Introduction
We have heard how rape is used as a weapon or tactic of war[i], but it is time to ask if sexual exploitation and abuse (SEA) is a weapon of the United Nations (UN) peacekeepers? The UN received approximately 2,000 SEA allegations perpetrated by UN peacekeepers between 2004 and 2014.[ii] In 2003, Kofi Annan, former United Nations Secretary-General (UNSG) introduced a zero-tolerance policy on SEA, which includes specific reporting mechanisms.[iii] Nevertheless, SEA continues with impunity.[iv] Only a few accusations against UN peacekeepers have led to prosecution by member states—most resulted in reduced charges or minimal criminal consequences.[v] For example, in 2016, a Senegalese soldier found guilty of raping a child in the Ivory Coast was repatriated and has yet to be prosecuted in his home country.[vi] The lack of criminal accountability poses a problem of equity, morality, hypocrisy, injustice, and just bad practice. The UN has a comparative advantage and the obligation to lead the fight to address this issue.[vii]
The UN’s work relies on its moral authority and the UN’s legitimacy has been at stake.[viii] Kelly Askin, Senior Legal Officer for International Justice says, the “continuing failure by the UN to prevent and punish SEA by peacekeepers of the very people in need of protection undermines the UN’s credibility, effectiveness, and values.”[ix] Annan was quoted saying that SEA “undermines the credibility and integrity of the work of the UN.”[x] He also wrote to the UN Security Council (UNSC) where he states, “the UN cannot tolerate even one instance of a UN peacekeeper victimizing the most vulnerable among us.”[xi] While the UN Codes of Conduct prohibits SEA,[xii] SEA continues. The sexual violence of civilians perpetrated by UN peacekeepers has gotten worse in recent years.[xiii] UN Women notes that there is evidence of the intensification of global violence against women and girls.[xiv] Although available data on violence against women and girls has improved considerably in recent years, many countries still do not have the proper infrastructure to collect data, and many survivors are not ready and do not feel safe enough to report these types of crimes.
Should the UN be seen as a legitimate humanitarian organization if UN peacekeepers continue to violate human rights mandates, humanitarian principles, International Humanitarian Law (IHL), and International Human Rights Law (IHRL)? Why is the UN leadership not applying pressure on member states to develop the legal mechanisms and gather donor funding to criminally prosecute UN personnel who are committing sex crimes against civilians and other humanitarians?
This article takes a feminist-gendered approach to discuss why there has been limited criminal accountability for UN peacekeepers who are accused of sex crimes against civilians which include women, men, boys, and girls. This article will cover the impunity-immunity conundrum and associated barriers under IHL as it currently stands. This article will also discuss recommendations for change for the UN, member states, and the international community including donors and other humanitarian agencies to ensure criminal accountability, including collaborative processes, hybrid/internationalized tribunals, incentives, and closing the impunity gap through criminal repression of sexual violence.
Peacekeeping Operations and Sexual Violence Against Women
To understand the issue of rape in war and its legal implications, there must be an understanding of the definitions of peacekeeping, the history of sexual violence/rape appearing in the Fourth Geneva Conventions (GC), and rape being codified in the International Criminal Court (ICC). These issues should be seen on the same level as how people see the war–a priority to address at the local and international levels. According to the International Committee of the Red Cross (ICRC), peacekeeping operations must “ensure the respect for ceasefires and demarcation lines and to conclude troop withdrawal agreements.”[xv] The ICRC highlights how there has been a change in the scope of peacekeeping operations, which have been extended to do other tasks. For example, forwarding humanitarian relief, or the provision of assistance in the process of national reconciliation.[xvi]
Although the word “rape” was not explicitly stated in the Hague Peace Conventions, the action was understood as an attack on the ‘honor of the family.’[xvii] Honor is also found in the Fourth Geneva Conventions (GC) of 1949, with two vital modernizations. One is that women were noted as people ‘to be protected,’ and the second is that rape is mentioned as an example that is an attack on the ‘honor of women,’ as opposed to their family, as it was in the Hague Peace Conventions.[xviii]
These crimes were further codified in the ICC Statute, which forbids the following as crimes against humanity or rape crimes: ‘rape, sexual slavery, enforced prostitution, forced pregnancy, enforce sterilization, or any other form of sexual violence of comparable gravity.’[xix] The prevention and the redress of sex crimes committed by UN peacekeepers during a mission or operation must always remain a key priority in the development and implementation of IHL norms—at the local and international levels.
Despite the UN’s efforts in 2000 with Resolution 1325,[xx] which requests parties in armed conflict to adopt measures to protect women and girls from SEA and gender-based violence;[xxi] the challenge remains that Resolution 1325 was not adopted under Chapter VII of the UN Charter.[xxii] Therefore, not legally binding on UN member states. UN guidelines, tools, and training to address SEA accusations are failing.[xxiii]
The lack of proper prosecution and the issues of immunity are key contributing factors to continuing SEA. According to the UN’s allegation monitoring system in 2015, there are 110 allegations across peacekeeping missions,[xxiv] including military and civilian personnel that remain unresolved—in addition to various pending cases.[xxv] Gathering data on these types of crimes includes challenges as while there are mechanisms to report the number of accusations does not illustrate how widespread SEA is as many survivors are scared, shamed, and ashamed to report their abuse. The United Nations Economic and Social Affairs claims that “less than 40 percent of the women who experience violence seek help of any sort. In the majority of countries with available data on this issue— among women who do seek help— most look to family and friends and very few look to formal institutions, such as police and health services. Less than 10 percent of those seeking help appealed to the police.”[xxvi] Therefore, SEA incidents perpetrated by UN personnel, including peacekeepers are likely to be much higher.
Legal Obligations of the State
A war crime is a violation of IHL during an IAC or NIAC. The Statute of the ICC (art 8) has a list of war crimes that states established in a treaty.[xxvii] There are definitions and lists of war crimes in many legal texts as well. It is known that war crimes under customary international law also cover serious violations committed in NIACs.[xxviii] There are instances where crimes against humanity and genocide have been used as a legal basis to convict individuals of war crimes (i.e., murder and rape). There are also obligations for states when it comes to war crimes. So, if a state is a part of the GC or AP1,[xxix] it must take legal action to punish those who have “grave breaches” of the GC or AP. States thus must prosecute in their courts or the accused to another state for a court trial.
