Whose Zero Tolerance Counts? Reassessing a Zero Tolerance Policy against Sexual Exploitation and Abuse by UN Peacekeepers

Abstract

The UN's commitment to zero tolerance for sexual exploitation and abuse, which has been strengthened ever since the Secretary-General's 2003 ‘Bulletin’, must be understood against the general public's non-tolerance of sexual misconduct by peacekeepers. While the UN has devoted its energy to restoring the public's confidence, the implementation of the policy cannot be effective, due to the limits of the UN's command authority, without the adoption of the same policy in contingent-contributing countries, who assume even greater roles under the revised model memorandum of understanding in 2007. Furthermore, not all victims approve the UN's zero tolerance pledge, out of fear that they may lose their only recourse to making a living. While it will likely take time to alleviate existing obstacles to align all the actors involved, the general public may not be tolerant enough to allow a further moratorium.

Notes

For example, Kate Holt, ‘DR Congo's Shameful Sex Secret’, BBC News, 3 June 2004 (at: http://news.bbc.co.uk/2/hi/africa/3769469.stm); Emily Wax, ‘Congo's Desperate “One-Dollar U.N. Girls’’', Washington Post, 21 Mar. 2005, p.A01.

In this study, the terms ‘peacekeeper’ and ‘peacekeeping personnel’ are used interchangeably, embracing all personnel engaged in UN peacekeeping: see the third section of this paper for the categories of personnel included.

See ‘A Comprehensive Strategy to Eliminate Future Sexual Exploitation and Abuse in United Nations Peacekeeping Operations’, UN doc. A/59/710, 24 Mar. 2005 (‘Zeid Report’), para.3; Report of the Office of Internal Oversight Services, ‘Investigation into Sexual Exploitation of Refugees by Aid Workers in West Africa’, UN doc. A/57/465, 11 Oct. 2002.

Letter from Jean-Marie Guéhenno, Under-Secretary-General for Peacekeeping Operations, New York Times, 29 Oct. 2005 (at: www.un.org/Depts/dpko/dpko/articles/article291005.htm); UN doc. S/PV.5916, 19 June 2008, p.5 (statement of the Secretary-General Ban Ki-moon).

Secretary-General's Bulletin, ‘Special Measures for Protection from Sexual Exploitation and Sexual Abuse’, UN doc. ST/SGB/2003/13, 9 Oct. 2003 (‘2003 Bulletin’), sects.3.2(a), 5.

For example, Ray Murphy, ‘An Assessment of UN Efforts to Address Sexual Misconduct by Peacekeeping Personnel’, International Peacekeeping, Vol.13, No.4, 2006, pp.531–46; Anthony J. Miller, ‘Legal Aspects of Stopping Sexual Exploitation and Abuse in U.N. Peacekeeping Operations’, Cornell International Law Journal, Vol.39, 2006, pp.71–96; Anna Shotton, ‘A Strategy to Address Sexual Exploitation and Abuse by United Nations Peacekeeping Personnel’, Cornell International Law Journal, Vol.39, 2006, pp.97–107.

Report of the Special Committee on Peacekeeping Operations and Its Working Group, UN doc. A/59/19/Rev.1, 2005, pt.2: ‘Comprehensive Review of a Strategy to Eliminate Future Sexual Exploitation and Abuse in United Nations Peacekeeping Operations’, A/RES/59/300, 30 June 2005, para.2.

Zeid Report (see n.3 above). For details, see Miller (n.6 above).

For example, S/RES/1590, 24 Mar. 2005, para.14 (UNMIS); S/RES/1622, 13 Sept. 2005, para.13 (UNMEE); S/RES/1756, 15 May 2007, para.22 (MONUC).

In this study, the term ‘contingent-contributing countries’ embraces both troop and formed police units contributors.

See 2003 Bulletin (see n.5 above), sect.1.

Ibid., sect.3.2(d).

Ibid., sects.3.2.(b), (c).

Ibid., sect.3.1.

Dianne Otto, ‘Making Sense of Zero Tolerance Policies in Peacekeeping Sexual Economies’, in Venessa E. Munro and Carl F. Stychin (eds), Sexuality and the Law: Feminist Engagements, London: Glass House Press, 2007, p.269.

Child prostitution is prohibited separately under the Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography, UN doc. A/54/49 (2000).

UN doc. A/61/841, 5 April 2007, para.4.

