Sexual Exploitation and Abuse (SEA) During the UN Peacekeeping Operations
Info: 45725 words (183 pages) Dissertation
Published: 11th Dec 2019
THE WOMEN PROTECTION UNDER THE INTERNATIONAL HUMANITARIAN LAW: A STUDY FOCUSED ON THE SEXUAL EXPLOITATION AND ABUSE (SEA) DURING THE UN PEACEKEEPING OPERATIONS
A CASE STUDY OF SEXUAL EXPLOITATION AND ABUSE (SEA) IN THE DEMOCRATIC REPUBLIC OF THE CONGO (DRC)
ABSTRACT
THE WOMEN PROTECTION UNDER THE INTERNATIONAL HUMANITARIAN LAW: A STUDY FOCUSED ON THE SEXUAL EXPLOITATION AND ABUSE (SEA) DURING THE UN PEACEKEEPING OPERATIONS
From the past period until the 21st century, the new international issues and challenges have been increased noticeably. As occurring during the interwar era, wars between states have been considered as a significant issue. After the establishment of the United Nations and the International Law, wars between have rarely occurred. However, the new International issues and challenges have been emerging through times. At the same time, with the presence of the development of the International Law, it also reflects the new International issues and challenges. Since then the armed-conflict has been considered as one of the issues, but the United Nations responses to the issue by establishing the Peacekeeping Operations under the Chapter VII of UN Charter. With the Peacekeeping Operations, it does not guarantee the success of its response. One of the challenges, which this dissertation will focus on that originates from the Peacekeeping operations itself is the Sexual Exploitation and Abuse (SEA). From the Sexual Exploitation and Abuse (SEA), Women who are considered as in a vulnerable group suffer greatly from it. To analyze and study on the women protection from the Sexual Exploitation and Abuse (SEA), this dissertation will examine and analyze over the related International law, especially under the International Humanitarian Law (IHL) and International Human Rights Law (IHRL). Therefore, this paper will put forward into five important chapters. To begin with, the Chapter one just starts with the brief introductory background of SEA, scope and limitation of this study, and research methodology. Importantly, chapter two opens with the definition of the “Sexual Exploitation and Abuse (SEA), examine and analyze the International legal frameworks which granted protection for women from such violation and abuse, especially the special protection of women. Moving further to the Chapter three of this dissertation, an in-depth analysis of the applicability of the IHL, and obligations of the UN peacekeepers to bring the perpetrator to justice. Chapter four of this dissertation will have a deep analysis in the case of Sexual Exploitation and Abuse (SEA) in the Democratic Republic of the Congo (DRC). From this chapter, I have found that not the Intervention Brigade is considered as a party of the armed-conflict, but the MONUSCO as a whole is considered as a party of the armed-conflict in the Democratic Republic of the Congo (DRC), which would place the mission as a whole under the application of the IHL. To finalize this dissertation with the chapter five, I have come up with such potential approach and proposal for the future protection of women from the Sexual Exploitation and Abuse (SEA) committed by the UN personnel. The Conclusion of this dissertation is drawn in Chapter Six. It summarizes all the discussion and analysis of this dissertation and shows the keystones in the development of rules protection women.
CONTENTS
1-4. Scope and Limitation of the Study
CHAPTER TWO: THE PROTECTION OF THE WOMEN UNDER THE INTERNATIONAL LEGAL FRAMEWORK
2-1. The Introduction to International Humanitarian Law
2-1.1 Legal Source of International Humanitarian Law
2-1.1.1. International Conventions or Treaties
2-1.1.2. Customary International Law (CIL)
2-1.1.3. General Principles of Law and the Judicial Decision
2-2. The Peacekeeping Operations
2-2.1. The Historical Development of Peacekeeping Operations
2-2.1.1. The Traditional Peacekeeping Operations
2-2.1.2. The Peacekeeping Operations with civilian tasks
2-2.1.3. The Peacekeeping Operations: Peace Enforcement
2-2.1.4. The Peacekeeping Operations: Peace-building
2-2.1.5. The Peacekeeping Operations: as a hybrid mission
2-2.2. Organizational Structure of Peacekeeping Operations
2-3. The General Introduction to the Sexual Exploitation and Abuse
2-3.1. The Development of the Prohibition of the SEA
2-3.2. Definition of Sexual Exploitation and Abuse
2-3.3. The Scope of Application and Standards on the SEA
2-4. The General Protection under International law
2-4.1. The Women Protection under the International Humanitarian Law
2-4.1.1. The 1949 Geneva Conventions
2-4.2. The Women Protection Under the IHRL
2-4.2.1. The Convention on the Rights of Child (CRC)
3-1. Applicability of the IHL to the UN Peacekeeping Operations
3-1.1. Status of Force Agreements (SOFA)
3-1.2. The Convention on the Safety of United Nations and Associated Personnel
3-1.3. The Bulletin on the Observance by United Nations Forces of International Humanitarian Law
3-1.3.1. The problem of the Bulletin’s Nature
3-2. The Status of the UN Peacekeepers
3-2.1. Peacekeepers under the International Humanitarian Law
3-2.2. Peacekeepers under the U.N Documents
3-2.3. The Status Of UN peacekeepers under Customary Law
3-3. UN Peacekeepers’ Obligations
3-3.1. The General Principle of UN peacekeeping operations
3-3.2. The Blue Helmet’s Code of Conduct
3-4. The obligations of the Troop Contributing Countries
3-3.1. Assuring the accountability of the committed crimes or offences
4-1. The UN Peacekeeping Operations in the DRC
4-1.1. The Establishment of MONUSCO
4-1.1.1. Background Crisis of DRC
C. The March 23 Movement (M23)
4-1.2. The notion of Intervention
4-1.2.1. The Military Intervention
4-1.2.2. The Humanitarian Intervention
4-1.2.3. The Intervention Brigade
4-2. The Applicability of IHL to the MONUSCO and Intervention Brigade
4-2.1. Determining the Armed-Conflict in the DRC
4-2.1.1. Active Armed Groups in the DRC
A. The Democratic Forces for the Liberation of Rwanda
C. The Allied Democratic Force
D. The National Congress for the Defense of the People
4-2.2. The MONUSCO as a party to the Armed-Conflict
4-2.2.1. Relevance to the Intervention Brigade
4-2.3. Legal Status of Peacekeepers under MONUSCO and Intervention Brigade
4-3. The Challenges to the Women Protection in the Congo
4-3.1. Allegation of the SEA by UN Personnel
4-3.1.4. The impacts on the Victims of the SEA
B. The Psychological or Mental impact
4-3.4. Lack of evidence and insufficient investigation
4-4. International response to the Sexual Exploitation and Abuse
4-4.1. United Nations’ Response to the SEA
5-1. The National efforts over the Sexual Exploitation and Abuse
5-1.1. A vetting mechanism on the Security Forces
5-1.1.1. The Increasing role of the Female UN personnel
5-1.2. The Amendment on Paragraph 47 of the Model UN Status of Force Agreement
5-2. The Problem Solving at the International Level
5-2.1. The feasibility of the Special Permanent Court
Table 1: The Current Peacekeeping Operations
Table 2: The Allegation, Investigation and Actions from 2016 to 2017
Table 3: The Response of Member States on the SEA Allegations
Table 4: The Sexual Exploitation and Abuse (SEA) from 2010 to 2017
LIST OF ABBREVIATIONS
ADF Allied Democratic Force
API Additional Protocol I to the Geneva Conventions of 12 August 1949
APII Additional Protocol II to the Geneva Conventions of 12 August 1949
ASEAN Association of Southeast Asia Nations
AU African Union
CAH Crime against Humanity
CIL Customary International Law
CNDP National Congress for the Defense of the People
CRC Convention on the Rights of the Child
DPKO Department of the Peacekeeping Operations
DRC Democratic Republic of the Congo
EU European Union
FARDC Forces Armees de la Republique Democratique du Congo
FDLR Democratic Forces of the Liberation of Rwanda
FIB Force Intervention Brigade
GCI The First Geneva Convention
GCII The Second Geneva Convention
GCIII The Third Geneva Convention
GCs The Geneva Conventions
GCVI The Fourth Geneva Convention
IAC International Armed-Conflict
ICC International Criminal Court
ICJ International Court of Justice
ICRC International Committee of the Red Cross
ICSS International Commission on Intervention and State Sovereignty
IHL International Humanitarian Law
IHRL International Human Rights Law
IOs Intergovernmental Organizations
LRA Lord’s Resistance Army
M23 The March 23 Movement
MONUC United Nations Mission in the Democratic Republic of the Congo
MONUSCO United Nations Organization Stabilization Mission in the Democratic Republic of the Congo
NATO North Atlantic Treaty Organization
NGOs Non-Governmental Organizations
NIAC Non-International Armed Conflict
OCHR Office for the Coordination of Humanitarian Affairs
OIOS United Nations Office of Oversight Service
ONUSAL United Nations Observer Group in El Salvador
OSCE Organization for Security and Cooperation in Europe
PIL Public International Law
R2P Responsibility to Protect
RCD Rassemblement Congolais pour la Democratie
SEA Sexual Exploitation and Abuse
SOFAs Status of Forces Agreements
SRSG Special Representative of the Secretary-General
TCCs Troop Contributing Countries
UN United Nations
UNAMIR United Nations Assistance Mission for Rwanda
UNGA United Nations General Assembly
UNHCR United Nations High Commissioner for Refugees
UNMID United Nations-African Union Mission in Darfur
UNSC United Nations Security Council
UNSG United Nations Secretary General
UNTAC United Nations Transitional Authority in Cambodia
UNTAG United Nations Transition Assistance Group
UNTSO United Nations Truce Supervision Organization
CHAPTER ONE: INTRODUCTION
With the evolution of the International Law, it has been divided into two aspects known as the Public International Law and Private International Law. Regarding the Public International Law (PIL), it governs and helps to maintain the International Peace and Security. Children and Women, who have always been considered as in the vulnerable groups, have been violated and abused with their rights, especially in certain developing countries suffering from the civil wars and conflicts. This has not been viewed as a new issue for the Public International Law (PIL), but as a new challenge contributing the greatest threat to the International Peace and Security.
If we take a look at the International Legal system concerning the protection of individual rights, we definitely can find that the International Humanitarian Law (IHL) has always been there to serve and develop in response to the globalization[1]and the violation of individual rights, especially to the child’s and women’s rights. In the field of the International Humanitarian matters, it should be viewed as the International Common problems rather than being viewed as an isolated one[2] since the International Humanitarian problems are all interconnected in concerns of the International Security. The world, from time to time, is continuously undergoing rapid changes in relevance to the International Humanitarian matter which deems in need of cooperation from State and Non-State Actors. The International Humanitarian actions are conducted and cooperated by states, Intergovernmental Organization, and non-governmental organization are as means to help and protect individual and groups of people against the threat or the violation of their rights. Working out a code of cooperation on the Humanitarian issues and proceeding from the general principles, it should be starting from the regional or international cooperation to make use of the Intergovernmental Organization or Regional Organizations, particularly in the field of the International Humanitarian actions. The International Cooperation on the International Humanitarian issues should be based upon the general principles[3] as being mentioned below:
- Given more respect to the right of self-determination of each nation. For instance, states receive their rights to decide its own future without any interference from the outside,
- The collective cooperation among states in spreading out the peace’s notion, disarmament, and protect and promote the human rights and freedoms,
- The cooperation between all states on the dissemination of objective information[4], and enhancing the quality of such information about each nation’s issues so that international confidence, understanding, and awareness can be promoted,
- The Exclusion or prohibition of any kind of discrimination and exploitation or abuse against individuals’ rights, especially the protection of the vulnerable groups,
- The collection response from all states in abolishing genocide and apartheid, and prohibiting the existence of the notion of fascism which possibly leads to the human rights violations.
After the end of the World War II (WWII), it could be considered as the Modern International Law, with the existence of the Intergovernmental Organization which is the so-called “United Nations (UN).” Based on the establishment and its existence, the United Nations has played an important role in maintaining the International Peace and Security. As based on what mentioned above, the Intergovernmental Organization known as the United Nations (UN) has carried a remarkable role in the International Humanitarian matters, especially to carry out the International Humanitarian Actions. Due to the fact that the United Nations (UN) has no its own standing troop or police force,[5] the question then arises, “How can the United Nations carry out its significant role in maintaining the International Peace and Security, especially to carry out the International Humanitarian Actions.? To illustrate the mentioned question, the United Nations has been considered as the one of the Intergovernmental Organization (IOs) that has been joined by many countries around the globe. The purpose of the United Nations is carried out by the member states as by the UN Charter.[6] However, the member states, in a condition of respecting state sovereignty, are not allowed to carry out the act directly. Member states normally contribute their troop to the United Nations so that the organization can carry out the actions.[7] The troop, polices or armies that are sent to the United Nations are called the peacekeepers. The countries, which the United Nations send the peacekeepers to, are mostly suffering from the humanitarian crisis, and are in need of the humanitarian assistance. In the humanitarian crisis, the exploitation and violation mostly on the civilian’s rights, especially on the women and child who are in the vulnerable group. The Violation of women’s rights could also be considered as the violation of the dignity, safety, and Human Rights. Surprisingly, such violations are also involved by the UN peacekeepers whose mission is supposed to maintain the peace and security and to protect the civilian. In this sense, the impunity among the peacekeepers becomes the problem of implementation of the International Law, which the UN peacekeepers are committing crimes during the peacekeeping mission could mostly get away from the criminal prosecution for their actions due to the fact that the immunity is granted to UN peacekeepers.[8] Due to the mentioned problem, it brings and remains injustices to the victims of the crime committed by the UN peacekeepers, and extremely ruins the reputation and image of the United Nations.[9]
As mentioned above about the problem, it could be seen that this study is considered to be very significant because the problem is not only about the International peace and security. However, it has also been involved in the women protection who are in the vulnerable group, and the reputation and image of the United Nations which could lead the loss of trust from the countries around the world. To mention and study the problem, this paper will show how the International law, especially the IHL as well as the IHRL can be used as the International Legal Instrument in protecting and promoting the women’s rights. As to have an in-depth study, this paper will take and be focused on the case study of the Democratic Republic of Congo since this country has suffered and remains from such phenomenon of peacekeeping personnel involving in the sexual exploitation of women and girls in 2004 during the UN Peace Support Operations causing a serious public outcry.
Based on such a problem, the women, who are in the vulnerable group, has still been suffering from the exploitation and abuse. Surprisingly, the problem remains unsolved, and the victims are also living in the shadows. In this sense, it is an important point for the international community to pay more attention to the women protection and justice of the victims, especially the case of the Democratic Republic of Congo (DRC) which has been alleged of the exploitation and abuses the most among countries in Africa Continent. As a result, this dissertation will be focused and studied by answering the following legal issues:
- What constitutes Sexual Exploitation and Abuse (SEA)? Who can be considered as the perpetrator of the Sexual Exploitation and Abuse?
- What are the regional or International legal frameworks in the purpose of protecting Women’s right?
- What are the obligations and responsibilities of the United Nations to the issue of SEA? And to what extent will the United Nations bound by the International Humanitarian Law?
- Is there any illegitimated act or cases of the Sexual Exploitation and Abuse (SEA) committed by the UN peacekeepers? What are the responsibilities or accountabilities of the peacekeepers in violation of the sexual exploitation and Abuse?
- What are the potential approaches and proposals to the future protection of women during the UN Peacekeeping Operations?
Acknowledging the important that Women’s rights should be protected from all violations, especially in the case of Sexual Exploitation and Abuse, and the necessary of the legal analysis of the International Legal Frameworks concerning the Women’s rights so that the available approach and proposal could be brought up to order to bring justice to the victims. As a result, this paper will focus on the following important point which is organized as below:
Chapter One: The initial part of the paper is the Introduction which will focus on: The rationales detailing the motions why the topic is chosen, the Legal Issues which are going to be dealt with, the Study objective of this dissertation will be presented in that section, the scope and limitation of study, last but definitely not lease the paper will also focus on the research methodology.
Chapter Two: Answering the legal issue, this section will firstly provide the general introduction to the Sexual Exploitation and Abuse (SEA) by defining the term “Sexual Exploitation and Abuse”, and studying about the relation between the International Humanitarian Law as one of the International Law and the Sexual Exploitation and Abuse (SEA).examine and analyze the International legal frameworks which granted protection for women from such violation and abuse, especially the special protection of women.