Because the State’s criminal laws apply only to crimes that were committed on its territory or by its nationals, not every State has the wherewithal to conduct trials, whether it is due to a limited budget to gather evidence or witnesses. Under IHL though, states are required to seek out and punish any persons who have committed a grave breach of IHL no matter their nationality or where the crime was committed (i.e., universal jurisdiction). Criminal trials for serious violations of IHL must be brought up by national authorities.
The Issues: Impunity-Immunity Conundrum, The Case of Didier Bourguet, Impacts Beyond Legal Implications
Sex crimes during war times, unfortunately, are as old as war itself. The perpetual history of sex crimes perpetrated by UN personnel and humanitarian actors, especially in Africa goes against every IHL and humanitarian principles. Furthermore, the lack of criminal accountability has major implications that outlast war such as sex economies, peacekeeper babies, and women with non-functioning reproductive organs[xxx], post-traumatic stress disorders, and sexually transmitted infections (STIs) and or human immunodeficiency virus (HIV) and acquired immunodeficiency syndrome (AIDS).
The recognition of SEA by UN personnel, contractors, and consultants was notably made public with scandals in Bosnia and Herzegovina in 1990 with forced prostitution of girls and women[xxxi]; child sex rings of girls and boys as young as 9 years old by UN Sri Lankan, Brazilian, and Pakistani peacekeepers and Oxfam staff in Haiti in 2007;[xxxii] and rape and SEA against girls and women by UN peacekeepers from Burundi and Gabon in 2015-16 in Central African Republic.[xxxiii] Humanitarian action derives from IHL and a do no harm approach.[xxxiv] Therefore, SEA perpetrated by UN personnel goes against humanitarian principles, human rights mandates, IHL, and IHRL. It is a human rights mandate for civilians to be protected during International Armed Conflict (IACs) and Non-International Armed Conflict (NIACs)—not protecting civilians, especially women, and children, including boys from sexual violence is a major human rights violation. The next section presents the issues of impunity and implications, beyond the legal scope.
The Impunity-Immunity Conundrum
The UNSG has the power to waive functional immunity that protects UN personnel by referring the alleged rapist peacekeepers to member states for criminal prosecution, with deadlines for investigations and accountability measures to be taken in cases of substantiated allegations.[xxxv] However, in practice, it is difficult and expensive to prosecute for such crimes given the limited evidence, limited access to victims, and variations in criminal codes and legal interpretations and approaches from country to country.[xxxvi] As a result, there are no known cases of the UN lifting the functional immunity of its staff or authorizing prosecution in cases concerning mandate implementation.[xxxvii]
The UN does not have criminal jurisdiction over peacekeepers or military personnel.[xxxviii] Therefore, the UN cannot conduct its trials nor impose new judicial systems on member states as a sovereign body (Article 2(1)–(5)).[xxxix] Trials are for member states to conduct. Hence, any criminal accountability lies with them. Only if SEA involves a civilian member of the UN is when the UN is tasked with investigating those allegations.[xl]
The Case of Didier Bourguet
There is one instance where UN personnel on a peacekeeping mission has been jailed for sexual abuse. This was the case of French national, Didier Bourguet and the one exception to the culture of immunity. Bourguet was sentenced to nine years in jail for raping girls between the ages of twelve and eighteen and charged with possession of child pornography (although he was charged with raping twenty African girls) while working as a senior U.N. logistics officer for peacekeeping vehicles in the Central African Republic (CAR) and Democratic Republic of Congo (DRC) between 1998 and 2004.[xli] In 2004, DRC police arrested Bourguet in Goma through a sting operation and sent him back to French authorities.[xlii] In court, Bourget confessed to the rape and was convicted by a French judge in 2008. In reality, not many defendants would confess to raping children. Therefore, Bourget is a rare case all around.
Bourget has since been released. In a 2018 interview, Bourguet says this about the power dynamics and nature of the environment: “Because we had money it was really easy; We just had to give money to buy something and of course, they were starving so of course… that is why it’s easy, it was easy.”[xliii] This quote shows that there is a culture of not only abuse and exploitation but that it is easy to do and even easier to get away with, without any repercussions. Claude Deboosere-Lepidi, Bourguet’s lawyer, said Bourget admits “…[he] was involved in systematic sexual involvement with minors that included other U.N. officials, and that the United Nations permitted an environment in which sex with young girls was tolerated.”[xliv] These revelations are disturbing but honest. Although peacekeepers come to their missions and commit these heinous crimes and then go back home to their families, this culture of SEA results in long-lasting impacts for survivors who must live with the trauma and in some instances, babies from the results of rapes.
Punishing Whistleblowers
It appears the UN has put more punishment on whistleblowers rather than the UN peacekeepers who committed sexual violence against civilians. For example, Kathryn Bolkovac, a human rights investigator with the United Nations Police (UNPOL) and DynCorp International was unfairly fired from her job, conveniently after she reported that her colleagues were involved with the raping and sex trafficking of girls in Bosnia.[xlv] There are many stories of UN whistleblowers being fired or demoted for reporting the awful truths of SEA.
Another notable whistleblower example comes from Anders Kompass. Kompass was a former director of field operations at the Office of the High Commissioner for Human Rights (OHCHR) in Geneva. He was “suspended and faced dismissal after he passed confidential documents detailing the abuse of children by French troops in CAR to the authorities in Paris because of the UN’s failure to stop the exploitation.”[xlvi] Although the UN tribunal panel cleared Kompass of any wrongdoing and found the UN of unlawful action for his suspension, Kompass resigned from a 17-year career at the UN, citing “the complete impunity for those who have been found to have, in various degrees, abused their authority, together with the unwillingness of the hierarchy to express any regrets for the way they acted towards me.”[xlvii] Therefore, it also can be argued that there is a culture of punishing those who speak out and shed light on this issue, rather than those who commit the crimes. The next section will discuss some of these impacts and their negative implications.
