedings in either the TCC or host state to ensure compliance with prevailing international standards, particularly with respect to the protection of victims of sexual violence.
Modifications to the agreements with non-UN command troops are critical to any effort to reduce sexual exploitation and abuse by peacekeepers going forward. Sexual violence in peacekeeping operations will not end until each and every soldier understands that such crimes will be met with legal consequences. This requires a coordinated effort by the UN, TCCs and, when possible, host countries, to ensure that perpetrators are prosecuted in a timely and effective way by the TCC, or in default of which, the host country.
Negotiate with TCCs provisions ensuring prosecution, including by granting host countries subsidiary jurisdiction to prosecute crimes of sexual violence by peacekeepers.
5.2. Increasing investigative and prosecutorial transparency
Even where prosecutions occur, the proceedings generally take place far from where the crimes were committed, and victims and affected communities are not routinely apprised either about efforts to hold perpetrators accountable, or about the outcome of the legal proceedings in the
troop’s countries of origin.326 Without any information about steps taken to hold perpetrators
accountable, however, it will generally appear to victims and the local population that the perpetrators have not faced any consequences for their actions. This, in turn, erodes the trust of the local community in peacekeepers and in the UN. Further, it sends a clear message to other potential perpetrators in the country that such violations will not be taken very seriously.
Moreover, in circumstances in which victims face continuing protection issues, and/or have been relocated for their own security, victims need information about the outcome of any judicial proceedings in order to know whether the security risks to them remain.
In connection with the Allegations, for example, the victims and the local community in CAR have not been fully or regularly apprised about the accountability measures that the French government has undertaken. The result is a silence which suggests inaction; this, in turn,
326 See OIOS 2015 SEA Evaluation Report, para. 25.
creates an appearance of impunity that discourages victims from bringing forward allegations in the future, and emboldens predators.327
In the context of international prosecutions, mechanisms already exist to address issues of territorial jurisdiction. Commissions rogatoires, mutual legal assistance agreements,328 and ad hoc arrangements such as the one between Chad and Senegal for the Extraordinary African Chambers,329 may not only make the collection of evidence in the host country easier (thereby furthering the ultimate goal of accountability), but will also create greater transparency for
victims and local populations who can see that justice is being pursued. The UN and the TCCs can and should build on such mechanisms.
In the Panel’s view, agreements with international forces should not only include an agreement that the TCC will exercise its jurisdiction to prosecute or allow for subsidiary jurisdiction as under the NATO SOFA model, but also that it will periodically disclose information on the measures that have been implemented to investigate or prosecute the alleged perpetrators. These provisions would allow the UN, victims, and the broader public to monitor the efforts that have been deployed and the progress made with respect to accountability.
While a model cooperation agreement uniform to all TCCs and host countries may be difficult to adopt in view of the diversity of legal systems, provisions requiring such cooperation could be included in agreements between the UN and TCCs prior to deployment.330 The UN should facilitate and encourage these cooperative and mutual legal assistance provisions by supporting
327 Secretary-General Tells Troop Contributors No One With Past Record of Abuse Can Ever Serve UN, Outlining Plans for Victim Trust Fund, SG/SM17081-PKO/520, 17 September 2015: available at http://www.un.org/press/en/2015/sgsm17081.doc.htm (accessed 29 November 2015).
328 See, for example, General Assembly Resolution 55/25, dated 15 November 2000, adopting the United
Nations Convention against Transnational Organized Crime, art. 18; Inter-American Convention on Mutual Assistance in Criminal Matters, 23 May 1992; European Convention on Mutual Assistance in Criminal Matters, 20 April 1959; Council of Europe Convention against Sexual Exploitation and Sexual Abuse, 25 October 2007, art. 38; Economic Community of West African States Convention A/P. 1/7/92 on Mutual Assistance in Criminal Matters, 29 July 1992. See also General Assembly Resolution 68/105.
Criminal Accountability of United Nations Officials and Experts on Mission, A/RES/68/105, 18 December 2013 (GA Resolution on Criminal Accountability), paras. 5(a), (b), (c), (d). See also, with respect to civil and commercial matters: European Community Council Regulation No. 12016/2001 on Cooperation between Courts of Member States in the Taking of Evidence in Civil or Commercial Matters, 28 Mary 2001, art. 17; Inter-American Convention on Letters Rogatory, 30 January 1975.
329 Senegal-Chad Judicial Cooperation Agreement: Accord de cooperation judiciaire entre la République
du Sénégal et la République du Tchad pour la poursuite des crimes internationaux commis au Tchad durant la période du 7 juin 1982 au 1er décembre 1990, 3 May 2013.