Chapter Three: This section will provide the updated review of the current status of UN peacekeepers within the legal and regulatory framework for their conduct, and examine the obligation of UN peacekeepers, Troop Contributing Countries (TCCs), and host state. Importantly, this section will also examine and analyze the International Legal Frameworks concerning on the applicability of the IHL, and obligations of the UN peacekeepers in order to bring the perpetrator to justice.
Chapter Four: This section will be studied on the problem of Sexual Exploitation and Abuse toward the women as victims by the UN peacekeepers and in hopes of contributing to raise awareness of the case. Lastly, the UN’s response to the women protection will also be presented.
Chapter Five: Resembling the conclusion of this dissertation, the last section of this paper will search and look up for the future possible solution and proposal on the improvement of the women protection during the UN peacekeeping operations.
Chapter Six: Last but definitely not least, this chapter will wrap up and provide a summary of this dissertation, with the potential solution and proposal which have been mentioned in Chapter five.
Owing to the nature of the topic, there has been many crimes committed during the United Nations Peacekeeping Operations, but this paper will only focus on the Women Protection from the Sexual Exploitation and Abuse which leads to the accusation of the UN peacekeepers as perpetrators. Within the African Continent, there are some cases of the UN Peacekeeping Missions which leads to the Sexual Exploitation and Abuse. However, this scope of this dissertation will mainly focus on the case of the Sexual Exploitation and Abuse (SEA) in the Democratic Republic of the Congo (DRC). Besides, this research has encountered several limitations when this paper is being written. The problem of Sexual Exploitation and Abuse (SEA) happens to several countries in the African Continent. However, due to the constraint, this dissertation faces another limitation that it will only focus on the women protection from the Sexual Exploitation and Abuse (SEA) during the UN Peacekeeping Operation in the Democratic Republic of the Congo (DRC).
With the nature of the topic, this study will employ descriptive study in order to collect information about background of key actors, international norms, rules and laws, case reports, and case study regarding the topic. With the collected information from the descriptive study, the analytical study will also be employed to analyze the international norms, rules, and laws which will be used in Chapter 3, 4 and 5 of this dissertation. The framework of this study is based on the content analysis on the Sexual Exploitation and Abuse (SEA) during the UN Peacekeeping Operation in the Democratic Republic of the Congo (DRC).
For the data collection, this paper will utilize both the primary sources and secondary sources in order to fill in the analysis and justify the finding of this paper. In order to collect the primary sources, International Conventions or Agreements will be employed as references to analyze the facts and cases. The International Convention or agreements includes the Charter of United Nations, the Four Geneva Convention in 1949, and other related International Laws concerning the Women Protection. Besides, secondary data will be obtained from online articles, journals, previous related researches, case reports, case studies, and International Organizations’ Publications.
CHAPTER TWO: THE PROTECTION OF THE WOMEN UNDER THE INTERNATIONAL LEGAL FRAMEWORK
The International Humanitarian Law which is known as IHL is a collective rule of the International conventions or agreements seeking for humanitarian reasons to solve societal issues and effect of the armed-conflict.[10] Since the International Humanitarian Law (IHL) is also one part of the International Law, it helps to govern the relations between States and International Organization, and other subjects of the International Law. The International Humanitarian Law applies to all of the situations of the armed-conflict, which aim to protect the civilian and regulate over the method of warfare.[11]
As mentioned above that the International Humanitarian Law (IHL) is also one part of the International Law, the source of the International Humanitarian Law (IHL) could also be considered as the same as the source of the International Law[12] as well, which include International Treaties or conventions, Customary International Law, General Principle of Law, and judicial decision and teaching of the most qualified publicists.
With the International Law, its sources might be broader than the sources of the International Humanitarian Law (IHL). Regarding International conventions or treaties as a source of the International Humanitarian Law, there are two main treaties as main sources of the International Humanitarian Law, including The Hague Convention in 1907 or known as the “law of the Hague”, and The Geneva Conventions (GCs) known as the “law of Geneva”.[13] With The Hague Conventions of 1899 and 1907, it could be considered as a set of rules regulating the conduct of hostilities, complying with the rules of engagement. In this sense, it can be seen the relations between The Hague Convention and The Geneva Convention that such rules of the Hague later improved and gone through the fourth Geneva Convention and additional Protocols. Relating to the four Geneva Conventions, its applicability has been universally accepted through the ratification.[14] The four Geneva Conventions grant protection to the categorized vulnerable group, which is considered to be different from each other. The First Geneva Convention (GCI) was established with the purpose in protecting the wounded and sick. The Second Geneva Convention (GCII) was created with the aim to provide protection to the wounded, sick and shipwrecked in the armed-conflict at sea. The Third Geneva Convention (GCIII) aims to provide the protections to Prisoners of War (PoW). Last but definitely not least, the fourth Geneva Convention (GCIV) aims to protect the civilians in the armed-conflict, including anyone who live under the occupation.[15]
As one of the primary sources of the International Law, the Customary International Law (CIL) consists of two essential elements, including the objective element as state practice and the subjective element as opinion rurissivenecessitatis[16]. State Practice can be referred as the practice of state for sufficient duration of time and has been accepted as law from many other states, which is, to sum up as a practice with continuity and uniformity of usage.[17] It is the same thing applying the Customary International Law (CIL), the Customary International Law (ICL) contains elements of general practice as law and opinion juris. Importantly, the so-called Customary IHL has played a very significant role in the armed-conflict because it helps to fill gaps where the International Human Rights Law (IHRL) could not afford to apply, especially to enhance the protection of victims.[18] Linking the relation between The Hague and Geneva Conventions and its Additional Protocol to the Customary IHL, such conventions and rules could also be considered and accepted as Customary International Law.[19] In this regard, acknowledging the recognition from most of the states, Hague especially Geneva Conventions and its Additional Protocol as the Customary IHL undoubtedly have developed as the important key sources of the International Humanitarian Law (IHL).
The General principle of law and the judicial decision and teachings of the most qualified publicists as the secondary or subsidiary sources, they are also playing an important role in the International Humanitarian Law (IHL) as the General Principle of Law recognizes the Jus Cogens norms[20] such the principle of prohibition against Genocide, Slavery or Torture, which granted non-derogable obligations to all states; and the judicial decision as the court plays its role in interpreting IHL.[21]
Throughout the past period, the UN peacekeeping operations have been engaged in many countries to ensure the International Peace and Security which some of them already succeeded and some of them are remaining to exist until nowadays (Table 1).[22] On the one hand, the term “Peacekeeping Operation” should be firstly defined and understood so that the deeper explanation could be easily understood. The Peacekeeping Operation is the operation that has been considered as one of the effective tools for the United Nations in helping the host countries to get out of the difficult circumstance like from the complicated conflict to peace.[23] Basing on its legitimacy and uniqueness, the peacekeeping bears the burden sharing and ability to deploy troops and police which are contributed by the member states from around the world on the voluntary basis in order to operate such various mandates.[24] As mentioned above that the International Humanitarian Law (IHL) aims to protect persons who do not involve, and no longer to be part of hostilities.[25] Hypothetically, the International Humanitarian Law (IHL) is considered as relevance to the UN Peacekeeping Operations since these operations are deployed in the post-conflict period which the presence of violence may be occurred and ongoing, or conflict possibly reignite. By saying that the IHL as relevance to the UN peacekeeping Operation because the presence of the violence or hostilities during the conflict, it might not be an enough ground to the application of the IHL to the UN personnel. However, the conducts of the UN personnel during the operation would attribute to the application of the IHL to the operation or UN personnel itself. As a result, the UN peacekeeping may potential be placed under the scope of application of the International Humanitarian Law (IHL).
Source: The Department of Peacekeeping Operations and Department of Field Support and Department of Management, January, 2017.[26]
With the Peacekeeping Operations for over the six and a half decade, the UN Peacekeeping Operations have been transformed fundamentally from its nature and purpose.[27] It undergoes the transformations by five generations which will be discussed in this section, including the first generation: traditional peacekeeping, the second generation: civilian tasks, the third generation: peace enforcement, the fourth generation: peacebuilding, last but not least the fifth generation: hybrid missions.
Referring to the first generation, the Peacekeeping operation that had been engaged during the cold war was the traditional one, which is occurred only to keep peace or end armed-conflicts by ceasefire.[28] The first generation operation are lightly armed with the strict rules of engagement, by operating its mandate under Chapter VI of UN Charter. Such restriction on the nature of operations were made because of the relationship between the principle of state sovereignty and Human Rights during the Cold War period.[29] Due to the nature of peace operations at that time, the peace operations were deployed under three basic principles, including the consent of the host countries, the principle of impartiality which is no discrimination between the conflicting parties, and the prohibition of the use of force from the United Nations.[30] One of the best example for the first generation of peace operations is the mission in 1948 “the United Nations Truce Supervision Organization (UNTSO), which were deployed as an unarmed observer in the Middle East during the conflict between the Arab countries and Israelis on the ground of new emerged state “Israel”, with the main purpose to just reach the cease-fire agreement between the conflicting parties.[31]
Regarding the second generation of the peace operations, the nature and extent of operation itself have been transformed because of the end of Cold War changing in the International Politics. Due to the end of the Cold War, there have been much demands and supplies for peace operations.[32] During the Cold War and post-Cold War, many people suffered from the famines.[33] The first generation of peacekeeping operation was not easy to deploy, which lead to the development of the second generation of peacekeeping operation which is easier to dispatch. However, the mission was sent to more complex and dangerous situation. Developing from the first generation, this second generation added up the civilian tasks, such as the humanitarian aid, the promotion of human rights, Capacity building on the government system, organizing the election, and disarmament and reconciliation.[34] There are several missions from the second generation, such as the United Nations Transition Assistance Group which is known as the UNTAG in Namibia, the UN Observer Group in El Salvador (ONUSAL), and the United Nations Transitional Authority in Cambodia (UNTAC).[35]
With the third generation of a peace operation, the transformation of nature of peace operations to peace enforcement, with the increasing of permission to use force to fulfill the mandate of the operations. This generation of a peace operation is different and developed from the first and second generation by being deployed under the Chapter VII of the UN Charter. With this generation, the increasing of permission to the use of force directly resulted from the moral after the three failed missions in Rwanda, Somalia, and Bosnia, which seems to encourage the shift in balancing the principle of non-intervention and Human Rights.[36]
Developing to the fourth generation of peace operations as peacebuilding, it combines the permissiveness of use of force with the civilian tasks, which is also known as state-building. With its nature and complexity of its mandate, it led to the remarkable increase in numerous of organization and other actors involving into the peacebuilding operations,[37] including the North Atlantic Treaty Organization (NATO), Organization for Security and Cooperation in Europe (OSCE), UN specialized agencies, and International financial institutions.
Last but definitely not least, the fifth generation of peace operation which develops to the hybrid missions respond to the complex context. The United Nations shared its job with the regional organization in order to fulfill the mandates. Such Missions under mandates of the UN Charter are carried out by the regional actors, including NATO, African Union (AU), and European Union (EU).[38] This generation of peace operations deploy military and police personnel under mixed commands of both the United Nations and regional organization deploying military personnel to the same operations, but with separate command and form of mandate.[39] For example, the hybrid mission of UN African Union Peacekeeping Operation (UNAMID), under the Chapter VII of UN Charter and authorized by the Security Council.[40]
Owing to its nature, the Peacekeeping operations are considered to be part of the institutional structure of the United Nations, which is known as the subsidiary organ of the United Nations by the Article 7(2) of the UN Charter.[41] The Peacekeeping missions are operated under the Department of the Peacekeeping Operations (DPKO) which is established in 1992 by Boutros Boutros Ghali as Secretary General of the UN, with the purpose to assist the state parties and the Secretary-General in maintaining the International Peace and Security.[42] With the political and executive instruction, the DPKO can operate its missions around the globe and keep contact with the Security Council, financial and troop contributing countries, and the conflicting parties. Particularly, the DPKO also provides support, and formulate policies or guidelines on military and police personnel, and mine action.
Regarding the UN Peacekeeping Operation, there are several actors involving in the Operations, including the United Nations (UN), the Troop Contributing Countries who send their military contingent for missions, and the Host state[43] where the operations will be taken place.[44] Importantly, there are four main offices of the Department of Peacekeeping Operations (DPKO), including the Office of Military Affairs, the Policy Evaluation and Training Division, the Office of the Rule of Law and Security Institutions, and the Office of Operations. The Department of Peacekeeping Operations is working under the Secretary General who will provide the general instruction and the general political guidance. However, the United Nations Security Council still will be the one who has the utmost authority on the operations and have the power to decide whether the deployment of military contingent is continued.[45] Looking for the main role, the Office of Operations is running to assist the Secretary General in formulating strategic policy or guidance, provides support to the missions. The office of the rule of law and security institutions was created in 2007, with the purpose to improve the links and the coordination of the department’s activities in the extents of police, justice, security reform, reconciliation between the conflicting parties, mine actions, and disarmament. The Policy Evaluation and Training Division aims to disseminate policy or guidelines, coordinate and operate standardized training programs, especially to evaluate the progress of the ongoing mission’s mandate and formulate policies and framework for the cooperation with the external partners. Lastly, the office of the Military Affairs is tasked to deploy the best military competency in fulfill the mandate of the operations, to improve the performance and effectiveness of military factor in the UN Peacekeeping Operations. During the operations, the authority over the military command is given to the Force Commander who will be on behalf of the UN Secretary-General. That is the reason why the Secretary-General will appoint the Force Commander by himself.[46] In any case that the operation is involved with the serious civilian tasks, a Special Representative of the Secretary-General (SRSG) will also be appointed by the Secretary-General, alongside with the Force Commander. However, the responsibility between the two will be in detail in the internal document.[47] The Commander of the force will be the one who is responsible for watching over the good conduct and discipline of the Force in the Operations.[48] However, there is a problem concerning on the conducts and disciplines of the UN personnel over the issue of Sexual Exploitation and Abuse on the Women which will be discussed in the next section.
As mentioned and be known that Women has been considered to be in the vulnerable ground of the society, both domestic and International legal framework has played a significant role in protecting women from the abuse and violation of their rights. After the World War II (WWII) in 1945, the United Nations, as one of the International Legal frameworks, had been adopted in order to maintain the International Peace and Security[49], especially the charter has also set out one of its goals to endorse faith in the fundamental human rights, in the dignity and worth of the human person, especially in respect to promoting the human rights and the fundamental freedoms.[50] Before examining and analyzing the International Legal frameworks regarding the Women protection, the term “Sexual Exploitation and Abuse” must be defined and explained instantly. As a result, the next section will be focus on the definition of the term “Sexual Exploitation and Abuse (SEA)”, the development of the International Law of the prohibition of the Sexual Exploitation and Abuse (SEA), last but definitely not least the Scope of application and standard on the Sexual Exploitation and Abuse (SEA).
Since the problem of the Sexual Exploitation and Abuse has never been considered as new, but it still remains a serious challenge for the International Law. After the World War II ended up as a tragic historical record, there has been a development of the International Law resulting from the new emergence of the new actors or subjects of the International Law.[51] With the negligence of the Nuremberg and Tokyo tribunal in prosecuting the crime of sexual violence, the tribunal of former Yugoslavia and Rwanda was in successful to prosecute different crimes of sexual violence, such as Genocide, Crime Against Humanity (CAH), Torture, Enslavement, and War Crime.[52] The Vienna Conference concerning on the Human Rights was held in 1993 to contribute to the change of traditional view and mark a great attention to the sexual crimes. It could be seen as one of the success effort on the Women’s rights to end the Women’s Right violation. With the conference in 1993, the declaration and action plan regarding the elimination violence against women and specified types of sexual harassment and exploitation (such as from International trafficking in person or prejudice of culture) were issued and considered as the violation of human dignity.[53] In the International context, this legal framework has borne purposes in protecting women and girls in/during armed conflict and post-conflict, especially to undermine the impunity for those who committed such crimes that have mentioned above.[54] With the advancement of the existing norms and new standards concerning the Women’s Rights, there had been another development of Women’s rights by the United Nations Security Council adopting the Resolution 1325 in 2000 regarding the Women, Peace, and Security. This Resolution aimed to protect the rights of women and girls during the conflict and post-conflict from such crimes such as rape and other sexual exploitation and abuses, with the full implementation of the International Humanitarian Law (IHL) as well as the International Human Rights Law (IHRL).[55] Taking another step of the development in 2008, the Security Council issued Resolution 1820 concerning the sexual violence in the Armed-Conflict, emphasizing and ending the sexual violence as a tool of war to degrade, dominate, and force evacuation of civilian of local people and ethnic group.[56] Besides, Resolutions adopted by the General Assembly and Security Council concerning on the Sexual Exploitation and Abuse, there are many other International Legal instruments on such problems. The Rome Statute of the International Criminal Court (ICC) has also played a significant role in bringing justice and impunity by prosecuting crimes related to Sexual Exploitation and Abuse (SEA) under the International Law.[57] The International Legal instruments such as “The Hague Convention,” and “The Four Geneva Convention” could be known as the main sources of the International Humanitarian Law (IHL).[58] In the sense of the relation between the IHL and IHRL, the IHL grants protection to women and girls within the time of Armed-Conflict, which is complemented by the IHRL during the peace time where the protection granted by the International Humanitarian Law reaches its limitation.[59] Such Legal protection of the Women’s Rights could be found under the Convention on the Elimination of All Forms of Discrimination against Women (the so-called CEDAW), and the Convention on the Rights of the Child. Such the International Legal Protection under the International Humanitarian Law and Human Rights Law that have mentioned above will be discussed in detail the latter section of this chapter.