Impacts Beyond Legal Implications
The lack of criminal accountability impacts society in general with many long-lasting implications. Not only are there peacekeeping economies but there are many “peacekeeper babies” that will never know their fathers and teenage rape survivors who do not have the means or social services to take care of their children. As of 2005, there were estimates of hundreds of underage girls having babies fathered by UN soldiers who have been able to simply leave their children and their crimes behind.[xlviii] In 2008, the United Nations General Assembly (UNGA) adopted Resolution 62/214, which promulgated the ‘Comprehensive Strategy on Assistance and Support to Victims of Sexual Exploitation and Abuse by United Nations Staff and Related Personnel.’[xlix]
Simić and O’Brien criticize how this UN Strategy does not highlight the distinction between sexually exploitative behavior and consensual relationships.[l] This is important to note as there are relationships that might be seen as “consensual,” but there is always a power dynamic at play. And as Bourgeut said, these people were starving, it is not an “equal relationship.[li] Guidelines and strategies are great for donors, but the UN has failed to implement the strategy and practically address issues survivors are facing daily.
Westendorf and Searle note that “peacekeeping economies tend to outlast PKOs, ‘shaping gendered economic and social power relations in the long term and embedding sex work and trafficking in the post-war economy.”[lii] For civilians, life does not go back to “normal” once a war has ended or a peacekeeping mission has been deployed due to non-functioning reproductive organs, shame, stigma, undiagnosed STIs and AIDS, and PTSD.[liii] In the cases of many of the SEA survivors, the irony is that life is often worse in a peacekeeping environment.
Recommendations
In the International Peace Institute’s (IPI) 2020 report, The Accountability System for the Protection of Civilians in UN Peacekeeping, Naime Di Razza, Senior Fellow and the Head of Protection of Civilians describes how the legal accountability of the UN is widely limited given that the immunity the UN has “been conferred.”[liv] The UN does not have criminal jurisdiction over peacekeepers nor military personnel working on peacekeeping operations. Therefore, the UN Secretariat has “limited legal authority over troops and units deployed by member states.”[lv] Criminal accountability in the form of trials is only for member states to conduct and try in a court of law. However, it is the UN’s moral, ethical, and legal responsibility under international humanitarian law to protect civilians from peacekeepers’ operations.[lvi]
There are three key actions that the UN and the national governments can take to agree and join forces and prosecute:
- Internationalized and hybrid criminal tribunals against SEA perpetrated by UN personnel to investigate and prosecute individual people for serious violations of international criminal law or international humanitarian law such as war crimes, genocide, and crimes against humanity – when national authorities are unable or unwilling to do so.[lvii] [lviii]
- Incentivizing states to take accountability through risk premiums. Sanctions are not sufficient to increase accountability and limit any unintended side effects “accountability” might have for the civilian population. Offering a risk premium for uniformed personnel can allow the incentivization of good protection of civilization performance. It is critical to weigh the challenges and potential risks in conflict and fragile states and vital to have realistic standards of performance that are based on humanitarian/legal principles and the resources obtainable in each context.
- Closing the impunity gap through criminal repression of sexual violence, including as a war crime. Addressing impunity must focus on the international law applicable in armed conflict. There are many provisions in the GCs, APs, and customary law that explicitly or implicitly prohibits sexual violence.[lix] These provisions are significant because they require the criminal repression of sexual violence in armed conflict, with implications for domestic law.[lx] States and the UN should contemplate a military and civilian court situated in the country to support efforts to not only close the impunity gap but improve accountability, and provide justice and services for victims of sex crimes.
Internationalized and hybrid criminal tribunals
The UN can use its comparative advantage and unique power position to work with the international community like donors, other humanitarian agencies, and national governments to develop either ““internationalized” or “hybrid” tribunals to prosecute international SEA crimes as the first key step for criminal accountability. Criminal trials for serious violations of IHL must be brought up by national authorities. Though, there has been a mix of different courts like internalized or hybrid/special courts to try war criminals in a court of law. The International Justice Resource Center (IJC) notes that the creation of these types of tribunals includes the “staffing and judicial composition may be national or international in nature.”[lxi] Hence, there is a rationale and precedent for charging and convicting people of war crimes and crimes against humanity.
Lessons from Magistrate Judge Peggy Kou, who prosecuted war crimes and crimes against humanity at the United Nations International Criminal Tribunal for the former Yugoslavia in The Hague can provide strategic recommendations:
- Importance of NGOs in providing information and supporting the finding of witnesses and speaking with them.[lxii] For example, NGOs helped the Victim Witness Section at the Tribunal by collecting evidence and witness testimony, which is extremely hard to collect.
- Working with the witnesses and plaintiffs requires a multifaceted approach.[lxiii] To illustrate, finding witnesses who may be anywhere in the world (Germany, Sweden, Turkey, United States) is a major challenge. This is coupled with the added shame that witnesses feel as they do not want to reopen sexual and mental trauma or social stigma/shame.[lxiv] Many witnesses also have a severe fear of seeing their alleged rapists in the courtroom. For example, having to identify the defendant for the record.
- The budget was always a problem for the UN headquarters in New York.[lxv] Economically, the budget for the Tribunal in 1993 was $276,000 and would be $96 million in 2002.[lxvi] Hence, in 2023, the budget would be closer to 150 million dollars–costs to find witnesses, interpreters, travel costs, and gathering evidence; not to mention the cost of staffing, including judges, security guards, lawyers, investigators, and computer experts.[lxvii] The UN should earmark funds and collect donations from international donors to conduct hybrid and internationalized trials and prosecute to the fullest extent of the law– it will be costly and rightfully so.
- Tribunal cases should be specialized or focused or separated into a particular case or integrated into other larger charges to avoid the risk of either giving that case too much prominence or perhaps diminished prominence.