330 See, for example, SOP on Conduct and Discipline of TCCs, Sections 15.1 to 15.3.
TCCs with reasonable logistical and other practical means to improve transparency in accountability, in accordance with international standards.331
Regardless of whether criminal proceedings are conducted, stronger mechanisms need to be put in place to ensure effective follow up on accountability measures, particularly outreach to victims and affected communities.
Finally, the Secretary-General has called on TCCs to promptly notify the UN on the progress of investigations, including the outcome of cases.332 Yet no protocol has been developed or proposed for advising victims of the outcomes of TCC investigations or prosecutions. These follow-up measures should be facilitated by the Coordination Unit, which is responsible for coordinating the UN’s response to allegations of sexual violence by peacekeepers.333
Negotiate the inclusion in agreements with TCCs of provisions ensuring transparency and cooperation in accountability processes.
5.3. Immunity in the context of accountability
When a TCC initiates proceedings with a view to prosecuting sexual offenses by one of its peacekeeping troops, the UN should facilitate these processes.
UN officials are immune from legal process “in respect of words spoken or written and all acts performed by them in their official capacity”.334 However, the Secretary-General has the authority and duty to waive immunity where, in his opinion, immunity would impede the course of justice and it can be waived without prejudice to the interests of the UN.335 Given the legal issues involved in requests for the waiver of privileges and immunities under the Convention, all requests for waiver of immunity are reviewed by OLA before a final determination is made by
331 See SOP on Conduct and Discipline of TCCs, Section 15.2 (“missions shall liaise with competent authorities within mission areas, including host countries, with a view to facilitating the conduct of the investigation by the concerned TCC”). See also GA Resolution on Criminal Accountability, para. 4.
332 Secretary-General Tells Troop Contributors No One With Past Record of Abuse Can Ever Serve UN,
Outlining Plans for Victim Trust Fund, SG/SM17081-PKO/520, 17 September 2015: available at http://www.un.org/press/en/2015/sgsm17081.doc.htm (accessed 29 November 2015). This is also required under the SOP of Conduct and Discipline of TCCs, paras. 16.1, 16.3.
333 2015 SG Report on SEA, para. 74.
334 Convention on UN Privileges and Immunities, Section 18(a).
335 Convention on UN Privileges and Immunities, Sections 14, 20, 23.
the Secretary-General.336 According to OLA, there can be no general advance waiver of privileges and immunities, even in defined circumstances, because each inquiry is fact- specific.337
The Secretary-General has announced that “[i]f, after proper investigation, there is evidence to support allegations of sexual exploitation or sexual abuse [committed by UN staff], these cases may, upon consultation with the Office of Legal Affairs, be referred to national authorities for
criminal prosecution.”338 Of particular relevance, the UN has an obligation to cooperate at all
times with the legal authorities of Member States to “prevent the occurrence of any abuse in connection with the privileges [and] immunities” accorded to its officials.339 In other words, there is no immunity for UN officials and experts on mission who commit sexual crimes because these crimes are necessarily outside the scope of any official functions.340
In the Panel’s view, the same kind of approach should be adopted for participation by UN officials and experts to investigations and prosecution where such participation will advance accountability. Indeed, OLA has recognized that, “where the United Nations itself has called for the prosecution of the accused person, and a successful prosecution may depend on the United
Nations allowing its personnel to provide evidence, the Organization should be willing to lift the immunity of such personnel to enable them to testify, as appropriate.”341 Privileges and immunities should not be a bar to UN officials and experts on mission to testify as witnesses to
crimes of sexual violence, particularly where the UN has itself referred alleged incidents of sexual violence to the responsible national authorities for investigation or prosecution.342
Consistent with these principles, in such cases, OLA should adopt an approach to immunity that presumes cooperation and active participation of UN staff in accountability process. Immunity should stand only in circumstances where the UN has determined that disclosure of information by staff members or witnesses could result in a security threat to the victims or witnesses, or where the victim did not provide his or her informed consent to the disclosure of the information.
336 See Report of the Secretary-General on Criminal Accountability of UN Officials and Experts on Mission, A/63/260, 11 August 2008, para. 67.
337 1973 U.N. Jurid. Y.B. 166-167; 1964 U.N. Jurid. Y.B. 260-261; see also 1976 U.N. Jurid. Y.B. 234-236.
338 Secretary-General’s Bulletin on SEA, Section 5.
339 Convention on UN Privileges and Immunities, Section 21. See also 2006 U.N. Jurid. Y.B. 441, 444 (discussing this provision).
340 Report of the Secretary-General on Criminal Accountability of UN Officials and Experts on Mission,
A/63/260, 11 August 2008, para. 66.
341 2008 U.N. Jurid. Y.B. 405.
342 1976 U.N. Jurid. Y.B. 234-236 (“immunities granted to diplomatic personnel or officials of International Obligations have not been a bar to such persons testifying voluntary as witnesses”).
Adopt an approach to immunity that presumes cooperation and active participation of UN staff in