In the sense that Sexual Exploitation and Abuse still remains a challenge for the International Community to handle, it has been considered as the serious violation of the Human Rights.[60] With the definition of the Sexual Exploitation and Abuse, it is divided it into two violations, including the “Sexual Exploitation” and “Sexual Abuse.”[61] Owing to the definition of the Sexual Exploitation, it is defined as any activity or attempt of the abuse toward the vulnerability or vulnerable group[62], and the abuse of differential power and trust for the purposes of sexual activity, including benefiting socially, politically, and monetarily.[63] Besides, according to the Secretary General’s Bulletin, Sexual Abuse is defined as any act or threats of a sexual nature physically regardless by forces, in a coercive situation or under unequal condition.[64] One the one hand, according to the United Nations Office on Drugs and Crime, the sexual abuse is considered as any coercive actions in a range of physically, sexually, and psychologically conditions toward women at all ages, particularly it also includes any forms of non-consensual sex such as sexual exploitation and harassment.[65] Based on the definition above, the definition of the Sexual Exploitation and Abuse (SEA) can be simplified as any acts involving the sexual activities for the purpose of exchanging money, food, shelter or other goods toward the vulnerability or someone in the vulnerable group, whether threatening or forcing under the unequal positions and conditions.
Any Sexual Exploitation and Abuse committed by an International or National United Nations personnel and anyone working under the organization’s mission, it would be considered as a serious misconduct and might be fall under the disciplinary measures. In this sense, having a sexual relationship between UN personnel and beneficiaries of such assistance are not discourage due to the fact that the differential in power and position would be abused. Such acts of Sexual Exploitation and Abuse (SEA) are listed as below:[66]
- Having Sexual intercourse with anyone under 18 years old would be prohibited, even with the consent,
- Having Sex trade[67] would be resulted in punishment,
- Having exchange of sexual acts for the humanitarian assistance[68] is prohibited,
- Any force, threat or coercive action for sexual intercourse is prohibited.
- Case Study of Sexual Exploitation and Abuse of United Nations Transnational Authority in Cambodia (UNTAC)
As the definition of the Sexual Exploitation and Abuse has been provided in the last section, it would be more informative to study on the case of United Nations Transnational Authority in Cambodia (UNTAC). For the first step to understand the UNTAC, there was a historical reason behind its establishment. Cambodia had never been in a stable condition for decades because of persistent conflict and human rights abuse within the country.[69] During the regime of the Khmer Rouge ruling Cambodia (1975-1979), there were approximately 1.5 million deaths[70], including living in famine, starvation, and diseases.[71] In 1979, Vietnam invaded Cambodia with the purpose of driving the Khmer Rouge out of the country. After then, the new government was established, changing the regime to the People’s Republic of Kampuchea. After this new government lasting for twelve years, it was challenged by the two forces such as Front Uni National pour un Cambodge Independant Neutre Pacifique Et Cooperatif (FUNCINPEC, the royalist faction to the former king Norodom Sihanouk), and KPNLE force. These forces were supported by China, the United States (US) and the Association of Southeast Asia Nations (ASEAN), while the new government was backed by Vietnam and the Soviet Union.[72] This led to the instability in the country, including the refugees along the border of Cambodia and Thailand. However, the peace talk initiated in 1988, and the new government was established by changing the name to the State of Cambodia (SOC). Cambodia had not been in a stable condition yet until the peace agreement was signed in 1991 which is known as the Paris Peace Agreement.[73]
From the agreement allowing the United Nations (UN) to deploy their troop to Cambodia, it led to the establishment UN peacekeeping operation in 1992 which was known as United Nations Transnational Authority in Cambodia (UNTAC). Without talking much about the political thing, the United Nations Transnational Authority in Cambodia (UNTAC) made its biggest achievement in May 1993, which was the successful free and fair election in Cambodia.[74] However, at the same time, there were many cases of the Sexual Exploitation and Abuse in Cambodia because of numerous sex houses and prostitutes (including child).[75] With the presence of the United Nations Transnational Authority in Cambodia (UNTAC), it had been a notice that there has been an increase in a number of prostitutes from 6000 to 25000 after the deployment of UNTAC.[76] The UN peacekeeping troop were seen going into the brothels and having sexual activities with the prostitutes, and this rose a problematic of the rise of prostitutes in Cambodia.[77] Alongside the rise of prostitutes, the UNTAC also caused a very significant mistake of all times which was to leave a high rate of HIV/AIDs in Cambodia.[78] However, the United Nation did not take any action or response to the problem of the Sexual Exploitation and Abuse (SEA).[79] It could be understood the reason behind through the unclear definition of the Sexual Exploitation and Abuse (SEA) and the Statute of limitation.
As discussed in the section “Definition of Sexual Exploitation and Abuse (SEA)”, the definition was officially given through the section 1 of the 2003 bulletin. As being argued by Professor Whitworth Sandra, the Sexual Exploitation during the United Nations Transnational Authority in Cambodia (UNTAC) was not a Sexual Exploitation and Abuse[80], and did not fit to the definition of Sexual Exploitation and Abuse (SEA) given under the section 1 of the Special Measure for Protection from Sexual Exploitation and Sexual Abuse[81]. The Statute of limitation is rule and law that prevents prosecutors from charging person with a crime which was committed from years ago.[82] Through this, the sexual exploitation during the UNTAC was occurred in 1992-1993, not even existence of the Special Measure for Protection from Sexual Exploitation and Sexual Abuse yet. In consistent with the principle of the non-retroactivity in the international law, the effect of the present law or rule would not extend to the past committed crime and would not be able to pass the judgment on the circumstance before to its implementation.[83] From this reason, the definition of Sexual Exploitation and Abuse (SEA) was given by the 2003 bulletin. However, the sexual exploitation during UNTAC was occurring in 1992-1993. Therefore, basing on the principle of the non-retroactivity in the international law, the 2003 bulletin would not have any effect on such case, even the sexual exploitation during UNTAC was not matched to the definition given in the 2003 bulletin.
With the current issue in the International Community, the issue of the Sexual Exploitation and Abuse (SEA) involved by the UN personnel to the local people tend to emerge due to the drastic increase of UN Peacekeeping Operations.[84] With such a problem, the cases of UN personnel’s serious misconduct slowly exposed to the International Community through media and Human rights reports or NGOs annual reports.[85] Involving in the SEA and human trafficking, the UN peacekeeper was exposed in the 1990s with the case of Cambodia. However, it was dismissed due to the ground of insufficient evidence.[86] Besides, the case of Sexual Exploitation and Abuse (SEA) also happened in Kosovo and Bosnia, along with the reports produced by United Nations High Commissioner for Refugees (UNHCR) about the Sexual Violence and Exploitation in Guinea, Liberia and Sierra-Leone indicating that SEA was frequently committed UN peacekeeping personnel and local NGO.[87] With the Special measures for Protection from Sexual Exploitation and Sexual Abuse issued by the Secretary-General’s Bulletin, it applies that such application of the present bulletin applies to all the staff of the United Nations, such as to all staff from different administered organs or programmes of the UN.[88] Particularly, the act of committing crime of the SEA by the UN peacekeeping personnel weakens the very strict rule of conduct or ethics of peacekeeping. True, the UN peacekeeping missions are mandated to ensure peace and security, especially to protect civilian.[89] However, involving the Sexual Exploitation and Abuse with the local civilian or people breaches the International Laws, particularly the ethical conduct of the peacekeeping unit. In addition to that, such matters going through media which weakens the reputation of the United Nations, as well as the loss of trust from people within the International community.[90] As a result, the UN Peacekeeping personnel operating missions under the command and control of United Nations shall not commit any acts of Sexual Exploitation and Abuse (SEA), and bears a particular responsibility to protect women and children.[91] Regarding the command and control under the United Nations, there are some set ethical conducts and standards of conduct for the UN peacekeeping personnel, which will be discussed in detail in chapter 3 of this dissertation.
Seeing women as one of the vulnerable group, the protection of their rights are easily violated during the armed-conflict and post armed-conflict. Then, the question often arisen where are the international legal framework that grant legal protection to the women under the International Law? As discussed about the inter-relations between the IHL and IHRL that the IHL is, to the extent where it could not afford to apply due to its limitation, is complemented by the IHRL. To illustrate the legal protection granted by the International legal framework, this dissertation will indicate and divide the legal protection under the International law into two aspects, including the Women Protection under the International Humanitarian Law (IHL), and the Protection of Women under the International Human Rights Law (IHRL), which both of them will be discussed in details with the next sections of this chapter.
Under the International Humanitarian Law, it is served to prevent human from suffering from war due to based gender issues. However, the current challenge is different from the old day’s problem that women as vulnerable people during the armed-conflict and post armed-conflict still face certain problems,[92] and this sexual violence or Sexual Exploitation and Abuse has been considered as as a current challenge for the International Community. Under the International Humanitarian Law, there two main International Legal instruments granting protection for Women, such as the Hague Convention and Geneva Convention and its Additional Protocol.
The Hague Convention II in 1899, as a reference, was seen as the International codification of crime of sexual violence.[93] It later was also included in the Hague Convention in 1907, and it then expended through the development of the Geneva Convention 1949 and its Additional Protocols.[94]
Founded in the Geneva Convention, the women would be protected under the consideration as in the vulnerable group, with the article 12 of Geneva Convention stating that: “Women shall be treated with all consideration due to their sex.” From the protection of women, women, the same to all civilian or who are not considered to be part of the armed force, are protected from any abuse or any violence by the party of the conflict, or from the negative impact of the hostilities.[95] Owing the purpose of the fourth Geneva Convention relating to the protection of civilian persons in time of war, Women are protected in all circumstances as stipulated under the Fourth Geneva Conventions and Additional Protocol I (AP I) & II (AP II). The general protection for women or civilians who will be benefited from the convention, as stipulated under the article 27 of the Fourth Geneva Convention:
Article 27:
Protected persons are entitled, in all circumstances, to respect for their persons, their honour, their family rights, their religious convictions and practices, and their manners and customs. They shall at all times be humanely treated, and shall be protected especially against all acts of violence or threats thereof and against insults and public curiosity.
Women shall be especially protected against any attack on their honour, in particular against rape, enforced prostitution, or any form of indecent assault, […][96]
With this provision, it indicates that Women as a protected person shall be protected in all circumstance, against any acts of violence, insult, threats, and others related acts. In addition to that, it indicated in the second paragraph of the article 27 that it would be a violation the International Humanitarian Law for such practices which numerous of women from infancy to old age were forced to involve into the sexual activities with any consent, including rape, sexually brutal treatment, or sexual exploitation and abuse. Particularly, around based or headquarter of troops or UN personnel were located, even when they get through or pass by, tremendous amount of women were forcibly asked to have sexual intercourse which go against the wills of the victims. As a result, such mentioned acts are prohibited under the Geneva Convention.
Owing to the uniqueness and independent characters of the IHL and IHRL, both of them still remain to complement each other so that the protection of human being would be ensured. Under the International Human Rights Laws, there are several international instruments which grant protection for women from the Sexual Exploitation and Abuse (SEA), like the Convention on the Rights of the Child (CRC). In any case that the UN personnel involve in the Sexual Exploitation and Abuse by using differential power between them and women, they are considered to violate women’s rights which granted by the conventions above.[97]
The legal protection of Women also grant from the Convention on the Rights of Child (CRC). The issues of the Sexual Exploitation and Abuse do not occur only on the women, but also girls who have been forced to engage in the sexual intercourse during the armed-conflict, even happen during the UN peacekeeping operations. From the stretch, Women and girls are protected by the convention through the local authority or government, which is already stipulated in the article 34 of the Convention:
States Parties undertake to protect the child from all forms of sexual exploitation and sexual abuse. For these purposes, States Parties shall in particular take all appropriate national, bilateral and multilateral measures to prevent:
a. The inducement or coercion of a child to engage in any unlawful sexual activity;
b. The exploitative use of children in prostitution or other unlawful sexual practices;
c. The exploitative use of children in pornographic performances and materials.[98]
As a result, the member states of the convention protecting child from the SEA bear responsibility take all necessary measures in order to ensure the legal protection of women and girl under this convention.
With the tragedy history of the great barbarian invasion and the World Wars, tons of the women and children still lives in fears and physical or mental scars of the treatment.[99] It wakes the conscience of all humankind and emphasizes over the necessity of the women protection that Women shall be treated in accordance with the special consideration or protection due to their sex.[100] Certain acts such as forcing women to involve into the immorality by using violence or threat and any acts which would lead to any form of sexual assault are constituted as a violation on women’s honour, rape, and enforced prostitution. These mentioned acts are prohibited in any places and all circumstances, and women are protected in accordance with the paragraph 2 of Article 27 of the Geneva Convention.[101] The protection which granted to women regardless of the nationality, beliefs, age, race, religious, status or social conditions shall be respected for their dignity as women.
CHAPTER THREE: THE APPLICABILITY AND OBLIGATION OF THE UN PEACEKEEPERS OF THE INTERNATIONAL HUMANITARIAN LAW TO THE PEACE OPERATIONS
From scratch, it has been contested that the United Nations is not bound by the treaties of the International Humanitarian Law (IHL) since the United Nations itself does not constitute as a state who possesses rights and duties as a state possesses such as juridical and administrative powers, especially not a party to the four 1949 Geneva Convention or their Protocols. On the other hand, it does not mean and has been no longer an excuse that the conduct of the UN forces are staying out of the humanitarian constraint or the IHL considerably does not apply.[102]
Besides from contesting over the application of the International Humanitarian Law (IHL), the rule of customary International Humanitarian Law are universally applicable to states, International Organizations (IOs), or Individuals, which rules are included to apply to any types of armed conflict.[103] With the notion of armed conflict, there are two types such as International Armed Conflict (IAC) and Non-International Armed Conflict (NIAC). However, since the missions are deployed to the foreign country in the peacekeeping areas, it is not necessary to discuss the Non-International Armed Conflict (NIAC).[104] According to the Article 2 of the 1949 Geneva Convention, it provided that:
In addition to the provisions which shall be implemented in peacetime, the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them.
The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance.[105]
Based on the provided article, it concerns on the “High Contracting Parties” only, who has ratified the 1949 Convention. This means that the parties concerning to the International Armed Conflicts are limited to states only. However, with current international practices and legal concepts, it slowly acknowledges the qualification of IOs as to become a party to the International Armed Conflict. Under the UN Charter[106], UN using its armed force to stop and prevent aggression and to maintain the International Peace and Security would also become a party to the International Armed Conflict.[107] By doing so, the UN signs an agreement with the host state so that the UN can send its force to operate the mission, and the rule and principles of the International Humanitarian Law could be inserted through the Status of Force Agreements between the United Nations and the Host States.
A Model Status of Force Agreement (SOFA) is considered as an agreement made between a host state and a foreign state (or International Organization, United Nations as a best example), in which a foreign state stations its military forces in a host state in order to follow the mandate of the UN Peacekeeping Operations.[108] Concluding the SOFAs or Status of Mission Agreement (SOMAs), it derives from the practical lesson from every each mission from the past period.[109]The Model State of Force Agreement (SOFA) has been playing a significant role and instrument in establishing conditions of the function of the operations to be more effective and efficient, as well as to provide proper protection for the UN peacekeepers.[110] For the very time through the Status of Forces Agreements (SOFAs) in 1992, the application of International Humanitarian Law was included in the agreement which is known as the Status of the United Nations Assistance Mission for Rwanda (UNAMIR).[111] It could be noted that the statement in the status of forces agreement between the UN and Rwanda include ensuring the respect of International Humanitarian Law by using the term “Principles and spirit of International Humanitarian Law” which would be used to govern the conduct of the UN peacekeeping personnel.