Zeid Report (see n.3 above), para.86. See also Noëlle Quénivet, ‘The Dissonance between the United Nations Zero-Tolerance Policy and the Criminalisation of Sexual Offences on the International Level’, International Criminal Law Review, Vol.7, 2007, pp.668–76 (comparing the zero tolerance policy and international criminal law norms).

Report of the Secretary-General, ‘The Rule of Law and Transitional Justice in Conflict and Post-conflict Societies’, UN doc. S/2004/616, 23 Aug. 2004, para.33.

‘Draft Model Status-of-Forces Agreement between the United Nations and Host Countries’, UN doc. A/45/594, 9 Oct. 1990, annex (‘Model SOFA’), para.6. Similarly, Secretary-General's Bulletin, ‘Regulations for the United Nations Emergency Force’, UN doc. ST/SGB/UNEF/1, 20 Feb. 1957 (‘UNEF Regulations’), Reg.29.

On this point, see Article 4 of the draft Articles on the Responsibility of International Organizations prepared by the International Law Commission: ‘Report of the International Law Commission’, GAOR 59th Session, Supplement No.10, UN doc. A/59/10 (2004), p.103. It provides that ‘[t]he conduct of an organ or agent of an international organization in the performance of functions of that organ or agent shall be considered as an act of that organization under international law’ (emphasis added). While the provision concerns attribution under international law, and not that under national law, these two are rarely distinguished when the attribution to the UN is considered through the UN's procedure.

See ‘Memorandum of the Director, Office for Field Operational and External Support Activities’, United Nations Juridical Yearbook, 1986, pp.300–1.

UN News, ‘UN Will Enforce “Zero Tolerance” Policy against Sexual Abuse, Peacekeeping Official Says’, 5 Jan. 2007, statement of Assistant Secretary-General Jane H. Lute (at: www.un.org/apps/news/story.asp?NewsID=21169&Cr=sex&Cr1=abuse).

Ibid.

‘Statement by the President of the Security Council’, UN doc. S/PRST/2005/21, 31 May 2005.

Susannah Price, ‘Peacekeepers “Powerless” in DR Congo’, BBC News, 3 June 2004 (at: http://news.bbc.co.uk/2/hi/africa/3774013.stm); UN News, ‘Force Not the Solution in Violence-Ridden Eastern DR Congo, Top UN Envoy Says’, 28 Oct. 2008 (at: www.un.org/apps/news/story.asp?NewsID=28739&Cr=Democratic&Cr1=Congo).

While section 2.2 refers to ‘United Nations forces conducting operations under United Nations command and control’, it is not to apply the 2003 Bulletin to the forces, but to call attention to the Secretary-General's previous bulletin issued in 1999 on the observance of humanitarian law.

Charter of the United Nations, 892 UNTS 119, Article 101(1); Secretary-General's Bulletin, ‘Staff Regulations’, UN doc. ST/SGB/2009/6, 27 May 2009, Reg.2(c).

Administrative issuances of the UN Secretariat include administrative instructions and information circulars issued by Under Secretary-Generals or other authorized officials, as well as the Secretary-General's Bulletins. See, further, UN doc. ST/SGB/1997/1, 28 May 1997, Sects.3, 4; UN doc. ST/SGB/1997/2, 28 May 1997.

See Zeid Report (n.3 above), paras.24–5; Report of the Special Committee on Peacekeeping Operations and Its Working Group at the 2006 Substantive Session, UN doc. A/60/19, 22 Mar. 2006, para.65.

DPKO, ‘Ten Rules: Code of Personal Conduct for Blue Helmets’, 1996; DPKO, ‘We Are United Nations Peacekeepers’, 1996 (at: www.un.org/Depts/dpko/dpko/info/selectedpsdg.shtml#norms).

UN doc. A/60/19, 22 Mar. 2006, para.65.

‘Conditions of Service for International UNV Volunteers’, as last amended in Aug. 2006, Appendix XVII, accessed at www.unv.org/en/how-to-volunteer/cos.html; ‘General Conditions of Contracts for the Services of Consultants or Individual Contractors’, UN doc. ST/AI/1999/7/Amend.1, 15 Mar. 2006, annex.

‘Revised Draft Model Memorandum of Understanding’, UN doc. A/61/19 (Part III), 12 June 2007, annex (‘Revised Model MoU’). The model MoU forms a part of the COE Manual: ‘Manual on Policies and Procedures Concerning the Reimbursement and Control of Contingent-Owned Equipment of Troop/Police Contributors Participating in Peacekeeping Missions (COE Manual)’, UN doc. A/C.5/60/26, 11 Jan. 2006, Ch.9.