Incentivizing states to take accountability through risk premiums
There is an important discussion around the debates around accountability systems, particularly the shift towards incentives. Di Razza (2020) argues that accountability remains a sensitive topic at the UN, as the discourse is largely based on the perspectives of “punishment, retribution, or blame.”[lxviii] However, according to Di Razza (2020), terms such as “monitoring and evaluation” or “performance monitoring” are more likely to get buy-in and traction amongst member states.[lxix]
Offering a peacekeeper, a medal, a promotion, or an official letter of approval is not going to stop the behavior of a peacekeeper from committing sexual crimes. Offering a risk premium for uniformed personnel, however, can allow the incentivization of good protection of civilization performance. For example, Di Razza (2020) describes risk premiums to be “additional compensation beyond the ordinary rate—if they do not have restrictions and caveats, are exposed to exceptional risk, and have performed ‘above and beyond the call of duty.’”[lxx] The idea of introducing risk premiums is great, in theory, but it is critical to weigh the challenges and potential risks, especially in such a context as sexual crimes perpetrated by UN personnel in a conflicted and fragile state.
Due to the potential challenges of risk premiums—it is too early to assess the impact. Thus, it is not certain if these risk premiums would “demotivate and disincentivize” those not receiving them.[lxxi] Premiums were not designed to target nor focus on the protection of civilians.[lxxii] However, to address this particular gap, the Contingent-Owned Equipment (COE) Working Group of the UN suggested there be a new type of premium for uniformed personnel based on performance in specific operational activities, like protecting civilians.[lxxiii]
It is crucial to have realistic standards of performance that are based on humanitarian/legal principles and the resources obtainable in each context. As Di Razza (2020) notes “having the assurance that they will be held accountable against reasonable expectations and for realistic responsibilities could be a powerful incentive for personnel to perform better on protection of civilians.”[lxxiv] Although behavioral change approaches are innovative in addressing sex crimes perpetrated by UN personnel, the goal is criminal accountability.
Closing the impunity gap through criminal repression of sexual violence, including as a war crime
Legal advisors at the ICRC, Rachael Kitching, Kelisiana Thynne, and Vanessa Murphy note in their 2021 article, Walking the talk on SGBV: an implementation checklist to narrow the gaps between international law and domestic practice that impunity persists when national courts in distinct jurisdictions (i.e., host, troop contributor, survivors, etc.) are not afforded the legislative budgets or tools to prosecute SEA occurring in armed conflict, and when victims/survivors are not afforded the conditions needed to report and care to meet their needs.[lxxv]
Kitching et al. recommend that when addressing the impunity gap, “states must give their national courts the jurisdiction and legal basis to try sexual violence, both in peacetime and wartime, and should do so expressly as a war crime.”[lxxvi] Many do but the bigger problems are immunity, jurisdiction being limited to the troop contributor, and the distribution of evidence-gathering capability.
William Durch and his colleagues discuss a potential UN criminal justice support structure that would result in the elimination of impunity. Durch et al.’s (2009) proposed system would establish a new “Civil Provost” that would be the first point of contact with the host state’s criminal justice system for purposes of collaborative criminal justice. The importance of the provost would be to “sit as a filter in the stream of conduct reports that now flow directly to the Head of Mission for dismissal or disposition by Headquarters.”[lxxvii] To expound, the provost would investigate to see if the alleged crimes require a full investigation or prosecution, or whether to repatriate or prosecute with the host state.[lxxviii] They note “if that state fails to meet these conditions, step two would shift responsibility to the mission host state, working in close collaboration with the UN to bring its criminal justice system up to international standards to deal with UN personnel.”[lxxix] Similar to Di Razzo’s (2020) approach to the hybrid tribunals, the work would be in collaboration with donors and other international organizations that can use their comparative and unique advantage to fund the reconstruction of the criminal justice systems in post-conflict environments.[lxxx]
This proposed example would fundamentally change how the UN processes alleged criminal behavior on operations and missions as the UN could then move at the “speed of the crime” (Durch et al. (2009)). Concerning international legal standards, the proposed system could ensure accountability and independent oversight of the civil provost; and carry out sentences under contract with the qualified state of nationality or with third states.[lxxxi] Durch et al. (2009) note that this potential system could “expand the cost of UN peacekeeping, but the monetary cost should be weighed against the benefits it could bring to the UN, the people whom UN peace operations are mandated to protect, and the justice systems of mission host states whose effectiveness is crucial to rebuilding the rule of law.”[lxxxii]
A thought-provoking example comes from eastern DRC where there are military and civilian mobile courts that have successfully (and some unsuccessfully) held rape as a crime against humanity in the form of mass rape.[lxxxiii] These courts additionally have legal clinics that support victims and have increased their engagement with medical clinics–“staffed by Congolese, not foreigners, but these mobile courts in North and South Kivu have provided access to justice to victims and redressed hundreds of rape cases, including against serial child rapists.”[lxxxiv] Criminal accountability will bring benefits to the UN, the people whom UN peace operations are mandated to protect, and the justice systems of the host states.
Other Recommendations:
- More advocacy efforts and grievance redress mechanisms (GRMs) for survivors, so that more sexual assault survivors report and receive the support they need in their process of healing.
- The UN, along with member states and the support of the international donor community can develop practical and needs-based reparations for victims of sexual violence perpetrated by their personnel. Reparations could include compensation for medical and legal services, “peacekeeper children,” physical and psychological rehabilitation for victims, and policy reforms to ensure violations do not recur.
Conclusion
This article took a feminist-gendered approach to IHL to investigate what could be considered to ensure criminal accountability of UN peacekeepers who are committing sexual violence and exploitation of civilian populations. The research paper is for readers to understand how important the UN is in making institutional change as well as the comparative advantage the UN holds to make a real international impact. Despite the UN having many strategies, guidelines, and tools, the UN still fails to develop long-term criminal accountability systems to address these SEA crimes. The question remains if the UN should be seen as a legitimate humanitarian organization if peacekeepers continue to violate and go against human rights mandates, humanitarian principles, International IHL, and IHRL; and the UN has not shown real, continued effort to develop and implement a sustainable criminal accountability structure.