Through the Convention of the Safety of United Nations and Associated Personnel, it could be noticed about the application of the International Humanitarian Law (IHL) to the UN peacekeeping operations as well. Time passing with the changes of situation and issues, the Convention was adopted by the General Assembly in 1994 because the UN peacekeeping operations have established to engage in the areas where the civil war or conflict is still occurring. With the adoption of the convention, it contributes to the security and safety of the UN peacekeeping personnel which is stipulated in the Article 20 of the Convention on the Safety of United Nations and Associated Personnel:
The applicability of international humanitarian law and universally recognized standards of human rights as contained in international instruments in relation to the protection of United Nations operations and United Nations and associated personnel or the responsibility of such personnel to respect such law and standards;[112]
Aside from the protection of rights of the UN peacekeeper, such provision recognizes the application of the International Humanitarian Law (IHL) and International instruments relating to the human rights. At the same time, it recognizes that the personnel bears the responsibility to respect such law and standards which the Convention on the Safety of United Nations and Associated Personnel recognize.[113]
During the meeting of the Intergovernmental group of experts for the protection of war victims held in Geneva 1995, the implementation and the dissemination of the International Humanitarian Law were recommended. By doing so, the International Committee of the Red Cross (ICRC) carrying out its mandate to disseminate the IHL work with UN organs, specialized agencies, and other regional organizations.[114] Right after that, the Bulletin on the Observance by United Nations Forces of International Humanitarian Law was introduced and issued by the Secretary General in 1999. With the content in the section 1 of the Bulletin on the Observance by United Nations Forces of International Humanitarian Law, it indicates the application of the principle and rules of the IHL in the Bulletin over the UN peacekeeping personnel in the circumstance the personnel are actively involving in the armed conflict as combatant[115] With such provision, in any case that the UN peacekeeping personnel are engaging in the armed conflict, it could be proved by the section 1 on the qualification of the UN peacekeeping personnel to become a party to the armed conflict. However, including such provision has been criticized by states because the main purpose of the TCCs sending their troop is to operate under the Chapter VI of the UN charter, not to engage in wars.[116] From my point of view, including such provision which is the ground of applying the IHL is a great opportunity in locating the UN peacekeeping personnel into the right position because they always claim as to operate under the principle of self-defence so that they can fulfill their mandate which somehow leaves impunity. In addition to that, it helps to regulate the conduct of the personnel since the nature of the UN peacekeeping operation keep shifting from the traditional peacekeeping to peace enforcement where it is allowed to use forces.
Owing to its nature and legal affect, the Bulletin on the Observance by United Nations Forces of International Humanitarian Law, it has a legally binding effect toward the UN peacekeeping personnel.[117] Comparing to the hundreds of pages of the Geneva Convention, the Bulletin seems to be very short and brief. From the Bulletin, it only mentions that every member of the UN peacekeeping operations are fully acquainted with the principles and rules of the International Humanitarian Law (IHL). However, it has not stated, under the Bulletin, what liability that the UN peacekeeper would be subjected to due to the breach and violation of the International Humanitarian Law. Instead, it has been mentioned under the section 4 of the Bulletin on the Observance by United Nations Forces of International Humanitarian Law that the UN peacekeeping personnel would be subjected to prosecute by their own national court in any case of violation of the International Humanitarian Law.[118] With such provision, it bars the host state from taking direct action to prosecute the peacekeeper, but to send the peacekeepers back to their home for the investigation and prosecution.[119] However, peacekeepers, most of the case, who were sent back for the investigation and prosecution were not trailed for the crime they committed. As a result, it left the victims from the violation of the International Humanitarian Law with inadequate remedy and injustice.
The legal status of personnel contributed by member states of United Nations deploying during the peace operations is in the reflection of the complicated legal status of peacekeepers. Legally, the legal status of peacekeepers is depended upon the mandates and purpose of the particular operations, and depended upon whether it falls under the International Humanitarian Law or other International treaties governing the peace operations. It could also be contested on the application of the International Humanitarian Law to the United Nations. As the opinion of the International Court of Justice (ICJ), the United Nations is considered to be a subject of the International Law, with the capacity to possess international rights and duties.[120] This means to the rules of the International Law, including the International Humanitarian Law. Particularly, the model status of forces agreements between U.N and a host state also specifically add up for the respect of the International Humanitarian Law[121], which the UN peacekeepers is mandated. Importantly, Both the Report of the Panel on the UN Peace Operations and the Secretary General’s Bulletin on Observance by United Nations Forces of International Humanitarian Law (which will be discussed in the later part of this chapter) declare for the application of the International Humanitarian Law to the UN forces or personnel. Considering violations of the International Human Rights and International Humanitarian Law, the UN peacekeepers has committed crimes, including Torture, Attacks on civilian, especially the Sexual Exploitation and Abuse (SEA) during the missions in Somalia, Kosovo, Bosnia, Mozambique, Haiti, East Timor, Congo, and Cambodia. True, as member states, they have a duty to respect the Geneva Convention in 1949, and the responsibility still remains even if the personnel is already sent to the United Nations Peacekeeping Operations. The UN Peacekeepers would be prosecuted by their respective states’ courts in the light of violation of the International Humanitarian Law.[122] Therefore, it should not be any problem in the application of the International Humanitarian Law in determining the legal status of the UN peacekeepers.
With the peace enforcement as a deployed operation, the status of the UN peacekeepers in the situation when the use of force is permitted is not hard to define. In such situation, the UN peacekeepers are considered as armed forces sending from the foreign countries involving in the armed-conflict. Therefore, they would be categorized as combatants under the Article 4 of the Third Geneva Convention and Article 43 of its Additional Protocol I. On the other hand, the status of the UN peacekeeper could be changed in accordance with its mandates, and even also the factual situation of the participation of the operations should be taken into account because the mandate where it aims to maintain the peace by using force in circumstance of self-defense only, which will be discussed in the next section of this chapter, is not really clear and difficult to determine.
Accordingly, the International Humanitarian Law has divided persons into two categories, including the Combatant or as a member of armed-forces of the conflicting parties, and Non-Combatant or Civilians.[123] Reflecting the International Humanitarian Law, the UN peacekeepers may be classified as civilians.[124] However, it could also contest over the legal status of the peacekeepers as civilians due to the connection of the personnel with the United Nations (UN) and the Troop-Contributing Country (TCC). With the presence of the forces of foreign entities in the territory in the circumstance that the armed-conflict is still occurring, they would be considered as combatants.[125] On the other hand, if peacekeepers are not involving or participating in the hostilities, the United Nations and Troop-Contributing Country are not considered to be part of the conflict. Then, the connection between the peacekeepers and UN and Contributing Country is nothing to affect the status of the peacekeepers, unless the mandate of the operations is a mission with an enforcement action. As not one of the party to the conflict, the Status of the UN peacekeepers will be as civilians under the IHL,[126] with certain protections, which will be discussed in the following section. Any means of capture, killing, or injuring are prohibited and the personnel would be placed under the protected status by using the sign, emblems and uniform of the United Nations.[127] With another point of view, the peacekeepers could also be considered as combatants if they are taking part or participating in the hostilities. This would present the UN and TCC to be a party of the conflict, so peacekeepers are no longer protected and their legal status shifts from civilians to combatants.[128]
Aside from the providing legal status of the UN peacekeepers under the International Humanitarian Law (IHL), Various U.N Documents contribute to the definition of the legal status of UN peacekeepers, as well as to see whether the legal status of the UN peacekeepers under the International Humanitarian Law (IHL) has been assigned appropriately.
There are two milestone documents of UN concerning the legal status of the UN Peacekeepers, such as the Convention on Safety of United Nations and Associated Personnel, and the Secretary General’s Bulletin. With the 1994 Convention on the Safety of United Nations and Associated Personnel and its Optional Protocol in 2005, A specific legal basis of protection for peacekeepers involving in the UN Peace Operations. From the Convention on Safety of United Nations and Associated Personnel, it established that those who are taking part of the UN peace enforcement operations established under the Chapter VII of the U.N Charter are considered as combatants. However, the peacekeepers are also protected and criminalize certain act against the United Nations or Associated Personnel under the Article 9[129] of the 1994 Convention on the Safety of United Nations and Associated Personnel, including murder, kidnapping, threat or violent attack against the United Nations or associated personnel. At the same time, the Bulletin on the Observance by United Nations Forces of International Humanitarian Law is also on the line to determine the legal status of the UN peacekeepers. Under the section 1 of the Secretary General’s Bulletin, the present rule applies to the United Nations within the armed conflict in which the peacekeepers are involving actively so as to become combatants or enforcement actions, and in the operations in which the use of force is allowed but only in self-defence.[130] In other words, even in the situation that the peacekeeping operation is mandated to use force only in self-defence, they may be considered as combatants if they are involving and engaging actively in the armed conflict.[131] Thus, the legal state of peacekeepers as protected civilians could be drawn depending upon their participation during the armed conflict.
From the protection of the UN peacekeepers in Peace Operations, the UN peacekeepers of the contributing states operating in a host state’s territory hold a special legal status.[132] Their special legal status is the immunity granted by the 1946 Convention on the Privileges and Immunities of the United Nations, which the Peacekeepers shall enjoy the granted immunities from the legal process so that they can fulfill their tasks and mandates.[133] This immunity of the peacekeepers during the operation derives from the International customary law rather than the Status of Force Agreements or the Status of Mission Agreements itself. This Principle of Immunity not only applies to organs of states, but also to the military or civilian staffs of the United Nations (UN) or other regional organizations enjoying the International legal personality. With even the personnel contributed by the contributing countries, most of the operational control, not full command, may be still exercised by the United Nations. True, the peacekeeping personnel enjoy the granted immunity. However, it might be lost in any case of wrongful acts, and the Troop Contributing Countries (TCCs) would be accountable for their national military contingents. Besides enjoying the immunity, under the rule 33 of the Customary International Humanitarian Law, the legal status of peacekeepers would be regarded as protected civilians.[134]
Under the Capstone Doctrine, it regulates the general principle of the conduct of the United Nations peacekeeping operations as well as their function leading to the success of the operations.[135] With the core value in the tasks of the operations, every peacekeeper has obligations to ensure impartiality, Integrity, Respect, and Loyalty which all of them will be discussed and explained in the following sections.
Every UN peacekeeper has to remain impartial at all times, by not being favorable to any party of the conflict and being preferential or supportive to any group of the host state. By doing so, the UN peacekeepers have to understand the main mandate of the operations and follow any directives and operational instructions. One of the most important obligation is that every UN peacekeepers must not take any actions that would likely to jeopardize the mandate or legitimacy of the operations.[136]
To build the integrity, UN peacekeepers must be honest at all times, with the ability and competence to respect the morality. It has been considered to be very essential to have a trustful relationship with the population of a host state. Therefore, Peacekeepers must behave themselves and act professionally. By doing so, Peacekeepers, at all time, have to remain in a proper dress, conduct themselves in accordance with the professionality and disciplines, and have to refrain from any form of misconduct such as negligence, or violation of Human Rights or any other relevant applicable rules. [137]
Last but definitely not least, as one of the important general principle that every UN peacekeepers have to keep in mind. UN peacekeepers have to keep to be royal to the objective and goals of the UN which are to maintain International Peace and Security, and the mandate of the operation. Peacekeeper has to balance the conflict of interests by always standing in the UN’s Interests. Thus, Peacekeepers have to show themselves to achieve the goals of operations and United Nations, regardless of their personal interests.[138]
Beside the basic principles and rules of the UN peacekeepers’ conduct, the United Nations Conduct and Discipline Unit issued and introduced the UN Standards of conduct which is known as the ten rules of code of personnel conduct for blue helmet in 1998. UN peacekeepers have an obligation to follow these ten rules code of conduct during their operations, which is listed below:
1. Dress, think, talk, act and behave in a manner befitting the dignity of a disciplined, caring, considerate, mature, respected and trusted soldier, displaying the highest integrity and impartiality. Have pride in your position as a peace-keeper and do not abuse or misuse your authority.
2. Respect the law of the land of the host country, their local culture, traditions, customs and practices.
3. Treat the inhabitants of the host country with respect, courtesy and consideration. You are there as a guest to help them and in so doing will be welcomed with admiration. Neither solicit nor accept any material reward, honor or gift.
4. Do not indulge in immoral acts of sexual, physical or psychological abuse or exploitation of the local population or United Nations staff, especially women and children
5. Respect and regard the human rights of all. Support and aid the infirm, sick and weak. Do not act in revenge or with malice, in particular when dealing with prisoners, detainees or people in your custody.
6. Properly care for and account for all United Nations money, vehicles, equipment and property assigned to you and do not trade or barter with them to seek personal benefits.
7. Show military courtesy and pay appropriate compliments to all members of the mission, including other United Nations contingents regardless of their creed, gender, rank or origin.
8. Show respect for and promote the environment, including the flora and fauna, of the host country.
9. Do not engage in excessive consumption of alcohol or any consumption or trafficking of drugs.
10. Exercise the utmost discretion in handling confidential information and matters of official business which can put lives into danger or soil the image of the United Nations.[139]
With the issue which is discussing in this paper and currently is a new challenge for the United Nations to tackle, Peacekeepers have to pay more attention toward rule 4 of the ten rules. Such situation of the on-going conflict and the deployment of the Peacekeeping operations, the children and women, who are in the vulnerable population, must be respected and protected from any suffering, harm or immorality. Unfortunately, even with the existence of the Ten rule code of conducts for the UN peacekeepers, the problem of Sexual Exploitation and Abuse is still existing even left many victims injustice and the perpetrator can avoid the punishment from the crime they have committed during the operations.
Concerning the issues of the Sexual Exploitation and Abuse which possibly committed by the UN peacekeeping personnel, Troop Contributing Countries has also played a significant role in such issue as well due to the connection of the personnel and the Troop-Contributing Countries (TCCs). True, the Troop Contributing Countries send their troops to host states through the United Nations in order to preserve International Peace and Security. In this sense, the TCCs has also had obligations toward such issues or violations committed by their troops, including assuring the accountability of the committed crimes or offences, and information sharing.
Toward the issue of crimes and offences committed by the UN peacekeepers from the Troop Contributing Countries (TCCs), the TCCs are now obliged to make sure to the United Nations that they execute their jurisdiction over such crimes and offences.[140] Importantly, the case of such crimes and offences must be referred to the appropriate authority who would be the national court of the specific UN personnel to make decision in accordance with their laws and relevant code of discipline. However, this has not been followed and implemented properly because the Troop Contributing Countries (TCCs) are unwilling or feel reluctant to prosecute their own national contingents who are supposed to operate under the Chapter VI of the UN charter, instead their own national contingents are turned out to be guilty of crimes or offences.[141] As a result, the UN peacekeepers who are guilty of crimes or offences were sent back to their home country, without being trialed by their own national court. For half of year, there has been a statistic to indicate that many cases from many different mission has been put into trials with the difficulties in investigations and actions (Table 2. The Allegation, Investigation and Actions from 2016 to 2017). Since the criminal accountability has always seen as one of the weakness of the UN Peacekeeping Operations, the criminal accountability of perpetrator must be ensured so that the United Nations can retain its good image and reputation.