In fact, mission-based codes of conduct started to incorporate the 2003 Bulletin: ‘Report of the Group of Legal Experts’, UN doc. A/61/645, 18 Dec. 2006, para.27, n.19.

For details see Danesh Sarooshi, ‘The Role of the United Nations Secretary-General in United Nations Peace-Keeping Operations’, Australian Year Book of International Law, Vol.20, 1999, pp.279–97.

The authority delegated to the SRSG is taken over by military, police and civilian units through the chain of command. The basic structure of the chain of command for UN forces was established through UNEF I and ONUC. Derek W. Bowett, United Nations Forces: A Legal Study of United Nations Practice, London: Stevens, 1964, pp.338–9.

See ‘Report of the Group of Legal Experts’ (n.35 above), paras.8, 19, n.12.

Zeid Report (n.3 above), para.A.18.

‘Text of Letter Dated 21 June 1957 from the Secretary-General to the States Providing Contingents’ (‘UNEF Troop-Contribution Agreement’), para.9, reproduced in Rosalyn Higgins, United Nations Peacekeeping 1946–47: Documents and Commentary, Vol. I (The Middle East), Oxford: Oxford University Press, 1969, pp.326–8. Likewise, see ‘Draft Model Agreement between the United Nations and Member States Contributing Personnel and Equipment to the United Nations Peace-Keeping Operations’, UN doc. A/46/185, 23 May 1991, annex, para.7 (‘the personnel made available by [the Participating State] … shall be under the command of the United Nations, vested in the Secretary-General, under the authority of the Security Council’).

‘Model Memorandum of Understanding between the United Nations and [Participating State] Contributing Resources to [the United Nations Peacekeeping Operation]’, UN doc., A/51/967, 27 Aug. 1997.

‘Report of the Group of Legal Experts’ (n.35 above), paras.27–8.

For UN staff, 2003 Bulletin (see n.5 above), Sect.3(e). For other personnel, the reporting obligation is set out by mission directives: e.g., UN doc. S/2006/759, 21 Sept. 2006, para.76; MONUC, ‘Reporting Misconduct’ (at: http://monuc.unmissions.org/Default.aspx?tabid=2585).

Report of the Secretary-General, ‘Comprehensive Report of Conduct and Discipline Including Full Justification of All Posts’, UN doc. A/62/758, 20 Mar. 2008, para.20. Previously, allegations were individually received by military, police and civilian units.

The CDU received 803 allegations of misconduct in 2006 and 748 allegations in 2007 with respect to peacekeeping personnel: ibid., para.9.

UN doc. A/RES/48/218 B, 12 Aug. 1994; Secretary-General's Bulletin, ‘Establishment of the Office of Internal Oversight Services’, UN doc. ST/SGB/273, 7 Sept. 1994.

CABQ, ‘Strengthening Investigations’, UN doc. A/62/7/Add.35, 5 Mar. 2008, annex II, para.6. The investigation of minor misconduct, or category II misconduct, is carried out by each peacekeeping mission.

Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act, 1994, H.R. 2519, P.L. 103–121; Foreign Relations Authorization Act, FY 1994–95, P.L. 103–236, H.R. 2333, Sect.401(b).

Karl T. Paschke, ‘Accountability and the Role of Internal Oversight in the United Nations’, in Yassin El-Ayouty et al. (eds), Government Ethics and Law Enforcement: Toward Global Guidelines, Westport, CT: Praeger, 2000, pp.9–10.

UN doc. A/58/364, 11 Sept. 2003, paras.50–1.

UN doc. A/RES/59/287, 21 April 2005, paras.6, 9; UN doc. A/60/346, 9 Sept. 2005, para.15.

Report of the Secretary-General, ‘Special Measures for Protection from Sexual Exploitation and Sexual Abuse’, UN doc. A/59/782, 15 April 2005, para.9, annex I.

Report of the Secretary-General, ‘Special Measures for Protection from Sexual Exploitation and Sexual Abuse’, UN doc. A/60/861, 24 May 2006, annex I; Report of the Secretary-General, ‘Special Measures for Protection from Sexual Exploitation and Sexual Abuse’, UN doc. A/63/720, 17 Feb. 2009, para.7.

OIOS, ‘Investigation into Allegations of Sexual Exploitation and Abuse in the United Nations Organization Mission in the Democratic Republic of Congo’, UN doc. A/59/661, 5 Jan. 2005; OIOS, ‘Investigation into Allegations of Sexual Exploitation and Abuse in the Ituri Region (Bunia) in the United Nations Organization Mission in the Democratic Republic of Congo’, UN doc. A/61/841, 5 April 2007.