A robust system of criminal accountability should be a balance between collaborative processes, hybrid/internationalized tribunals, incentives, and closing the impunity gap through criminal repression of sexual violence. This article highlights sexual violence and exploitation and its impacts beyond just legal accountability such as the continuation of SEA economies and peacekeeper babies who are left behind without a father and stigmatized in the local community.
recommendations to address SEA will take a decade and hundreds of millions of dollars to fund. It will also take the commitment from many actors, such as the international community, including member states, the UN, donors, international I/NGOs, and humanitarian organizations. There might be pushback or backlash faced on the overall budget, or just simply not wanting to be involved in the criminal accountability system because it might be a “confession” of wrongdoing. However, the priority should and always should be criminal accountability; the UN must support the survivors and their families through reparations with the comprehensive services they need the most, such as legal aid, judicial services, medical/health, social, psychosocial, and referral pathways (both medical and legal). There needs to be a combination of criminal accountability and institutional responsibility. The UN should immediately implement reliable grievance redress mechanisms with investigators at the state’s disposal so that accusations and crimes are recorded and investigated. The priority should always be to enhance the voice and agency of the survivors.
SEA crimes perpetrated by UN peacekeepers are a complicated matter and criminal accountability should be established by the international community and led by the UN with the full compliance of the nation and member states. The UN might face pushback from member states—some member states might suggest not sending their troops which would result in fewer troops protecting civilian lives in post-conflict zones. Criminal accountability will not be easy nor cheap. However, As Judge Kuo once said, “How we handle rape during wartime as well as in peacetime is a strong measure of how we regard women in society.”[lxxxv] Hybrid tribunals, incentives, or criminal repression of sexual violence need strong assistance to be built to last as a legitimate, survivor-centered, consistent, and results-producing judicial system. It is critical to learn and build on the precedents from other UN war crimes tribunals and to build the donor funding base to ensure the budget needed to conduct and lead these trials.
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Prosecutor v. Bemba, Trial Judgment, ICC-01/05-01/08 (Mar. 21, 2016) ¶¶ 1-3, 98-112.
Prosecutor v. Akayesu, Trial Judgment, ICTR-96-4-T (Sept. 2, 1998) ¶¶ 6, 128, 630-34, 638-44.
Rachael Kitching, Kelisiana Thynne, and Vanessa Murphy. (2021). Walking the talk on SGBV: an implementation checklist to narrow the gaps between international law and domestic practice. https://blogs.icrc.org/law-and-policy/2021/11/25/sgbv-implementation-checklist-international-law.
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Special Tribunal for Lebanon. The Special Tribunal for Lebanon – the first tribunal of international character to prosecute terrorist crimes. https://www.stl-tsl.org/en.
The Hybrid Justice Project. https://hybridjustice.com/the-war-crimes-chamber-in-bosnia-and-herzegovina/.
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The Public Broadcasting Service (PBS) Frontline. 2018. French Police to Investigate New Abuse Claims Against Former UN Peacekeeper. https://www.pbs.org/wgbh/frontline/article/french-police-to-investigate-new-abuse-claims-against-former-un-peacekeeper/.
The Residual Special Court for Sierra Leone. THE RESIDUAL SPECIAL COURT FOR SIERRA LEONE AND THE SCSL PUBLIC ARCHIVES, FREETOWN AND THE HAGUE. http://www.rscsl.org.
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United Nations Peacekeeping. 2022. MANDATES AND THE LEGAL BASIS FOR PEACEKEEPING. United Nations. https://peacekeeping.un.org/en/mandates-and-legal-basis-peacekeeping.
United Nations Peacekeeping. 2022. Standards of Conduct. United Nations. https://peacekeeping.un.org/en/standards-of-conduct.
United Nations Repertory of Practice of United Nations Organs. Charter of the United Nations. https://legal.un.org/repertory/art2.shtml.
United Nations Secretariat. 2003. Secretary-General’s Bulletin Special measures for protection from sexual exploitation and sexual abuse. UNCHR. https://www.unhcr.org/protection/operations/405ac6614/secretary-generals-bulletin-special-measures-protection-sexual-exploitation.html.
United Nations Security Council. 2000. Resolution 1325 (2000). UNSCR. http://unscr.com/en/resolutions/doc/1325.
UN Missions. Conduct in UN Field Missions. United Nations. https://conduct.unmissions.org/user/login?destination=node/100039352.
Westendorf, Jasmine. 2021. WHO workers are accused of sexual exploitation and abuse. That hurts everything the U.N. does. Washington Post. https://www.washingtonpost.com/politics/2021/10/05/who-workers-are-accused-sexual-exploitation-abuse-that-hurts-everything-un-does/.
Wheeler, Skye. 2020. UN Peacekeeping has a Sexual Abuse Problem. Human Rights Watch. https://www.hrw.org/news/2020/01/11/un-peacekeeping-has-sexual-abuse-problem.
Wood, Elisabeth. 2018. Rape as a Practice of War: Toward a Typology of Political Violence. Politics & Society 1–25. https://www.un.org/sexualviolenceinconflict/wp-content/uploads/2019/05/report/rape-as-a-practice-of-war-toward-a-typology-of-political-violence/wood-PS-2018-rape-as-a-practice-of-war.pdf
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[ii] Essa, Azad. 2017. Why do some peacekeepers rape? The full report. Al Jazeera. https://www.aljazeera.com/features/2017/8/10/why-do-some-peacekeepers-rape-the-full-report.
[iii] United Nations Secretariat. 2003. Secretary-General’s Bulletin Special measures for protection from sexual exploitation and sexual abuse. UNCHR. https://www.unhcr.org/protection/operations/405ac6614/secretary-generals-bulletin-special-measures-protection-sexual-exploitation.html.
[iv] Essa, Azad. 2017. Why do some peacekeepers rape? The full report. Al Jazeera. https://www.aljazeera.com/features/2017/8/10/why-do-some-peacekeepers-rape-the-full-report.
[v] Essa, Azad. 2017. Why do some peacekeepers rape? The full report. Al Jazeera. https://www.aljazeera.com/features/2017/8/10/why-do-some-peacekeepers-rape-the-full-report.
[vi] Essa, Azad. 2017. Why do some peacekeepers rape? The full report. Al Jazeera. https://www.aljazeera.com/features/2017/8/10/why-do-some-peacekeepers-rape-the-full-report.
[vii] Durch et al. 2009. IMPROVING CRIMINAL ACCOUNTABILITY IN UNITED NATIONS PEACE OPERATIONS. STIMSON CENTER REPORT NO. 65 REV. 1. https://www.files.ethz.ch/isn/102719/Improving_Criminal_Accountability_June2009.pdf.