Table 2: The Allegation, Investigation and Actions from 2016 to 2017
| Year | Month | Mission | Date of Incident | Personnel | Victim/ Number |
Allegation | Investigation | |
| Finding | Result | |||||||
| 2017 | January | UNMIL | January 2017 | Military | Adult/1 | Sexual Abuse | Pending | Pending |
| 2017 | January | MONUSCO | July 2016 | Military | Minor/1 | Sexual Abuse | Pending | Pending |
| 2016 | December | UNIFIL | Oct. -Nov. 2016 | Military | Adult/1 | Sexual Exploitation | Pending | Pending |
| 2016 | December | MONUSCO | August 2016 | Military | Adult/1 | Sexual Exploitation | Pending | Pending |
| 2016 | December | MONUSCO | December 2016 | Civilian Staff | Adult/4 | Sexual Exploitation | Pending | Pending |
| 2016 | November | MINUSCA | November 2016 | Military | Adult/1 | Sexual Abuse | Pending | Pending |
| 2016 | November | MINUSCA | September 2016 | Military | Adult/1 | Sexual Abuse | Insufficient evidence | Unsubstantiated |
| 2016 | November | MINUSCA | September 2016 | Military | Adult/1 | Sexual Exploitation | Pending | Pending |
| 2016 | November | MINUSCA | April-May 2016 | Military | Minor/2 | Sexual Abuse | Pending | Pending |
| 2016 | November | UNOCI | February- April 2016 | Military | Adult/1 | Sexual Exploitation | Pending | Pending |
| 2016 | October | MINUSCA | September 2016 | Military | Adult/1 | Sexual Exploitation | Pending | Pending |
| 2016 | October | UNOCI | Unknown | Military | Minor/1 | Sexual Abuse | Pending | Pending |
| 2016 | October | MINUSCA | September 2016 | Military | Adult/1 | Sexual Abuse | Pending | Pending |
| 2016 | October | MINUSCA | August 2016 | Military | Minor/1 | Sexual Abuse | Pending | Pending |
| 2016 | October | MONUSCO | April 2016 | Military | Adult/1 | Sexual Exploitation | Pending | Pending |
| 2016 | October | UNIOGBIS | August 2016 | Civilian Staff | Minor/1 | Sexual Abuse | Pending | Pending |
| 2016 | September | MINUSTAH | Unknown | Police | Minor/1 | Sexual Abuse | Pending | Pending |
| 2016 | September | MINUSCA | May 2016 | Military | Adult/1 | Sexual Abuse | Pending | Pending |
| 2016 | September | UNISFA | Unknown | Civilian Staff | Adult | Sexual Exploitation | Pending | Pending |
| 2016 | August | MINUSCA | November 2016 | Civilian Staff | Adult/1 | Sexual Exploitation | N/A | N/A |
| 2016 | August | UNOCI | Unspecified/ 2016 | Military | Minor/1 | Sexual Abuse | Pending | Pending |
| 2016 | August | MONUSCO | December 2015- July 2016 | Military | Adult/1 | Sexual Exploitation | Pending | Pending |
| 2016 | August | MONUSCO | April 2016 | Military | Adult/1 | Sexual Exploitation | Pending | Pending |
| 2016 | August | MINUSTAH | August 2016 | Military | Adult/2 | Sexual Exploitation | Transactional Sex | Substantiated |
| 2016 | July | MONUSCO | Unspecified/ 2016 | Military | Adult/1 | Sexual Exploitation | Pending | Pending |
| 2016 | July | MINUSCA | August 2015- March 2016 | Military | Adult/5 | Sexual Exploitation | Insufficient evidence | Unsubstantiated |
| 2016 | July | MINUSCA | Sept.-Oct. 2016 | Military | Adult/2 | Sexual Exploitation | Pending | Pending |
| 2016 | July | MINUSCA | February 2016 | Civilian Staff | Adult/1 | Sexual Exploitation | Pending | Pending |
| 2016 | July | UNOCI | January- April 2016 | Military | Adult/1 | Sexual Exploitation | Pending | Pending |
Source: Conduct in UN Field Missions (2016-2017), accessed on Feb. 3, 2017, last updated on April 2017.
Since the Troop Contributing Countries bear responsibility to investigate and prosecute the acts of Sexual Exploitation and Abuse (SEA) committed by the national contingents of the TCCs during the peacekeeping operations, the Troop Contributing Countries (TCCs) now are holding an obligation to report to the United Nations or notify the Secretary General of the United Nations concerning on the progress and the result of the investigation and prosecution of misconducts or crimes committed by the UN peacekeepers. However, it has been a lack of practice and implementation for the information sharing between the Troop Contributing Countries (TCCs) and the Secretary General of the United Nations. Among states that has been requested from the information sharing, not many of them have responded to such request for the information.[142] From the statistic below, it has been published only with the aggregated database, not mentioning the name of particular countries. Logically, by doing so, it could be understandable that the United Nations has relied on the contribution and supports from the Troop Contributing Countries. Thus, they rather not 
to mention those countries in particular name.
Source: Office of Internal Oversight Services (OIOS), May 15, 2015.
To sum up for this chapter, with the problem of Sexual Exploitation and Abuse (SEA), there has been the involvement from the UN peacekeepers greatly in committing such crime. Even though the UN personnel are holding their legal protection status, there has been potentially chance that the UN personnel would lose their legal protection and place under the International Humanitarian Law (IHL) because of their actions. During the UN peacekeeping operation, the UN personnel are placed under the code of conduct which its standards are specified by several documents such as the general principle of the UN peacekeepers, the Ten Rule Code of Conduct, the 2003 Bulletin of Special measure for protection from Sexual Exploitation and Abuse, and the Bulletin on the Observance by United Nations Forces of International Humanitarian Law. Relating to the problem of Sexual Exploitation and Abuse (SEA), the Troop Contributing Countries also have a responsibility to deal such problem, including Assuring the accountability of the committed crime and information sharing. Therefore, this chapter has shown the applicability of the International Humanitarian Law (IHL) to the UN peacekeeping operations.
CHAPTER FOUR: THE ISSUES AND KEY RESPONSE TO THE WOMEN PROTECTION DURING THE UN PEACEKEEPING OPERATIONS IN THE DEMOCRATIC REPUBLIC OF CONGO
True, it could be considered over a decade that the Great Lakes and the Democratic Republic of the Congo, in particular, has been seen as a home or a safe haven for many different numbers of armed groups, which leads to the cause of uncertainty, instability, and suffering to the local population. Due to such problems, the United Nations Security Council adopted the resolution 1279 in November 1999 creating the United Nations Organization Mission in the Democratic Republic of the Congo or MONUC after the Lusaka Ceasefire Agreement was signed in July 1999 by five regional countries such as Angola, Namibia, Rwanda, Uganda, and Zimbabwe.[143] With the remaining of uncertainty, instability and suffering to population, the United Nations Security Council (UNSC) in July 2010 developed and renamed the MONUC to the United Nations Organization Stabilization Mission in the Democratic Republic of the Congo (DRC) or MONUSCO in order to reflect the new phrase of problems and issues in the country.[144] The United Nations Organization Stabilization Mission in the Democratic Republic of the Congo (DRC) or MONUSCO will be discussed and explained in the next section of this chapter.
The UN Peacekeeping Operations in the Democratic Republic of the Congo (DRC) was named as the United Nations Organization Stabilization Mission in the Democratic Republic of the Congo or MONUSCO. Before getting to the know about the MONUSCO, it would be convenient to know about the root cause of the establishment of the United Nations Organization Stabilization Mission in the Democratic Republic of the Congo (MONUSCO). Behind the creation of the MONUSCO by the United Nations Security Council (UNSC), it was the reason of uncertainty, instability, and suffering to the local population, which was caused by the crisis and armed-conflict in the Democratic Republic of the Congo. This will be discussed and explained in the following section of the Chapter.
One of the countries in the Africa Continent, the Democratic Republic of the Congo has gone through a very long historical conflict, which the conflict or armed-conflict and its suffering to the local population are still remaining until this present day. The crisis has gotten attention by the aftermath of the Rwandan Genocide in 1994 because around 1.2 million Rwandese Hutus moved to the Kivu as the regions of the eastern Democratic Republic of the Congo after the genocide in Rwanda and the creation of new government. The Kivu regions in the eastern DRC was being made as the starting point of the conflict and the rebelling groups which led by Laurent Désiré Kabila against the President Mobutu Sese Seko.[145] The forces of Laurent Désiré Kabila in 1997, alongside the support from the Rwanda and Uganda, won over the city of Kinshasa and replaced the name of the city by the Democratic Republic of the Congo (DRC).[146] This event was known as the First Congo War. With the instability of the Democratic Republic of the Congo in early 1998, the government of the Laurent Désiré Kabila accused Rwanda in the room of exploiting minerals in DRC, which will be explained in the next section.
In an accusation of the exploitation over the minerals, the conflict had begun because the excessive value of minerals, such as copper, diamonds, cobalt, tantalum, gold and tin, was considered as one of the main driving force of the conflict in the DRC. With the inability of the government of Laurent Désiré Kabila, a tremendous amount of minerals had been exploited and exported to electronic companies around the world. Indeed, the occurred problem was not only the exploitation of minerals but also involved the raping of women in mining fields.[147] In response, such problems, the government of the Laurent Désiré Kabila, was supported by Angola, Namibia, Chad, and Zimbabwe, forced the rebel group (the Congolese Rally for Democracy or the Rassemblement Congolais pour la Democratie or RCD) supported by Rwanda and Uganda to get out of the country. The hostilities between the government of the Laurent Désiré Kabila and rebel movement of RCD in the eastern region of the DRC was occurring and lasting until July 1999 when the Lusaka Ceasefire Agreement was created.[148] This Lusaka Ceasefire Agreement, adopted in July 1999, was for the purpose of ending the hostilities between the government of the Laurent Désiré Kabila and rebel movement of RCD in the eastern region of the DRC. From the Lusaka Ceasefire Agreement, it mapped out the political dialogue between the government of Laurent Désiré Kabila and armed groups so that the conflict or hostilities came to an end, alongside with the agreement of withdrawal of foreign force from DRC.[149]
After signing the Lusaka Ceasefire Agreement in July 1999 by the five countries, the United Nations Security Council (UNSC) adopted the resolution 1279 in November 1999 and established the Operations namely the United Nations Mission in the Democratic Republic of the Congo (MONUC) as an initial plan for observing the ceasefire agreement and withdrawal of the foreign forces from the DRC.[150] With mission established by the UNSC, the MONUC was operated with the task of supervising and implementing the ceasefire agreement. Even with the effort of the ceasefire agreement, the violence and hostilities still occurred resulting from the continuing of the Second Congo war waging until 2003 peace accords was signed. Since the creation of the ceasefire agreement, the country was still in chaotic due to the reason that President Laurent Désiré Kabila was assassinated by a person from his security guard, and his son, Joseph Kabila, became president of the country. With the electoral assistance by the MONUC, the first free and fair election was held in July 2006, and Joseph Kabila, as the son of former President Laurent Désiré Kabila, became the first elected president of the Democratic Republic of the Congo in 2006. Unfortunately, this did not bring change to the country because approximately 6 million people in the country have been killed from the conflict-induce reasons.[151] At the same time, Human Rights abuse was occurred, including rape and wanton murder through the violation of armed groups and UN personnel. This has created a very terrible humanitarian crisis in the Democratic Republic of the Congo (DRC), and the conflict was occurred from the violence between Forces Armees de la Republique Democratique du Congo or FARDC (Armed Force of the DRC) and other rebel groups including the Democratic Forces for the Liberation of Rwanda (FDLR), Mai-Mai Sheka and M23, in which all of them will be discussed in the later section of this Chapter.
Even though the ceasefire agreement has been signed and MONUC was operated to observe over the implementation of the agreement, there was still a conflict within the DRC because of the presence of the Lord’s Resistance Army militia (LRA)[152] which is supported by the Ugandan in the eastern Congo caused tension between Uganda and DRC. Until September 2007, Agreement of cooperation to remove the LRA from Congo has been signed between Uganda and DRC. Besides the conflict between Congo and Uganda, there was also conflict within the country that the National Congress for the Defense of the People (CNDP)[153] used forces against the Armed Force of the DRC (FARDC) in the eastern part of the country in October 2008. In March 2009, the CNDP, as a former rebelling group of Laurent Nkunda, created a peace agreement with the government of DRC and reintegrated into (FARDC). A year after the peace agreement has been signed, the Security Council adopted a resolution 1925 in July 2010 to transform the previous mission (MONUC) into MONUSCO in order to reflect the new issue which could not be solved with the previous mandate.[154] This new mission was mandated to use all necessary means to fulfill the purpose of the operation, including the protection of civilian, Humanitarian and Human rights protection which are under the imminent threat relating to physical violence, especially to aid the government of the DRC in order to stabilize peace and security.[155] In 2012, the CNDP complained about the non-practicing of the agreement which reintegrates into FARDC, and then CNDP formed a new rebelling group which is called the M23 (The March 23 Movement) led by Ntaganda. Behind the M23, it had been accused that the movement has been supported by the Rwanda Government, including recruiting and training soldier fighting for the movement, and the support of M23 crossing border into the territory.[156] In November 2012, the M23 won over the city of Goma by using force, which is located in the Kivu province. Up until November 2013, the M23 was defeated by the Congolese Armed Force, with the military support of UN Brigade force. The UN Intervention Brigade was operated in response to the security of the DRC and under the Humanitarian reason. Next section will explained about the military intervention and the UN Intervention Brigade.[157]
After the tragic event occurred in the Rwanda and the Balkans in the 1990s, the International Community started to take the issue of violation of human rights seriously. In response to that, the International Commission on Intervention and State Sovereignty (ICSS)’s report included and presented the idea of responsibility to protect (R2P) which was presented in 2001 by the government of Canada.[158] Based on the report of the International Commission on Intervention and State Sovereignty, the sovereignty of a state is given not only to control its own affair, but as well as grants responsibility to that state to protect its population within the borders too.[159] The principle of Responsibility to Protect (R2P) is the principle arming to protect the population from the Human rights violation or International Crimes such as ethnic cleansing, Crime against Humanity, War Crime, and Genocide.[160] With the principle, there are three key points or components of the R2P. Firstly, as mentioned above, a state has borne a responsibility to protect its own population from the crime of Genocide, ethnic cleansing, Crime against Humanity, and War Crime.[161] Secondly, at the same time, the International Community has also borne a responsibility to help states in fulfilling their responsibility to protect (R2P).[162] Lastly, in any case, if a state lack of ability or lack of willingness to protect its own population, that responsibility would likely shift to the International Community to carry out collective actions and responsibility which it could be the use of force as a last resort.[163] In the fifty nine session of the General Assembly (UNGA) in 2004, the Kofi Annan, UN Secretary General, approved the presented idea of Responsibility to Protect (R2P) which is set up by the Government of Canada.[164] Under the fifty nine session regarding the High Level Panel on the Threats, Challenge and Change in 2004, the collective International responsibility has been included and introduced that it could be exercised by the Security Council (UNSC) to authorize the military intervention as the last resort of the use of force. This military intervention could be exercised within any events such as Genocide or mass-killing, ethnic cleansing and serious violation of the International Humanitarian Law (IHL) that the legitimated government is in the weak condition and unwilling to prevent.[165]
As the Principle of the Responsibility to Protect (R2P) has been discussed above, it could be noticed that the International Community has also played a very significant role in securing the International Peace and Security in any case that a state failed to fulfill their responsibility to protect. Toward the maintenance of the international peace and security, the international community has borne the collective international responsibility which sometimes to use the military to intervene in a state in order to secure the international peace and security. This intervention from the international community is also known as the collective intervention.[166] Relating to this matter, the United Nations Security Council represents the international community and is the authorizing actor over the decision to the military intervention in accordance with the UN charter.[167] There are example of the forceful invention decided and authorized by the United Nations Security Council (UNSC), such as the intervention during 1990s in several countries like Somalia, Haiti, East Timor, Iraq, and Bosnia. For the further practice of the R2P and Military Intervention, the Security Council officially refer to the principle of Responsibility to Protect (R2P) in April 2006, and adopted resolution 1674 concerning the protection of civilian in the armed-conflict.[168] With the later resolution 1706, the Security Council deployed the UN peacekeeping troops to Darfur.[169] There are many different form of Military Intervention, which one of them is the military intervention as means to an ends of the Humanitarian Crisis or for the reason of Humanitarian purpose.[170]
As discussed above, the Military Intervention can be used as a means to bring an end for the Humanitarian Crisis or as under the humanitarian ground. In addition to that, the Humanitarian Intervention can be used and referred to two different circumstances. Traditionally, the term Humanitarian Intervention could be understood as an interventionary response by the outsider or other state to eliminate the suffering and assist the host state to improve the damage after a natural disaster occurred. Even though the military could be sent, the function does not specific to military which is similar to the international agencies and Non-Governmental Organizations (NGOs) providing the humanitarian needs improving the negative impact of the natural disaster and for the local population who suffer from the natural disaster.[171] With another circumstance, the term Humanitarian Intervention in this sense rather consider as recent notion. This Humanitarian Intervention is referred to the measure which is used by the outsider in order to react to crises such a situation of serious violation of basic human rights or of the International Humanitarian Law (IHL).[172] Additionally, such measure would be taken in order to protect the affected populace, to eliminate such violations, and even sometimes punish the wrongdoer for such violation.[173] With this kind of Humanitarian Intervention, its means would be in a range of the use of military force as a further preference, even though the original mandate is for the economic, political, or legal aspects.[174] Particularly, in accordance with the UN Charter, and the international practice, the Humanitarian Intervention could be only operated when the United Nations Security Council authorized under the Chapter VII.[175] Robust peacekeeping and Peace Enforcement in the Democratic Republic of the Congo (DRC) is the best example.