Report of the Office of Internal Oversight Services, UN doc. A/63/302 (Part II), 23 Feb. 2009, para.9.

Revised Model MoU (see n.34 above), para.3, art.7 quater.

Ibid., art.7 quater (4).

Ibid., art.7 quater (2). Further, the preliminary fact-finding inquiry shall include a representative of the government.

Ibid., art.7 quater (3)(a).

Report of the Office of Internal Oversight Services, UN doc. A/63/302 (Part II), 23 Feb. 2009, para.9.

It is noted that the DPKO's guidelines have started to replace the term ‘operational command’ with ‘operational authority’ since 1995, presumably in order to avoid confusion generated by regarding UN ‘command’ through the lens of ordinary military usage. DPKO, General Guidelines for Peacekeeping Operations, 1995, paras.60–1 (at: www.reliefweb.int/rw/lib.nsf/db900SID/LGEL-5SYHEK?OpenDocument). However, the term ‘operational command’ continues to appear in many other UN documents.

See Report of the Secretary-General, ‘Command and Control of United Nations Peace-Keeping Operations’, UN doc. A/49/681, 21 Nov. 1994, para.6.

Bowett (see n.37 above), pp.343–4.

See, e.g., Draft Model Agreement (n.40 above), annex, para.8.

UNEF Regulations (see n.20 above), Reg.13; UNEF Troop-Contribution Agreement (see n.40 above), para.6.

Normally, the UN's codes of conduct are incorporated into the military rules of each participating state to enable the state to take disciplinary actions against a breach of such UN codes. See Robert C.R. Siekmann, National Contingents in United Nations Peace-Keeping Forces, Dordrecht: Martinus Nijhoff, 1991, p.134.

See DPKO, ‘Directives for Disciplinary Matters Involving Civilian Police Officers and Military Observers’, UN doc. DPKO/CPD/DDCPO/2003/001 and DPKO/MD/03/03/00994, 2003 (at: www.peacewomen.org/un/pkwatch/discipline/CivpolandUNMOsDirectives.pdf), para.2, n.1.

The procedure for repatriation is set out in DPKO, ‘Directives for Disciplinary Matters Involving Military Members of National Contingents’, UN doc. DPKO/MD/03/00993 (2003) (at: www.peacewomen.org/un/pkwatch/discipline/MilitaryDirectives.pdf).

Zeid Report (see n.3 above), para.A.35.

Contributing countries are expected to report about the action taken with regard to repatriated members: DPKO (see n.68 above), para.28. Repatriated personnel are banned from future UN peacekeeping: Report of the Secretary-General, ‘Special Measures for Protection from Sexual Exploitation and Sexual Abuse’, UN doc. A/62/890, 25 June 2008, para.9(a).

Staff Regulations (see n.28 above), art. X; Secretary-General's Bulletin, ‘Staff Rules’, ST/SGB/2009/7, 6 Oct. 2009, ch.X.

Secretary-General's Bulletin, ‘Staff Regulations’, UN doc. ST/SGB/2008/4, 1 Jan. 2008, Reg.10.2; ‘Staff Rules, UN doc. ST/SGB/2002/1 (last amended by ST/SGB/2008/1), Rule 110.3.

Secretary-General's Bulletin, ‘Staff Rules’ (see note 72 above), Rule 110.4(b)(ii), (c). Under the new system, effective as of 1 July 2009, the Joint Disciplinary Committees was abolished, so was the category of summary dismissal. The Secretary-General imposes a disciplinary measure without the advice of the Committee.

General Conditions of Contracts for the Service (see n.33 above), Condition 2 (Standards of Conduct).

DPKO (see n.67 above).

OIOS (2005) (see n.54 above), para.38.

UN Office of Legal Affairs, ‘Letter to the Acting Chair of the Special Committee on Peacekeeping Operations, United Nations, Regarding Immunities of Civilian Police and Military Personnel’, United Nations Juridical Yearbook, 2004, p.325.

Security Council resolutions have been utilized to ensure jurisdictional immunity in cases where the status-of-forces agreement cannot be concluded: e.g., UN doc. S/RES/1626, 19 Sept. 2005, para.9 (UNMIL); UN doc. S/RES/1706, 31 Aug. 2006, para.12(b) (UNMIS); UN doc. S/RES/1769, 31 July 2007, para.15(b) (UNAMID). In these resolutions, the Security Council, acting under Chapter VII, decides that the Model SOFA shall apply provisionally, pending the conclusion of formal agreement.