[viii] Westendorf, Jasmine. 2021. WHO workers are accused of sexual exploitation and abuse. That hurts everything the U.N. does. Washington Post. https://www.washingtonpost.com/politics/2021/10/05/who-workers-are-accused-sexual-exploitation-abuse-that-hurts-everything-un-does/.
[ix] Askin, Kelly. Global: Ending impunity for crimes committed by UN peacekeepers. International Bar Association. https://www.ibanet.org/article/CEBC5F69-A238-49BB-B85A-5E8D878FE485.
[x] Essa, Azad. 2017. Why do some peacekeepers rape? The full report. Al Jazeera. https://www.aljazeera.com/features/2017/8/10/why-do-some-peacekeepers-rape-the-full-report.
[xi] Essa, Azad. 2017. Why do some peacekeepers rape? The full report. Al Jazeera. https://www.aljazeera.com/features/2017/8/10/why-do-some-peacekeepers-rape-the-full-report.
[xii] United Nations Peacekeeping. 2022. Standards of Conduct. United Nations. https://peacekeeping.un.org/en/standards-of-conduct.
[xiii] Wheeler, Skye. 2020. UN Peacekeeping has a Sexual Abuse Problem. Human Rights Watch. https://www.hrw.org/news/2020/01/11/un-peacekeeping-has-sexual-abuse-problem.
[xiv] UN Women. 2023. Facts and figures: Ending violence against women. UN WOMEN, https://www.unwomen.org/en/what-we-do/ending-violence-against-women/facts-and-figures.
[xv] ICRC. 2020. International Humanitarian Law: Answers to your Questions. ICRC. https://www.icrc.org/en/publication/0703-international-humanitarian-law-answers-your-questions.
[xvi] ICRC. 2020. International Humanitarian Law: Answers to your Questions. ICRC. https://www.icrc.org/en/publication/0703-international-humanitarian-law-answers-your-questions.
[xvii] Hague Convention IV of 1907.
[xviii] Palmieri, Daniel. 2021. Sexual Violence in armed conflict: the historical limits of humanitarian action and the ICRC in the 20th century. ICRC blogs.
[xix] ICC Statute, art 7(1) (g), 8(2)(b) (xxii), 8(2) (e)(vi).
[xx] United Nations Security Council. 2000. Resolution 1325 (2000). UNSCR. http://unscr.com/en/resolutions/doc/1325.
[xxi] The Office of the Special Adviser to the Secretary-General on Gender Issues and Advancement of Women (OSAGI). 2000. Landmark resolution on Women, Peace and Security. OSAGI. https://www.un.org/womenwatch/osagi/wps/.
[xxii] Grimes, Rachel. 2019. Exclusive interview with UNSCR 1325 as she turns 19. NATO REVIEW. https://www.nato.int/docu/review/articles/2019/10/31/exclusive-interview-with-unscr-1325-as-she-turns-19/index.html.
[xxiii] Askin, Kelly. Global: Ending impunity for crimes committed by UN peacekeepers. International Bar Association. https://www.ibanet.org/article/CEBC5F69-A238-49BB-B85A-5E8D878FE485.
[xxiv] UN Missions. Conduct UN Field Missions. United Nations. https://conduct.unmissions.org/user/login?destination=node/100039352.
[xxv] Essa, Azad. 2017. Why do some peacekeepers rape? The full report. Al Jazeera. https://www.aljazeera.com/features/2017/8/10/why-do-some-peacekeepers-rape-the-full-report.
[xxvi] United Nations Economic and Social Affairs (2015). The World’s Women 2015, Trends and Statistics, p. 159, https://worlds-women-2020-data-undesa.hub.arcgis.com.
[xxvii] Rome Statute of the International Criminal Court (1998) arts 8, 12-13, 17, 28, 33.
[xxviii] ICRC, Customary International Law Study, Rule 145 – Reprisals.
[xxix] Protocol (I) Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (1977) arts 1(1), 20, 51(6), 52(1), 82, 85-91.
[xxx] Lecture from Dyan Mazaurana. Gender, Culture, Conflict Course. Fall 2022.
[xxxi] Dodds, Paisley. 2017. AP Exclusive: UN child sex ring left victims but no arrests. Associated Press. https://apnews.com/article/africa-arrests-united-nations-only-on-ap-e6ebc331460345c5abd4f57d77f535c1.
[xxxii] Dodds, Paisley. 2017. AP Exclusive: UN child sex ring left victims but no arrests. Associated Press. https://apnews.com/article/africa-arrests-united-nations-only-on-ap-e6ebc331460345c5abd4f57d77f535c1.
[xxxiii] Dodds, Paisley and Kleinfeld, Phillip. 2019. EXCLUSIVE: Blunders in Central African Republic sex abuse probe detailed in internal UN review. The New Humanitarian. https://www.thenewhumanitarian.org/investigations/2019/10/31/Central-African-Republic-sex-abuse-probe-internal-UN-review.
[xxxiv] Carlsen, Anne Marie. The UN Sustainability Framework- do no harm and do good. Expert Group Meeting on Mainstreaming Sustainable Development in the UN system, New York 3-5 December 2013. https://sdgs.un.org/sites/default/files/statements/4558undp.pdf.
[xxxv] Di Razza, Namie. (2020). The Accountability System for the Protection of Civilians in UN Peacekeeping. The International Peace Institute. https://www.ipinst.org/wp-content/uploads/2020/12/POC-Accountability-System-Final.pdf.
[xxxvi] Di Razza, Namie. (2020). The Accountability System for the Protection of Civilians in UN Peacekeeping. The International Peace Institute. https://www.ipinst.org/wp-content/uploads/2020/12/POC-Accountability-System-Final.pdf.
[xxxvii] Di Razza, Namie. (2020). The Accountability System for the Protection of Civilians in UN Peacekeeping. The International Peace Institute. https://www.ipinst.org/wp-content/uploads/2020/12/POC-Accountability-System-Final.pdf.