As discussed above about the remaining conflict in the eastern part of the DRC, even the United Nations Organization Stabilization Mission in the Democratic Republic of the Congo (MONUSCO) has been established. Many issues was still seen to be obstacles for the MONUSCO, including the reemergence of the conflict in the eastern region, a very long time of humanitarian crises and serious violation of the Human rights such as Sexual Exploitation and Abuse (SEA) and Gender-based violence. With the reason that the United Nations Security Council (UNSC) in March 2013 noticed about the lack of the progress on the MONUSCO in the DRC, the Security Council unanimously adopted and established the first overtly offensive force which is known as the Intervention Brigade through the resolution 2098.[176] This Intervention Brigade, an offensive force, is the operation that use the military force to fulfill the mandate, and is formed under the part of the United Nations Organization Stabilization Mission in the Democratic Republic of the Congo (MONUSCO).[177] As mentioned above the captive city Goma by the M23, the Security Council did not stand still over such problem. The Intervention Brigade was established under the mandate of carrying out the offensive operation, with the highly mobile and flexible manner to neutralize the armed-groups and to protect the civilian within the country.[178] From the effort of the Intervention Brigade, the United Nations Security Council (UNSC) put pressure on the M23 for the ground of seizure of Goma City. In this sense, the M23 has come to the decision to negotiate with the Government of the DRC over the withdrawal of the force, but it was lack of implementation later on. After the fall of 2013, the FARDC and the M23 has another clash and surrender to the FARDC because the FARDC had a strong offensive with the support of the UN sanctioned Force Intervention Brigade (FIB). With the surrender of the M23, the Intervention Brigade in MONUSCO has attract large attention from its success because the Intervention Brigade has operated with the modern and high-tech equipment such helicopter, long-distance artillery, Special Force, Sniper, and Drones. With such equipment, the Intervention Brigade has been able to carry out the mandate that the MONUSCO was not be able to perform.[179] Even with the surrender of the M23 and peace deal came into place, it does not end the conflict in the DRC because the FARDC was only on the primarily focus of eliminating the M23. As a result, the other rebel groups such as FDLR and Mai Mai Sheka did not receive any pressure from the FARDC, and were be able to regroup and reinforce their initiatives.[180]
As being discussed above about the MONUSCO and the Intervention Brigade, both of them has been operated in the Democratic Republic of the Congo for the purpose of maintaining the International Peace and Security. Concerning on the conduct of the MONUSCO and Intervention Brigade’s activities, there is a main legal framework that is applicable, which is the International Humanitarian Law (IHL). While some may argue that the IHL should not be applicable because the United Nations is not a party to the related treaties of IHL, the organization and peacekeeper may complies with some rules of the International Humanitarian Law (IHL) for the force under the UN Peacekeeping Operations.[181] By saying so, there is a key question to ask whether there is the existence of the armed-conflict within the Democratic Republic of the Congo (DRC) which will be discussed and explained in the following section.
As questioned over the applicability of the IHL to the MONUSCO and the Intervention Brigade, there is a potential applicability of the International Humanitarian Law (IHL) to the operations by determining the existence of the armed-conflict in the DRC. It could be considered as an armed-conflict when the hostilities between the conflicting parties has gotten to a minimum intensity level.[182] From my own perspective, owning the nature of the tension in the eastern part of the DRC, there is no doubt to say that the conflict reached the minimum intensity level, even during the time that the Intervention Brigade has been operated. To illustrate the existence of the armed-conflict in the DRC, the following section will describe and discuss about the Active Armed Groups in the DRC
The existence of the armed groups within the DRC is driving force of the instability within the country. Particularly, their presence could be seen as the main source of the armed-conflict within the Democratic Republic of the Congo (DRC). This section will describe and discuss about the active armed-groups in the DRC such as the Democratic Forces of the Liberation of Rwanda (FDLR), the Lord’s Resistance Army or known as LRA, the allied Democratic Force which is also called ADF, the National Congress for the Defense of the People (CNDP), last but not least the Mai-Mai Militia.
Since 1990s, the eastern Congo has been seen as a safe haven for the former Rwanda armed-forces and the interhamwe militia. These armed groups set up their attacks inside the Rwanda and attacked the civilian of the DRC. These armed-group integrated into a group which is now known as the Democratic Forces for the Liberation of Rwanda (FDLR). Particularly, this FDLR launched the recruitment campaign for the conflict. From April 2012 to May 2013, the FDLR involved in the death of 314 civilian in their different attacks.[183] Even though, the FDLR is weaken due to the reason that a leader of the FDLR namely Callixte Mbarushimana has been caught by the French Security in 2010, the FDLR has always been considered as an important main actor in the conflict in the DRC.[184]
The LRA is a Uganda rebel group which is led by the Joseph Kony, and always seek for the recruitment of child to be a soldier for the group. The LRA launched its military actions in several countries such as Northern Uganda, the Democratic Republic of the Congo, the Central African Republic (CAR), and in the Southern part of Sudan.[185] The Main target of this rebelling group is on the civilian population, particularly toward the Children and Women. In 2009, the Soldier of the LDR involved the killing of 300 civilian and kidnapped around 250 people just for 4 days alone in Makombo locating in the Northeastern of the DRC.[186] Though many fights and defection, the LDR is weakened and lost numerous of its leaders, but the LDR is still one of the main source of the conflict in the Congo.
The Allied Democratic Force (ADF) has existed since the middle of the 1990s, and this rebelling group is also known as the Uganda Muslim rebelling group. With the connection with the terrorist group of Al-Qaeda and Al-Shabaab, the ADF even had kidnapped the Congolese Civilian.[187] In 2010, the ADF was trying to create Shari’a Law in Uganda, the government of the Congo consulted with the government of Uganda, and launched military actions against the ADF to get rid the ADF out of the Country.[188] However, the military actions also make approximately 100,000 Congolese flee to neighboring countries. Only from 1 October to 31 December 2014, the ADF launched its attacks on the 35 villages, with at least 237 death of civilian.[189]
The National Congress for the Defense of the People (CNDP) is the rebelling group in the DRC led by the Laurent Nkunda, and its main purpose was to protect the Tutsi people who stay in the eastern Congo and attacked against the FDLR. After consultation between the government of the Congo and Rwanda, both of the countries launched a joint military force in 2009. The CNDP thus is no longer seen as a rebelling group, but many of them reintegrated into the Congolese Armed Force which is known as the FARDC.[190]
The Mai Mai is the unified and inconsistently group of the Congo militia, with many different political demands over the DRC. This group has always been considered as one of the dangerous rebelling group due to its main targets. The main target of the Mai Mai Militia is not to attack the civilian only, but also the UN Peacekeeping Personnel. With the tragic event occurring during July to August 2010, the mass rape was occurring on more than 240 women in the Eastern Congo, committed by the Mai-Mai rebelling group and the FDLR.[191] Outrageously, the crimes had happened nearby the United Nations Peacekeeping’s base, but the MONUSCO could not protect the affected populace. Later in October 2010, the government of the Congo cooperating with the UN Peacekeeping troops in the eastern Congo successfully caught the leader of a Mai Mai Militia.
To sum up for this point, owing to nature and extent of each armed groups that have mentioned above, there is without serious question to ask about the existence of the armed-conflict, especially to ask about reaching minimum intensity level. Thus, there is an existence of the Armed-conflict within the Democratic Republic of the Congo (DRC). Even it could be proved over the existence of the armed-conflict, the scope of the application of the IHL is still limited by the categories of the armed conflicted, including IAC and NIAC. In short for the International Armed-Conflict (IAC), it is the concerning conflict between countries. In addition to that, there is no certain definition of the Non-International Armed-Conflict (NIAC), but it has been stated under the common Article 3 of the 1949 Geneva Convention that it is the conflict that is not an international character but happens within a single country.[192] The Armed-conflict could be involved by armed groups, such as armed forces from the government and the non-governmental armed forces (like rebel groups or movement against the government). As the case of conflict occurring in the DRC, the conflict could be considered as the Non-International Armed-Conflict (NIAC) because there have been fights between the government and the non-state armed groups. However, from my own perspective over the conflict occurring in the DRC, the conflict is more likely about the International Armed-Conflict (IAC) because there has been an involvement from the multinational armed force as we look deeper into the complicated situation of the conflict in the eastern DRC. There have been many different non-state armed groups fighting with the government of the DRC, but some of them have been supported by the neighboring states. The March 23 Movement (M23) has been fighting with the government. In addition to that, this M23 rebels has been supported by the government of Rwanda by granting military assistance to this rebel movement, including armed force support, military communication, treatment by Kanombe military hospital, and military armed supplies.[193]
After the applicability of the IHL in the Democratic Republic of the Congo could be seen through the existence of the Armed-Conflict, it is also a must to analyze the application of the IHL to the MONUSCO because the crimes during the armed-conflicted within the Democratic Republic of the Congo (DRC) could be committed by not only the armed-groups as mentioned above, but also the UN peacekeeping personnel as well. Then, there is a question to ask whether the missions operated in the DRC is considered a party to the armed-conflict. As we can notice that the missions that operated in the Democratic Republic of the Congo (DRC) are the MONUSCO and the Intervention Brigade operating within the framework of the MONUSCO, if the activities of the MONUSCO or Intervention Brigade constitute the mission to be a party of the conflict, there is another question to ask whether only MONUSCO is considered to be a party of the armed-conflict or only the Intervention Brigade is considered to be a party of the armed-conflict. In any case that the MONUSCO itself as a whole is considered to be a party of the armed-conflict, then not only the intervention brigade but also all military member of the MONUSCO and its properties would be place under the application of the International Humanitarian Law (IHL). To illustrate the above questions, we must look at the connection or relation between the MONUSCO and the International Brigade.
In connection with the MONUSCO, as mentioned above that the Intervention Brigade was established under the umbrella of the MONUSCO. In this sense, we have to analyze and examine over the qualification of the Intervention Brigade to be a party of the conflict first, and then to see whether the Intervention Brigade alone as a party of the conflict or the MONUSCO as a whole mission. From scratch, concerning with the Intervention Brigade, the Secretariat of the United Nations had never acknowledged that the United Nations Peacekeepers would not be considered as a party to the conflict in which they were involved. For instance, even the armed forces of the UN operation in the Congo (ONUC in 1960-1963) involved in the significant intensity level, they were not considered as a party to the conflict, but rather considered as a world policeman.[194] On the other hand, the International Law Commission Legal Counsel, Ms. Patricia O’Brien, foreshadowed that the MONUSCO would become a party to the conflict and as a subject of the International Humanitarian Law when the members of the operation have engaged directly in the hostilities.
According to the 1999 Secretary General’s Bulletin on Observance by United Nations Forces of International Humanitarian Law, it can be argued that the MONUSCO and the Intervention Brigade would be considered as a party to the conflict in the DRC under the following two grounds. Regarding the first ground, this could be argued that the MONUSCO can be considered a party to the armed conflict even before the establishment of the Intervention Brigade because the MONUSCO had taken offensive action and engaged in the hostilities[195] for two-time which one of them were set up in early 2006 to prevent possible spoiler in the election of the Congo and another one were set up in 2012 to support the Congolese Government against the M23. In a sense, the MONUSCO would become a party the conflict due to its offensive actions and engagements into the hostilities. Concerning on the second ground, the Intervention Brigade would also be considered a party to the armed conflict as well because of its obvious combat mandate. According to the section 1 of the Bulletin, the present rule in the bulletin is applicable to the enforcement actions operations.[196] The mandate of the Intervention Brigade has already made it clear that its purpose of the mission is to use the offensive force, which reflects its operation as an enforcement actions operations. Under the light of its combat mandate, it is no doubt that the Intervention Brigade is considered to be a party to the armed conflict. From the first time, the MONUSCO’s mandate was to protect the civilian and provide stabilization and peace consolidation and was deployed as traditional peacekeeping operations.[197] However, later with the establishment of the Intervention Brigade, the MONUSCO shifted from the traditional UN peacekeeping (using the basic principle of consent, impartiality, and none use of force except in self-defense) to the enforcement action operations which would be placed under the application of the International Humanitarian Law (IHL). To sum up for this point, not just the Intervention Brigade alone but the MONUSCO as a whole is considered as a party to the armed-conflict. Plus, all the military members of this mission will lose their protected status which is provided by the International Law such as IHL and the Convention on the Safety of United Nations and Associated Personnel. Their loss of protected status will be explained in the next section of this chapter.
As mentioned in the Chapter 3 of this dissertation, the UN peacekeepers normally enjoy the civilian status as their legal protection status. However, their protected status are not absolute. Once the MONUSCO and Intervention Brigade as the party to the armed conflict, not only the missions fall under the International Humanitarian Law but also the legal status of the UN peacekeepers of the MONUSCO and Intervention Brigade has been changed and affected as well under the International Humanitarian Law.
Both UN peacekeepers coming from the MONUSCO and the Intervention Brigade are considered as a combatant. Starting with the MONUSCO, the MONUSCO used to take offensive action and engaged into the hostilities twice in which one of them were set up in the early 2006 to prevent possible spoiler in the election of the Congo and another one were set up in 2012 to support the Congolese Government against the M23.[198] According to the Article 4 of the third Geneva Convention, with the offensive action and the engagement into the hostilities[199], the UN peacekeepers who used to enjoy the civilian status lose their legal protection which they are regulated and obey rules of the International Humanitarian Law. Concerning with the legal protection of the UN peacekeepers of the Intervention Brigade, since the establishment of the Intervention Brigade as a part of the MONUSCO, this Brigade has always been considered as a party to the armed-conflict due to its mandate. According to the section 1 of the bulletin, the provision applies to the peace enforcement operations or in a circumstance that the United Nations forces are sent as combatants.[200] As the mandate showing the combating role of the operation, all military member of this Intervention Brigade is considered as combatant. A evidence proved by the speech from the Force Commander namely General Carlos Alberto dos Santos of this operation, “We are going to protect the civilian, eliminate and neutralize the treats […] We are not going to wait for the threat to come here against the civilians”[201]
To conclude this point, the legal status of peacekeepers under the MONUSCO and the Intervention Brigade are considered as combatants. As combatants’ status, they would be placed under the International Humanitarian Law and have to follow the rules and principles of the International Humanitarian Law.
With the intensity of the armed-conflict, it causes tension in the eastern DRC which are the UN peacekeepers are also being sent there. Besides, the armed-groups in the eastern DRC have been involving into the Human rights abuse which were the Sexual violence, the UN peacekeepers are mandated and deployed in order to protect the civilian. However, during the operation, the UN peacekeepers has also turn out to be a perpetrator who commit the Sexual Exploitation and Abuse over the local population.
In 2004, the crimes committed by the UN peacekeepers has been surfaced and have been investigated due to the report of the media. The International Media had released its report in the early 2004 about the Sexual Exploitation and Abuse on the young Congolese girls and Women which were committed by the UN peacekeepers during the United Nations Organization Mission in the Democratic Republic of the Congo (MONUC). This report release by the international media has been considered as a starting point over the investigating of the Sexual Exploitation and Abuse (SEA) because it caused the outcry from the International Community which pressure the United Nations to start over this problem.[202] Then, the United Nations Office of Oversight Services (OIOS) start to their task to investigate over the problem of the Sexual Exploitation and Abuse (SEA). With the result of the investigation over the problem of Sexual Exploitation and Abuse, the United Nations office of Oversight Service (OIOS) found that there are many serious problems of the Sexual Exploitation and Abuse during the United Nations Organization Mission in the Democratic Republic of the Congo (MONUC) which are committed by the UN peacekeepers of the mission itself. With the annual report in 2004, the Secretary General of the United Nations found and included into the report about the number of the allegation, which is in total of 121 allegations. Within these allegations, around 45 percent of the case were involving the sexual intercourse between the UN peacekeepers and minors, and over 31 percent were involving the prostitution with the adult women in the DRC.[203] In 2005, the Secretary General made another report which conclude around 340 cases of Sexual Exploitation and Abuse, and the allegations of the SEA surprisingly increased comparing to the number of the cases of SEA in 2004.[204] Unfortunately, the number of the allegation of the Sexual Exploitation and Abuse was still increased in the report of the Secretary General in 2006, which is in total of 357 cases. As it can be seen that the accumulated allegations were come from the United Nations Organization Mission in the Democratic Republic of the Congo (MONUC), according to the conduct in UN field mission, there has been a recent update on the statistic of allegations of the Sexual Exploitation and Abuse (SEA) from 2010 to 2017 (Refer to Table 4).
