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The UNspoken advocacy for SA

Immune from Justice


If the UN wants to stop advocating for sexual abuse, it needs to act with direction and urgency. The work of UN peacekeepers aims to deescalate civil violence and protect vulnerable civilians from conflict, poverty and crises resulting from natural disasters. UN peacekeepers go into these contexts, promising to provide security and protection for helpless civilians, and yet there were 445 allegations of sexual abuse and exploitation by UN peacekeepers in 2021. Some UN peacekeepers abuse the very civilians they pledged to protect. Once those victims bring all their courage together to report the injustices done to them, all that happens is the report of an incident. In some instances, the victim goes through an arduous court process in a different language, sometimes abroad. Most of the time, the abuser goes unpunished, and the victim is left without justice, without peace. We continue working to end impunity and ensure justice for victims”, said the UN Secretary-General, Guterres, last month. The UN’s response is flawed, as Guterres himself admits, and whilst the UN has been improving victim support, protocol, and tracking of allegations, accountability is lacking. Writing in 2015 specifically about abuses in the Central African Republic, the UN published a report with policies aiming “to take measures to hold perpetrators accountable”. However, a few days ago, on the 10th of May 2022, another report was published with the same ambition of combatting the impunity from which sex abusers in peacekeeping missions benefit. The goal is the same, despite promises of significant change back in 2015. Why is it taking so long for these horrific abuses to be sanctioned? Which institutional structures are protecting against accountability? Who is international law protecting? In an article fittingly entitled “UNaccountable”, Rosa Friedman describes how the legislation, the legal frameworks, the investigations and the prosecutions in UN Peacekeeper sexual abuse cases are inherently flawed. The root of the legal protection and impunity offered to this UN personnel lies in Article 5 of the Convention on Privileges and Immunities of the United Nations (CPIUN). Heads of operation are allocated personal immunity, immune from any national court orders or decisions, to protect the workers from host state interference in their missions. However, most civilian personnel only have functional immunity – they are only immune from court jurisdiction when the behaviour in question is part of their work. However, in UN investigations in Haiti and the Central African Republic, the lack of evidence of a crime influenced the application of functional or personal immunity, preventing trials from taking place. Friedman goes as far as to argue that the UN is acting illegally, outside of its legal possibilities (ultra vires). Furthermore, the personnel who hold the position of ‘Expert on Mission’ are absolutely inviolable from detainment and arrest during the entire mission duration. The blue helmets, or military personnel of UN missions, are granted immunity in the host state and only allowed to be tried in courts from the sending country. However, the defendants rely on the host country’s legal system. A case against a UN soldier in the sending country is feeble where the defendant cannot be present, does not speak the language, and is confronted with different laws of evidence. Moreover, even if the Secretary-General waived the immunity in the host country, those legal systems are often unstable, considering the conflict situation which motivated the peacekeeping mission in the first place. The willingness of the UN to prosecute the perpetrators may also be called into question. In 2015, a UN aid worker acted as a whistleblower to the French authorities on child exploitation in the Central African Republic, and the UN suspended him as a tribute to his concern. When such action is taken swifter than any action to protect the children’s well-being, the organisation’s priorities have become questionable, and the reforms that the International Peace Institute recommends are highly needed. A landmark case in Haiti, September 2021, presented some hope for Haitian women, accountability and justice. An Uruguayan UN Peacekeeper, who had sexually exploited one of the women in Haiti, impregnated her and left her with §120 to fend for herself in a country where abortion is illegal. In this unusual case, and after much bureaucratic hassle and obstacles with the UN, the peacekeeper was finally ordered, in a Haitian court, to pay $3590/month in child support costs. This case sets a precedent that will hopefully open the doors to justice for many Haitian women who desperately need financial support. However, this ruling is just one small step towards real accountability. It is just the ruling and without realistic enforcement. There is no real possibility for the Haitian executive to enforce this ruling on a UN Peacekeeper who has returned to Uruguay. Furthermore, this case is a tort case, with the monthly child support being a small dent in the purse of a highly valued UN Peacekeeper. Real criminal accountability is far from achieved. The “damages” for which the defendant was held liable was the cost of raising a child. The case gives no compensation for the emotional and physical trauma of being assaulted by someone in a position of authority and responsibility. It, therefore, provides no opportunity for justice to those Haitian women who were sexually exploited but not impregnated. One more obstacle in achieving justice for all exploited civilians is that many member states of the UN do not allow the compulsory DNA testing process, which made the identification of the perpetrator possible in Uruguay. More needs to be done to create actual pathways of accountability. The gendered violence of the UN is far from its stated goals of gender equity. The goal of gender representation in UN military expert forces is 19%. Whilst every country is above this target, as of February 2022, it is an unambitious one, especially when considering that this may be an essential step to decreasing gender-based violence in UN missions. Another aspect of the problem that has not been addressed sufficiently is the sexual exploitation of men and boys. To avoid accusations of homosexuality and lacking manhood, men are much more likely to report the abuse of a sexual nature as torture or not to report it at all. The high numbers of UN peacekeeper exploitations are only the reported numbers. Given the complex process of reporting for women and children, let alone men, the actual numbers may be even higher. The UN’s “zero-tolerance” toward sexual violence is far above zero in this accountability gap. The flexibility that UN Peacekeepers require for their work does not justify the obstacles it lays down in the paths to accountability – in this case, the bureaucracy of the UN and the foundations of international law have become a shield for perpetrators rather than a means of justice. Member states on the security council need to take action, as one report after another recommends, to follow through on their promises and combat impunity.


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