[xxxviii] United Nations Peacekeeping. 2022. MANDATES AND THE LEGAL BASIS FOR PEACEKEEPING. United Nations. https://peacekeeping.un.org/en/mandates-and-legal-basis-peacekeeping.
[xxxix] United Nations Repertory of Practice of United Nations Organs. Charter of the United Nations. https://legal.un.org/repertory/art2.shtml.
[xl] Essa, Azad. 2017. Why do some peacekeepers rape? The full report. Al Jazeera. https://www.aljazeera.com/features/2017/8/10/why-do-some-peacekeepers-rape-the-full-report.
[xli] France24 News. 2008. Ex-UN employee sentenced for rapes of African girls. https://www.france24.com/en/20080911-ex-un-employee-sentenced-rapes-african-girls-france.
[xlii] France24 News. 2008. Ex-UN employee sentenced for rapes of African girls. https://www.france24.com/en/20080911-ex-un-employee-sentenced-rapes-african-girls-france.
[xliii] The Public Broadcasting Service (PBS) Frontline. 2018. French Police to Investigate New Abuse Claims Against Former UN Peacekeeper. https://www.pbs.org/wgbh/frontline/article/french-police-to-investigate-new-abuse-claims-against-former-un-peacekeeper/.
[xliv] The Public Broadcasting Service (PBS) Frontline. 2018. French Police to Investigate New Abuse Claims Against Former UN Peacekeeper. https://www.pbs.org/wgbh/frontline/article/french-police-to-investigate-new-abuse-claims-against-former-un-peacekeeper/.
[xlv] Slanjankic, Azer. UN covers up sex scandal. Deutsche Welle. https://www.dw.com/en/bolkovac-un-tries-to-cover-up-peacekeeper-sex-abuse-scandal/a-19082815.
[xlvi] Laville, Sandra. 2016. UN whistleblower who exposed sexual abuse by peacekeepers is exonerated. The Guardian. https://www.theguardian.com/world/2016/jan/18/un-whistleblower-who-exposed-sexual-abuse-by-peacekeepers-is-exonerated.
[xlvii] BBC News. 2016. UN whistleblower resigns over French peacekeeper ‘child abuse.’ BBC News, https://www.bbc.com/news/world-africa-36481372.
[xlviii] BRIAN ROSS, DAVID SCOTT and RHONDA SCHWARTZ. 2005. Peace at What Price?: U.N. Sex Crimes in Congo. ABC news. https://abcnews.go.com/Blotter/UnitedNations/story?id=489306&page=1.
[xlix] UN. General Assembly (62nd sess. : 2007-2008). 2008. United Nations Comprehensive Strategy on Assistance and Support to Victims of Sexual Exploitation and Abuse by United Nations Staff and Related Personnel: resolution / adopted by the General Assembly. https://digitallibrary.un.org/record/614563?ln=en#record-files-collapse-header.
[l] Olivera Simić & Melanie O’Brien (2014) ‘Peacekeeper Babies’: An Unintended Legacy of United Nations Peace Support Operations, International Peacekeeping, 21:3, 345-363, DOI: https://www.tandfonline.com/doi/full/10.1080/13533312.2014.938581.
[li] International Case Law on Coercive Environments, https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1090&context=facultyworkingpapers.
[lii] Jasmine-Kim Westendorf, Louise Searle, Sexual exploitation and abuse in peace operations: trends, policy responses and future directions, International Affairs, Volume 93, Issue 2, 1 March 2017, Pages 365–387, https://doi.org/10.1093/ia/iix001.
[liii] Human Rights Watch. 2002. The War Within the War Sexual Violence Against Women and Girls in Eastern Congo. https://www.hrw.org/report/2002/06/20/war-within-war/sexual-violence-against-women-and-girls-eastern-congo.
[liv] Di Razza, Namie. (2020). The Accountability System for the Protection of Civilians in UN Peacekeeping. The International Peace Institute. https://www.ipinst.org/wp-content/uploads/2020/12/POC-Accountability-System-Final.pdf.
[lv] Di Razza, Namie. (2020). The Accountability System for the Protection of Civilians in UN Peacekeeping. The International Peace Institute. https://www.ipinst.org/wp-content/uploads/2020/12/POC-Accountability-System-Final.pdf.
[lvi] Knut Dörmann and Jose Serralvo, “The Obligation to Prevent Violations of International Humanitarian Law,” International Committee of the Red Cross, September 24, 2015.
[lvii] International Justice Resource Center. Internationalized Criminal Tribunals. https://ijrcenter.org/international-criminal-law/internationalized-criminal-tribunals/.
[lviii]We can learn from Special Court for Sierra Leone; the Special Tribunal for Lebanon; Serious Crimes Panels of the Dili District Court (East Timor); Iraqi High Tribunal; the War Crimes Chamber in Bosnia and Herzegovina; Prosecutor v. Jean-Paul Akayesu; and Prosecutor v Jean-Pierre Bemba.
[lix] Art. 85 AP I, Rule 156 CIHL Study of 2005), including the serious breaches (Art. 49 GC I, Art. 50 GC II, Art. 129 GC III, Art. 146 GC IV, ICRC Updated Commentary (2017), paras. 2966 and 2968, ICRC Updated Commentary (2018), para. 3095, ICRC Updated Commentary (2020), para. 5249).
[lx] Rachael Kitching, Kelisiana Thynne, and Vanessa Murphy. (2021). Walking the talk on SGBV: an implementation checklist to narrow the gaps between international law and domestic practice. The International Committee of the Red Cross Blogs. https://blogs.icrc.org/law-and-policy/2021/11/25/sgbv-implementation-checklist-international-law/.
[lxi] International Justice Resource Center. Internationalized Criminal Tribunals. https://ijrcenter.org/international-criminal-law/internationalized-criminal-tribunals/.
[lxii] Peggy Kuo. (2002). Prosecuting Crimes of Sexual Violence in an International Tribunal, 34 Case W. Res. J. Int’l L. 305. https://scholarlycommons.law.case.edu/jil/vol34/iss3/8.
[lxiii] Peggy Kuo. (2002). Prosecuting Crimes of Sexual Violence in an International Tribunal, 34 Case W. Res. J. Int’l L. 305. https://scholarlycommons.law.case.edu/jil/vol34/iss3/8.