Model SOFA (see n.20 above), para.47(b). It is noted that private acts of contingent members are subject to civil jurisdiction of the host state: ibid., para.49(b).

UNEF Troop-Contribution Agreement (see n.40 above), para.7. Similarly, ‘Agreement between the United Nations and Sweden Contingent to the United Nations Force in Cyprus’, 21 Feb. 1966, para.7, reproduced in Finn Seyersted, United Nations Forces: In the Law of Peace and War, Leiden: A.W. Sijthoff, 1966, p.444 (annex 3). See also Model SOFA (see n.20 above), para.48.

Zeid Report (see n.3 above), para.78.

Revised Model MoU (see n.34 above), para.3, art.7 quinquiens (1), (2).

Ibid., para.3, art.7 sexiens (1).

While Article V of the 1946 Convention provides ‘officials’, UN staff are generally considered as ‘officials’ under the article: UN doc. A/RES/76(I), 7 Dec. 1946. The General Assembly resolutions exclude local workers assigned to hourly rates, but normally such workers do not even have a staff contract with the UN. See Report of the Secretary-General, UN doc. A/62/782, 3 April 2008, paras.37–42.

While UN volunteers are not UN staff, some recent status-of-forces agreements extended to them the privileges and immunities enjoyed by UN ‘officials’ under the Convention. Zeid Report (see n.3 above), para.16; Report of the Group of Legal Experts, ‘Ensuring the Accountability of United Nations Staff and Experts on Mission with Respect to Criminal Acts Committed in Peacekeeping Operations’, UN doc. A/60/980, 16 Aug. 2006, para.7, n.2.

See Model SOFA (see n.20 above), para.26. The status of formed police units are currently under discussion at the UN, and there is a possibility that they may be treated the same as members of national military contingents. See Report of the Group of Legal Experts, ibid., p.9, n.8.

Report of the Secretary-General, UN doc. A/62/782, 3 April 2008, para.31.

The Convention on the Privileges and Immunities of the United Nations, 1 UNTS 15, 13 Feb. 1946, Articles V, VI.

Ibid., sect.19.

See ibid., sects.18(a), 20, 22(b), 23. Immunities for official acts may be waived by the Secretary-General's decisions: UN Office of Legal Affairs (see n.77 above), p.324.

See Model SOFA (see n.20 above), para.47(a); ‘Informal Summary of the Discussions of the Ad Hoc Committee on the Report of the Group of Legal Experts’, UN Doc. A/62/54, 2007, annex, paras.14–16.

Zeid Report (see n.3 above), para.93; Report of the Special Committee (see n.7 above), pt.2, para.40(a).

Report of the Group of Legal Experts (see n.85 above), annex III (Draft Convention on the Criminal Accountability of United Nations Officials and Experts on Mission).

As of October 2009, the Draft Convention had not been adopted by the General Assembly.

Report of the Group of Legal Experts (see n.85 above), annex III, art.1(d)(i).

Ibid., annex III, art.3.

Ibid., annex III, art.3(2) and its alternative.

The actors outside the UN can lodge allegations with the OIOS. See OIOS, ‘Investigations Manual’, Mar. 2009, sect.3.1.1. The General Assembly resolution that provides the authority of the OIOS does not specify who can lodge allegations: see A/RES/48/218 B, 12 Aug. 1994, para.5(c)(iv).

‘United Nations Comprehensive Strategy on Assistance and Support to Victims of Sexual Exploitation and Abuse by United Nations Staff and Related Personnel’, A/RES/62/214, 7 Mar. 2008.

Ibid., annex, paras.6, 7. For implementation, see UN doc. A/64/176, 27 July 2009.

OIOS (2007) (see n.54 above), Summary and paras.23, 35–41.

Ibid., paras.8, 12–18.

Ibid., para.25.

Ibid., para.13.

Save the Children UK, ‘No One to Turn to: The Under-reporting of Child Sexual Exploitation and Abuse by Aid Workers and Peacekeepers’, 2008 (at: www.savethechildren.org.uk/).

See ibid., pp.12–14.

UN News (see n.23 above) Lute's statement.

Hilary Charlesworth and Christine Chinkin, The Boundaries of International Law: A Feminist Analysis, Manchester: Manchester University Press, 2000, p.285, n.69; Zeid Report (n.3 above), para.3; UN doc., S/PV.5191, 31 May 2005, p.3 (statement of Prince Zeid Ra'ad Zeid Al-Hussein).

See Otto (see n.15 above), pp.259–82.