Source: Conduct in UN Field Missions, 2017.[205]
To have a deeper understanding over the case of Sexual Exploitation and Abuse (SEA) which were not substantiated by the Troop Contributing Countries (TCCs) due to the various difficulties like accessing information, lack of investigation or insufficient evidence, there are the following 3 case studies taking from the MONUC and the MONUSCO which is needed to be considered as a lesson learnt for the future solution.
The girl, who was coded as V046A, were just only 14 years old, but already were the victim of the Sexual Exploitation and Abuse. She could not afford to go to the school because she were poor. Once the United Nations Office of Oversight Services (OIOS) started the investigation over the problem of the Sexual Exploitation and abuse, she told to the OIOS about her sexual relations with a soldier (PK1) coming from the MONUC. Every time, they had had the sexual intercourse together, she got 1$ or 2$ USD Dollar or two eggs in return. This problem not only the girl and the soldier, but also two witnesses which one of them involved in this crime by introducing the girl to the soldier and got the bread in return, and another one involved in the crime by arranging time for soldier to meet with the girl for sex. With the help of victim and two witnesses, OIOS were be able to investigate the soldier through the Ituri Brigade Military Police Commander, and found the identity of the soldier. However, the investigators of OIOS could not operate the interview because the soldier was already sent back to his own country.[206] Thus, the case was left with the impunity.
The victim of this case was coded as VO46A and the witnesses, WO46B. This case is similar to the case above that the soldier of the MONUC committed a crime of Sexual Exploitation and Abuse, with the help from people who later became witnesses. Being introduced by the witnesses, the victim had had sexual intercourse with the soldier and got 3$ USD Dollar and a package of milk in return. By helping the soldier, the witnesses got bread and jam in return. The victim told the OIOS for the investigation, and the victim and witnesses help the investigators to identify the soldier through the photo lists and roll calls with physical line-up. However, it was denied by the soldier.[207]
From the previous case, the soldier was coming from the MONUC, but the case was soldier who came from the MONUSCO committing the crime of Sexual Exploitation and Abuse. The victims of was 16 years old and told to the OIOS Investigator about her story. From October to December 20015, she had had sexual intercourse with a UN Peacekeeper from the Republic of the Congo in exchanging for the food and money to support her family. Soldiers started the sexual relation with her at the time she was going to the UN peacekeeping base in order to sell the alcohol. In return for the sexual intercourse with the peacekeeper, she got foods or around 1.60$ USD. Because the eastern DRC was in chaotic and the girl had got a poor family and a member with disability, she had got no choice but to exchange sex for foods and money.[208]
True, Sexual Exploitation and Abuse will always result in serious consequence on victims. However, the shocking thing in this problem is that the UN peacekeepers who are supposed to be the protectors turn out to be perpetrators. The people in the host country like the DRC entrust the UN peacekeepers with their greatest hope, but the UN peacekeepers failed to meet the people’s expectation and ruined their trust by committing Sexual Exploitation and Abuse which may affect both physical and mental or psychological states of the victims.
From the Sexual Exploitation and Abuse, it would cause victims with the physical impact. Especially the sexual abuse would obviously hurt and cause pain to the victims, including scars on the body depending on the brutality of the perpetrator, infertility (the women may not be able to have child in the future), Unintended Pregnancies, and high rate of infecting a transmitted diseases or illness through sex like HIV. One of the best example is the UN operation known as UNTAC which left many women infected with the HIV after the operation finished.[209] The points that have been mentioned above can be considered as a short term impact. However, there is also long term impact on the victims. Since the health care in the country like DRC is far behind from advanced, women are more likely to suffer much from the insufficient health condition and untreated wound, especially women with unintended pregnancies facing the illegal abortion. Even if the women with unintended pregnancies struggled to keep the babies, the women would more likely turn to be a prostitution so that they feed themselves and their babies. Last but not least, women infected by HIV disease would have carry it for the rest of their life. Importantly, since the health care condition or circumstance in such countries are not advanced and developed, they might not know that they are infected by the HIV disease, and by any chance to infect to their others, especially to their family such as husbands and the child in the womb.[210]
After suffering from the Sexual Exploitation and Abuse, the victims would definitely be affected to their mental state in short time and long time, including feeling shame and fear, guilty, worthless, and culpability. Especially with the act of sexual abuse, the victims would suffer from the brutal act which affect their mental state and feel fear and shock of things around them. Sometimes, the victims also feel fear because they are sometime threatened by the peacekeepers to not say anything.[211] For long term impact of the victims’ psychologies, they may feel traumatized from the brutal act which may develop to mental disorder. The most thing impact on the victims in long term is that the victims will be left with the stigmatization in their society and sometimes rejected by their family or community. They might even be forced to get out of the house, living socially isolated. With the isolation from the family, community, and society, the victims without any choice forced themselves to engage in the further sexual activities with the peacekeepers in order to survive. This would go the same to the child born between the victims and peacekeepers, they will be left with stigmatization, and rejected by the community.[212]
Being discussed above over the problem of the Sexual Exploitation and Abuse (SEA), the UN peacekeepers act out of their duty and commit misconduct from their discipline by having sexual intercourse and relation with the women and minor in the host country. From the Sexual Exploitation and Abuse, it causes the victims facing the unwanted pregnancies and unsafe abortion. It happened even more frequently in the country like the Democratic Republic of the Congo where abortion is illegal and not allow to do so by the domestic law.[213] There are many cases of Sexual Exploitation and Abuse that left many women pregnancies in the DRC, which one of them happened in February 2011. There are two victims, namely Gisele 14 years old and Esperance 15 years old. They were attacked by five soldier of the MONUSCO, without having discipline. This constitute a violation of the section 3 of the Secretary General’s Bulletin.[214] Two of them were raped by the white MONUSCO soldier. As a result, the victims were very bad injured and left with pregnancies. In October 2011, Esperance gave birth to a child of Peacekeeper who did not know the identity of the father. All the soldier committing the crime returned to their home country leaving no support and no trace, with complete impunity.[215]
The Problem of the Sexual Exploitation and Abuse has been a serious violation of the International Humanitarian Law and International Human Rights Law for decades, and such problem is still remaining. The UN peacekeepers are contributed by their own countries to the United Nations and sent to the host state like the Democratic Republic of the Congo in order to fulfill their operation through the Model Status of Force Agreement (SOFA) between the United Nations and the Democratic Republic of the Congo (DRC).[216] On the other hand, the substantive challenge lie on the Model Status of Force Agreement between the Democratic Republic of the Congo and the United Nations itself. According to the Model United Nations Status of Force Agreement, the Troop-Contributing Countries (TCCs) have borne a responsibility over the discipline and criminal sanction on their military force who has been sent to the host state. This has been state in the Paragraph 47 (b) of the Model UN of Force Agreement saying:
“[…] (b) Military members of the military component of the United Nations peace-keeping operation shall be subject to the exclusive jurisdiction of their respective participating states in respect of any criminal offences which may be committed by them in [host country/territory]”[217]
In this provision, for any crime which is committed by the peacekeeper, the respective countries of the peacekeepers have the right and jurisdiction over the cases that happened in the host country, and decided upon the cases. At the time that the allegations of Sexual Exploitation and Abuse have been found, the United Nations would make a repatriation of the perpetrator. Holding trials for the perpetrators is practically difficult because of the willingness of the Troop-Contributing Countries (TCCs), gaps and loopholes between the model UN Status of Force Agreement (SOFA) and local laws because local laws are sometimes not allow for the extraterritorial prosecution, and the accessing information or evidence from the host state which is considered as another challenge for the women protection. As a result, due to these difficulties, the Troop-Contributing Countries could not exercise and punish the perpetrators of their crime, the outcome of most of the cases which have been referred to the Troop Contributing Countries remain pending, unsubstantiated, and insufficient evidence, with complete impunity.
The successful investigation and prosecution on the suspect of Sexual Exploitation and Abuse requires well-documented evidence through the witnesses and victims who experience traumatization. However, most of the cases of Sexual Exploitation and Abuse (SEA) are not well-recorded and documented because of the underreporting of SEA which has been considered as a significant challenge. Based upon the case studies above and a study by a 2008 HAP International Study, there are several factors contributing to the underreporting of SEA, including:
- Exchange sex for food and money to survive is the only choice for people in a country like DRC. Thus they would not speak or report about the SEA which might lose the assistance provided by the perpetrators,
- Because of the fear of stigmatization, they would not report because they fear of being rejected and isolated from their society,
- Losing dowry before marriage, young girls’ families would choose to hide and refuse to give the evidence of SEA[218],
- Because of the threat of retaliation from perpetrator, the victims chose not to report or speak out,
- In a country like DRC, people rarely get education and awareness of reporting mechanism. Thus, they could not report the allegation of SEA,[219]
- They feel powerless to report to the authorities which would properly not believe what they speak,[220]
- A Chronic lack of faith: sometimes they made the report, but they did not receive any response to the allegation of the SEA.[221]
With these contributing factor above, the evidence has not been well-recorded and documented which lead to the insufficient investigation. As has been mentioned above, when the UN peacekeepers are alleged of the Sexual Exploitation and Abuse, they would be sent back to their own country for the discipline and criminal sanction. However, the respective countries would help from the Host state for the evidence or recorded so that the trial could be held. In most of the case, the Host State could not hold the trial because of lack of evidence and insufficient investigation before the trial.[222]
Sexual Exploitation and Abuse violates International legal norm and standards, and such acts or violations is considered as unacceptable and forbidden for all staff of the United Nations.[223] In response to the problem of Sexual Exploitation and Abuse (SEA), the United Nations in 2003 introduced and outlined a zero-tolerance policy. However, it has always been failed to implement as increasing allegations of SEA in the Democratic Republic of the Congo (DRC) to be an example. As it can be noticed that the difficulty in implementing the zero-tolerance policy is because the military personnel of the United Nations also have and are under their own legal instrument. The military personnel of the United Nations is under the Convention on the Privileges and Immunities of the United Nations, which they are “immune from legal process in respect of words spoken or written and all acts performed by them in their official capacity.” They can be prosecuted or accounted for criminal responsibility as well, but only if there are a proper investigation and sufficient evidence of the allegation of the SEA.[224] As a result, this leaves two problems, including the referral to cases to the national authorities of the peacekeepers and the insufficient evidence because most of cases are not really well-recorded and documented in which two of them have already discussed in the previous sections. Eventually, the perpetrators will still avoid from punishment, with complete impunity.
As discussed in the previous sections, horrific human rights abuse like Sexual Exploitation and Abuse has continually occurred in the Democratic Republic of the Congo. The International Media had pressured the United Nations and International Community to pay more attention to the problem of Sexual Exploitation and Abuse (SEA).
The United Nations also gave attention to the problem of Sexual Exploitation and Abuse. A zero-tolerance policy was introduced and outlined in the bulletin regulating all the UN personnel. Even with the zero-tolerance policy in 2003, the cases of the Sexual Exploitation and Abuse (SEA) by the peacekeepers still occurred even with the larger amount of allegations in the Democratic Republic of the Congo (DRC). With many cases of the Sexual Exploitation and Abuse occurred, it was a problem that most of the cases could not be proved. Thus, it led the problem to the UN Secretary-General, and later the UNSG issued the 2003 bulletin on the Special Measure for the Protection from Sexual Exploitation and Abuse (SEA).[225] According to the Special Measure for the Protection from Sexual Exploitation and Abuse, it takes the Sexual Exploitation and Abuse into account as the serious misconduct and could fall into the disciplinary sanction, especially set the specific standards or code of conducts over the existing obligation of the UN officials concerning the Sexual Exploitation and Abuse (SEA) as following:[226]
- Any acts of Sexual Exploitation and Abuse are forbidden and constitute as a serious misconduct which may lead to the disciplinary sanction resulting in immediate dismissal and repatriate to their home countries.
- Any sexual intercourse with the children or minor under the age of 18 are prohibited
- Any Sexual Activity to exchange for the humanitarian assistance[227] is prohibited,
- Any Sexual relations between the peacekeepers and beneficiaries would put the UN in the power and position abuse, and would result in ruining the integrity and credibility of the United Nations,
- Other members of United Nations must report the one who is suspected to be part of the Sexual Exploitation and Abuse.
Based on numerous reports in 2004, there were 150 allegations of sexual assault by UN peacekeepers from the United Nations Organization Mission in the Democratic Republic of the Congo (MONUC), with sixty-eight cases of rape and prostitution.[228] From most of the alleged cases above, the involving peacekeepers were likely coming from Pakistan, Uruguay, Morocco, Tunisia, South Africa and Nepal. The numerous cases of Sexual Exploitation and Abuse (SEA) were still occurred because of the ineffectiveness of the zero-tolerance policy. The difficulty in implementing the policy is that the allegations of Sexual Exploitation and Abuse were being interfered by the suspect’s colleague (others peacekeepers) with the investigation by paying the witnesses to modify their testimony, threatening investigators, and refusing to identify the offenders.[229] In 2005, the United Nations conducted another investigation on the problem of Sexual Exploitation and Abuse which was headed by the special advisor on Sexual Exploitation and Abuse and the permanent representative from Jordan to the UNSC, namely Prince Zeid Ra’ad Zeid Hussein. This investigation led to the release of the first comprehensive analysis of the cases of SEA, namely Comprehensive review of the whole question of peacekeeping operations in all their aspects.[230] This comprehensive review found the problem of Sexual Exploitation and Abuse (SEA) which the peacekeepers engaged in the sexual intercourse with women and children as young as ten years old in exchanging for a cup of milk, several eggs, and money. The victims have sometimes received the money from the peacekeepers to change the circumstance from being raped into consensual.[231] The United Nations has always been working on the problem of Sexual Exploitation and Abuse by taking actions through the annual report. With the recent development of the problem of Sexual Exploitation and Abuse (SEA), the Secretary General Ban Ki moon include in the annual report in 2016 about the reformation of the accountability for the SEA by peacekeepers.[232] Importantly, on February 2017, the Secretary General Ban Ki Moon set out the new approach in dealing with the problem of SEA into four main aspects, including the victims as a first priority, stop the impunity, involving the civil society and partners from outside, and enhancing the communication for education and transparency.[233] With those efforts of the United Nations, the problem of Sexual Exploitation and Abuse has been reduced a lot, yet still remaining. However, the main problem is about the accountability of the perpetrators for the crime of Sexual Exploitation and Abuse because there has been many cases of the Sexual Exploitation and Abuse left forgotten, with complete impunity.