[lxiv] Peggy Kuo. (2002). Prosecuting Crimes of Sexual Violence in an International Tribunal, 34 Case W. Res. J. Int’l L. 305. https://scholarlycommons.law.case.edu/jil/vol34/iss3/8.
[lxv] Peggy Kuo. (2002). Prosecuting Crimes of Sexual Violence in an International Tribunal, 34 Case W. Res. J. Int’l L. 305. https://scholarlycommons.law.case.edu/jil/vol34/iss3/8.
[lxvi] Peggy Kuo. (2002). Prosecuting Crimes of Sexual Violence in an International Tribunal, 34 Case W. Res. J. Int’l L. 305. https://scholarlycommons.law.case.edu/jil/vol34/iss3/8.
[lxvii] Peggy Kuo. (2002). Prosecuting Crimes of Sexual Violence in an International Tribunal, 34 Case W. Res. J. Int’l L. 305. https://scholarlycommons.law.case.edu/jil/vol34/iss3/8.
[lxviii] Di Razza, Namie. (2020). The Accountability System for the Protection of Civilians in UN Peacekeeping. The International Peace Institute. https://www.ipinst.org/wp-content/uploads/2020/12/POC-Accountability-System-Final.pdf.
[lxix] Di Razza, Namie. (2020). The Accountability System for the Protection of Civilians in UN Peacekeeping. The International Peace Institute. https://www.ipinst.org/wp-content/uploads/2020/12/POC-Accountability-System-Final.pdf.
[lxx] Di Razza, Namie. (2020). The Accountability System for the Protection of Civilians in UN Peacekeeping. The International Peace Institute. https://www.ipinst.org/wp-content/uploads/2020/12/POC-Accountability-System-Final.pdf.
[lxxi] Di Razza, Namie. (2020). The Accountability System for the Protection of Civilians in UN Peacekeeping. The International Peace Institute. https://www.ipinst.org/wp-content/uploads/2020/12/POC-Accountability-System-Final.pdf.
[lxxii] Di Razza, Namie. (2020). The Accountability System for the Protection of Civilians in UN Peacekeeping. The International Peace Institute. https://www.ipinst.org/wp-content/uploads/2020/12/POC-Accountability-System-Final.pdf.
[lxxiii] Di Razza, Namie. (2020). The Accountability System for the Protection of Civilians in UN Peacekeeping. The International Peace Institute. https://www.ipinst.org/wp-content/uploads/2020/12/POC-Accountability-System-Final.pdf.
[lxxiv] Di Razza, Namie. (2020). The Accountability System for the Protection of Civilians in UN Peacekeeping. The International Peace Institute. https://www.ipinst.org/wp-content/uploads/2020/12/POC-Accountability-System-Final.pdf.
[lxxv] Rachael Kitching, Kelisiana Thynne, and Vanessa Murphy. (2021). Walking the talk on SGBV: an implementation checklist to narrow the gaps between international law and domestic practice. The International Committee of the Red Cross Blogs. https://blogs.icrc.org/law-and-policy/2021/11/25/sgbv-implementation-checklist-international-law/.
[lxxvi] Rachael Kitching, Kelisiana Thynne, and Vanessa Murphy. (2021). Walking the talk on SGBV: an implementation checklist to narrow the gaps between international law and domestic practice. The International Committee of the Red Cross Blogs. https://blogs.icrc.org/law-and-policy/2021/11/25/sgbv-implementation-checklist-international-law/.
[lxxvii] Durch et al. 2009. IMPROVING CRIMINAL ACCOUNTABILITY IN UNITED NATIONS PEACE OPERATIONS. STIMSON CENTER REPORT NO. 65 REV. 1. https://www.files.ethz.ch/isn/102719/Improving_Criminal_Accountability_June2009.pdf/
[lxxviii] Durch et al. 2009. IMPROVING CRIMINAL ACCOUNTABILITY IN UNITED NATIONS PEACE OPERATIONS. STIMSON CENTER REPORT NO. 65 REV. 1. https://www.files.ethz.ch/isn/102719/Improving_Criminal_Accountability_June2009.pdf/
[lxxix] Durch et al. 2009. IMPROVING CRIMINAL ACCOUNTABILITY IN UNITED NATIONS PEACE OPERATIONS. STIMSON CENTER REPORT NO. 65 REV. 1. https://www.files.ethz.ch/isn/102719/Improving_Criminal_Accountability_June2009.pdf.
[lxxx] Durch et al. 2009. IMPROVING CRIMINAL ACCOUNTABILITY IN UNITED NATIONS PEACE OPERATIONS. STIMSON CENTER REPORT NO. 65 REV. 1. https://www.files.ethz.ch/isn/102719/Improving_Criminal_Accountability_June2009.pdf/
[lxxxi] Durch et al. 2009. IMPROVING CRIMINAL ACCOUNTABILITY IN UNITED NATIONS PEACE OPERATIONS. STIMSON CENTER REPORT NO. 65 REV. 1. https://www.files.ethz.ch/isn/102719/Improving_Criminal_Accountability_June2009.pdf/.
[lxxxii] Durch et al. 2009. IMPROVING CRIMINAL ACCOUNTABILITY IN UNITED NATIONS PEACE OPERATIONS. STIMSON CENTER REPORT NO. 65 REV. 1. https://www.files.ethz.ch/isn/102719/Improving_Criminal_Accountability_June2009.pdf/
[lxxxiii] Askin, Kelly. Global: Ending impunity for crimes committed by UN peacekeepers. International Bar Association. https://www.ibanet.org/article/CEBC5F69-A238-49BB-B85A-5E8D878FE485.
[lxxxiv] Askin, Kelly. Global: Ending impunity for crimes committed by UN peacekeepers. International Bar Association. https://www.ibanet.org/article/CEBC5F69-A238-49BB-B85A-5E8D878FE485.
[lxxxv] Peggy Kuo. (2002). Prosecuting Crimes of Sexual Violence in an International Tribunal, 34 Case W. Res. J. Int’l L. 305. https://scholarlycommons.law.case.edu/jil/vol34/iss3/8.