Overall, this chapter of this dissertation has discussed and analyzed the issue and key response to the women protection during the UN peacekeeping operations in the Democratic Republic of the Congo (DRC). By discussing and analyzing, it has been categorized into 4 main points, including the UN peacekeeping operations in the Democratic Republic of the Congo (DRC), the applicability of the International Humanitarian Law (IHL) to the MONUSCO and Intervention Brigade, the challenges to the women protection in the DRC, and the International Response to the Sexual Exploitation and Abuse (SEA). With the peacekeeping operations in the Democratic Republic of the Congo (DRC), the MONUC was created through the resolution 1279 in 1999 due to the armed-conflict within the DRC, and as initial plan for observing the ceasefire agreement and withdrawal of the foreign forces from the DRC. In 2010, MONUSCO was established and replace MONUC in order to reflect the new issue which could not be solved with the previous mandate. Even with the evolution of the MONUSCO, the armed-conflict has been occurring in the DRC which led to the creation of the United Nations Intervention Brigade to response to the security of the DRC and under the Humanitarian reasons. The Intervention Brigade was established as a military intervention via the collective international responsibility based on the principle of Responsibility to Protect (R2P). Logically, even the United Nations is not a party to the related treaties of IHL, the organization and peacekeeper may complies with some rules of the International Humanitarian Law (IHL) for the force under the UN Peacekeeping Operations once it could be proven the applicability of the IHL via determining the existence of the armed-conflict, the mission “MONUSCO” involving as a party to the armed-conflict, and the legal status of the peacekeepers under the MONUSCO and Intervention Brigade. From the discussion and analysis above, it found that there is no doubt over the existence of armed-conflict since there has been a complicated conflict involved by many active armed-groups. Importantly, not only the Intervention Brigade is a party to the armed-conflict due to its mandate as the enforcement peace operation, but the MONUSCO as a whole is considered to be a party to the armed-conflict in the DRC as a result of its involving actively in the armed-conflict and its support to the FARDC in the conflict. As a result, all member of the MONUSCO has been losing its legal protection afforded by the Convention on the Safety of United Nations and Associated Personnel and SOFA. After being learnt about the applicability of the IHL on the UN peacekeepers, it regulated the code of conduct of the peacekeepers during the operations because the peacekeepers has also been involving into the problem of Sexual Exploitation and Abuse (SEA) which has been considered as a serious challenge for the International Community and the United Nations. Not only numerous allegations of the Sexual Exploitation and Abuse (SEA) by the peacekeepers has been issued and ruined the image and reputation of the United Nations, but it has also been left with the complete impunity. With such matter, the United Nations has been trying its best to deal with the problem of Sexual Exploitation and Abuse (SEA) committed by the peacekeepers through many actions like a zero-tolerance policy, yet some of them are still remaining to happen.
CHAPTER FIVE: THE FUTURE OF THE WOMEN PROTECTION FROM SEXUAL EXPLOITATION COMMITTED BY THE UN PEACEKEEPERS DURING THE UN PEACEKEEPING OPERATIONS
True, the UN peacekeeping operations are represented the United Nations in the international context and are deployed with its specific mandate serving the purpose of maintaining the International peace and security under the Chapter VII of the UN Charter.[234] Thus, the outcome of the UN Peacekeeping Operations will measure the reputation and image of the United Nations itself. As has been discussed in Chapter 4, the problem of the Sexual Exploitation and Abuse within the UN peacekeeping operation leave many questions and critiques which spoil the image of the United Nations and the trust from the International Community. At the same time, not only the International Community but the host state and the Troop Contributing Countries (TCCs) has also been struggling to response to or deal with the problem of the Sexual Exploitation and Abuse (SEA) which has been occurred for decades. With the efforts of the United Nations all these years, the problem of Sexual Exploitation and Abuse (SEA) has been reduced, yet it is still remaining and the perpetrators are sent back to their home country, with complete impunity. From my own perspective, to provide the future protection for women from Sexual Exploitation and Abuse committed by the peacekeepers, the reformation should be proposed and taken into account through the two main considerations, including the National effort over the Sexual Exploitation and Abuse (SEA) and the joint hand from the International Community, which will be elaborated in the following section of this Chapter.
The pattern of this Sexual Exploitation and Abuse (SEA) is partly due to the lack of criminal accountability and the ineffectiveness of personnel selection which can also be solved through the national efforts. Under the idea of the national efforts over the problem of Sexual Exploitation and Abuse (SEA), there is two proposed idea in order to improve the future women protection, including a vetting mechanism on the UN peacekeepers and the Criminal Accountability.
If we look deeper into the problem of the Sexual Exploitation and Abuse (SEA), not every peacekeeper would likely involve in such crime, but some individuals with poor discipline and behavior potentially involve in the matter. Logically, every troop contributing country has their own formal process in selecting the candidates who will be sent to the host states, which may be based on the hierarchy, rotation, or recommendation.[235] Thus, as a starting point in dealing with the problem of Sexual Exploitation and Abuse (SEA), every Troop Contributing Countries (TCCs) have to set out their vetting mechanism on the candidate selection in consistent with the standards set under UN Charter because the United Nations has also played a significant role in monitoring on the minimum standards of their staffs. By setting out such mechanism, those candidates with low or poor records of behavior or discipline would not be selected for the future operations. As stating in the article 101 of the UN Charters concerning the staff under the regulations and rule of the UN and relevant UN standards, the candidates from the Troop Contributing Countries would be a part of the Secretariat, thus the secretariat has also played a crucial role in ensuring the personnel’s highest standards of efficiency, competence and integrity, and the respect of human rights. As the article 101 of the UN Charter provided that:
1. The Staff shall be appointed by the Secretary-General under regulations established by the General Assembly;
2. […] these staff shall form a part of the Secretariat.
3. The paramount consideration in the employment of the staff and the determination of the conditions of service shall be the necessity of securing the highest standards of efficiency, competence, and integrity. […][236]
To that end, it requires a significant involvement and cooperation of the UN personnel’s respective countries in showing their disciplinary conduct and behavior of their personnel before the deployment in order to ensure the standards consistently with the regulations and rule and others related standards under the United Nations. To the standards of conduct and behavior of the UN personnel, there are four main sources such as the 1952 UN Staff Regulations and Rules, The Ten Rules for Code of Personnel Conduct in 1998, the 2003 Bulletin on the Special Measure for Protection from Sexual Exploitation and Sexual Abuse, and the Bulletin on the Observance by United Nations Forces of International Humanitarian Law. Under the Ten Rules of the code of conduct for UN personnel, the 2003 Bulletin, and the Bulletin on the Observance by United Nations Forces of International Humanitarian Law, it specifics the standards of conduct for the UN personnel during or for the future operations which each of three documents are already discussed and mentioned in Chapter 3 of this dissertation. Such conducts that are mentioned in these three documents are prohibited by the 1952 UN Staff Regulations and Rules. Importantly, the specification of the conduct under these document is concluded with respect to the Human Rights and the International Humanitarian Law (IHL). Practically, in the same line with the 2012 Policy on Human Rights Screening of the UN personnel,[237] the Troop Contributing Countries (TCCs) should cooperate with the United Nations by showing their personnel’s record and background to make sure that they did not involve and participated in offences or the human rights abuse and violations of the International Humanitarian Law (IHL). The same goes to the case of the Democratic Republic of the Congo (DRC) which has been discussed above that there have been many cases involved by the UN personnel in such abuses because of the inconsistency of selection mechanism.
Throughout the vetting mechanism for future UN personnel, I propose that the participation of the female UN personnel in the UN peacekeeping operations. With a matter of the behavior and discipline and gender equality, it also naturally involves a matter of male or female UN personnel. As also pointed out by the Special Representative to the Secretary General (SRSG), namely Yasushi Akashi, that “Boys will be boys” attitude is also considered as an obstacle in ending the problem of Sexual Exploitation and Abuse.[238] The idea was supported by the former US ambassador to the United Nations, Richard Holbrooke, saying that “Human Nature is Human Nature” attaching with the idea that wherever the peacekeepers go, they would attract prostitutes.[239] Therefore, including the participation of the female personnel in the operations, especially in the position of senior personnel, it could help to discourage the problem of Sexual Exploitation and Abuse. As an example of operation in Liberia, India contributes their female personnel so that the female participation and gender equality could be promoted and improved.[240]
All in all, it would be greatly difficult to end the problem of Sexual Exploitation and Abuse (SEA) until the Troop Contributing Countries (TCCs) have their vetting process consistently with the United Nations standards. Such vetting mechanism would improve the situation of Human rights abuse and violation of the IHL, especially build the discipline and right respecting of the personnel. What’s more, the inclusion of the female in the UN Peacekeeping operations will improve and promote gender equality in the International Context.
All these years, the United Nations has been trying its best efforts via measures and many approaches in order to deal with the problem of Sexual Exploitation and Abuse (SEA). The problems of the Sexual Exploitation and Abuse (SEA) has been reduced a lot, but the problem of criminal accountability has still remained until nowadays. As discussed in Chapter 3, the UN peacekeepers may enjoy their legal protection status, but they may also subject to lose their legal protection and place under the criminal responsibility. At the same time, the main obstacle for the criminal accountability for the problem Sexual Exploitation and Abuse (SEA) is the jurisdiction given only to the Troop Contributing Countries (TCCs) or the respective participating states in the mission. This has been a state in Paragraph 47 (b) of the Model UN Status of Force Agreement saying:
“[…] (b) Military members of the military component of the United Nations peace-keeping operation shall be subject to the exclusive jurisdiction of their respective participating states in respect of any criminal offenses which may be committed by them in [host country/territory]”[241]
According to this paragraph, for this crime occurring in the host, the Troop Contributing Countries (TCCs) or the respective participating states have the exclusive jurisdiction over the case. Importantly, from the Status of Forces Agreement (SOFA), the Secretary General are allowed just to investigate and refer the case to the respective participating states, even cannot waive the immunity of the UN personnel since the exclusive jurisdiction is retained by the TCCs or respective participating states. As a result, there have been so many cases which referred to the respective participating states of the perpetrators have not solved within the trail. As discussed in Chapter 4 about the criminal accountability, most of the perpetrators who has been repatriated to their home country are rarely put into the trial for the committed crime because of the difficulties such as accessing or receiving the evidence from the host state and the unusable of the local law of the host state for the extraterritorial prosecution. From my own perspective, after seeing and analyzing the problem of Sexual Exploitation and Abuse (SEA), I have come up with a proposed idea to the women Protection from Sexual Exploitation and Abuse (SEA) that the amendment on Paragraph 47 of the Model UN of Force Agreement should be taken into account. From the idea of the amendment on the paragraph 47 of the Model UN of Force Agreement, it is to shift the phrase of grant the exclusive jurisdiction to only the Troop Contributing Countries (TCCs) or the respective participating states in the mission, instead to move the term to “subsidiary jurisdiction” to the Troop Contributing Countries (TCCs) or the respective participating states. With my point of view, by giving only subsidiary jurisdiction to the Troop Contributing Countries (TCCs) or the respective participating states, the host state should logically deserve a priority in excising the jurisdiction over the case of SEA since witnesses and evidence are much easier to access locally. To that end, several institutions, in charge of the investigation, prosecution, adjudication, and custody, should be created so that the host state would be able to exercise such jurisdiction over the UN personnel. By amending the paragraph 47 of the Model UN Status of Force Agreement, the problem of Sexual Exploitation and Abuse (SEA) would be able to be solved faster and more efficient because the perpetrators or their colleagues has not enough time to cover their crimes, and the host state may be able to make use of their local laws. The outcome would be more sufficient and end the impunity that has been left for decades.
To sum up for this point, the amendment on the Model UN Status of Force Agreement is one of the important points to ensure the criminal responsibility and to end the impunity of the perpetrators. To hold a trial in the host state, it grants the local people or victims a greater sense of the justice and fairness as being done and being seen by their own eyes. True, ensuring the criminal accountability may be able to be one of the solutions to the future of women protection from the SEA.
As being studied and discussed in Chapter 4, the problem of the Sexual Exploitation and Abuse (SEA) is not only involved by particular individual or Troop Contributing Country (TCC), but it involves many perpetrators who are coming from different countries around the world because the UN personnel are contributed by its member states. True, the starting point in solving this problem should be starting from the National level. However, it cannot truly and fully be done at the national stage, but it importantly needs the joint-hand from the international community, such the respective participating states, the United Nations and its member states. Therefore, the problem solving of Sexual Exploitation and Abuse (SEA) at the International level will be explained and illustrated in this section. To that end, I have come up with a potential standpoint in solving such a problem, through the feasibility of the Special Permanent Court.
As discussed in Chapter 4 concerning to the criminal accountability of the perpetrator Involving the Sexual Exploitation and Abuse, the approach of repatriating the perpetrators has been criticized and left with many doubts and questions because the exclusive jurisdiction over the case of Sexual Exploitation and Abuse (SEA) committed by the UN personnel is retained by the Troop Contributing Countries (TCCs) or respective participating states as in accordance with the paragraph 47 of Model UN Status of Force Agreement.[242] However, according to the former Assistant Secretary of State for the Bureau of International Organization Affairs, namely Kim R. Holmes, he even criticized that the Troop-Contributing Countries have had a poor record of holding trial for their personnel who committed such violation of International Human Rights or International Humanitarian Law, particularly the problem of Sexual Exploitation and Abuse (SEA).[243] Therefore, it clearly proves that the exclusive jurisdiction over the case of such violations is not necessary to be given to the Troop-Contributing Countries (TCCs). As I have mentioned in the previous section that the Troop Contributing Countries (TCCs) or the respective participating states should be given only a subsidiary jurisdiction over the case so that the case of the Sexual Exploitation and Abuse (SEA), I have come up with another potential approach in order to ensure the criminal accountability which is the feasibility of the Special Permanent Court. As mentioned in Chapter 3 and 4, it is worth to note that many cases of the Sexual Exploitation and Abuse has been prosecuted and still in pending after the case has been referred to the Troop Contributing Countries (TCCs) or the respective participating states. As suggested by the Congolese Government, the Specialized Mixed Chamber should be established as a new mechanism for dealing with the problem of the Sexual Exploitation and Abuse.[244] However, from the point of my view, once the Specialized Mixed Chamber solved the problem within its regions, and fulfilled its mandate, such Chamber would be dissolved. However, the deployment of future operations would be possibly taken place, and the problem of Sexual Exploitation and Abuse (SEA) would occur at any time as well. Thus, there is one question arisen, Will there be another Specialized Mixed Chamber? Logically, it would cost times and tons of budget in establishing the Specialized Mixed Chamber again and again. Therefore, for the future of the women protection and the criminal accountability to bring an end to the impunity, the Special Permanent Court should be built up with the function to prosecute the UN personnel who committed the Human Rights Abuse or violate the International Humanitarian Law during the mission, like the problem of the Sexual Exploitation and Abuse (SEA). The creation of the International Criminal Court (ICC) could be the practical lesson for the feasibility of the Special Permanent Court. Legally, According to the Article 5 of the Rome Statute, the International Criminal Court (ICC) only prosecute the most serious crimes such as the Crime of Genocide, the Crime against Humanity, War Crimes, and the Crime of Aggression.[245] As a Practical Lesson from the ICC exercising the jurisdiction of the court, the Special Permanent Court would exercise its jurisdiction in accordance with the principle of the complementarity. As co-relating to the proposed idea from the previous section that the host state would receive a priority in exercising its jurisdiction in the case of Sexual Exploitation and Abuse, the Special Permanent Court would exercise its jurisdiction on the problem in any case that the host state in accordance with its national legal system failed to prosecute the perpetrators, including purporting to prosecute with the unwillingness or having no capacity to carry out the proceedings[246]. To that end, the Special Permanent Court would prosecute the perpetrator of the Sexual Exploitation and Abuse based on the draft convention on the criminal accountability of United Nations officials and experts on a mission which has proposed by the General Assembly in 2006 and the General-Secretary Bulletin in 20037. However, by acknowledging a difficult that only “rape, and acts of sexual violence or sexual offenses involving children”[247] was included in the draft convention, but the act of exchanging food or money with the adult or young girl for sex has not been included in the draft convention. Therefore, there should be an inclusion of the acts of exchanging food or money for sex with the adult or young girl in the draft convention. In other words, the involvement of the peacekeepers in the prostitution exploiting the vulnerability or poverty of the local population. With that, this Special Permanent Court would be able to prosecute the crime of Sexual Exploitation and Abuse (SEA).
In conclusion, to ensuring the criminal accountability, it can be done through the creation of the Special Permanent Court with the practical lesson from the International Criminal Court (ICC). With my very perspective, holding trials by the Special Permanent Court or court of the host state, as long as in the host state, will give a greater sense of justice and fairness to the victims since they can witness the prosecution via trials.
CHAPTER VI: CONCLUSION
The development of the International Law, both in the Private International Law and the Public International Law, has been taking place in order to reflect the current and new issues and challenges in the International context. Particularly, before the First World War (known as the Great War) and the Second World War, the issue of the individual’s rights had not been paid much attention while people had been suffering during the war period. After the World War II, the United Nations was established in order to maintain the international peace and security, and the issue of Human rights has been paid more attention as a lesson learned from the Human suffering during the First World War and the Second World War. To that end, the UN Peacekeeping operations have come into existence as a tool for the United Nations to fulfill its goals and objectives which one of them is the International Peace and Security as a main goal. From its historical development, the UN peacekeeping operation keeps shifting its mandate and its nature in order to reflect the current issues and challenges in the International context. During and after the conflict, the vulnerable group including Women and Child are more likely to be the one who suffers greatly. The UN peacekeeping operation would be deployed into the country which is suffering from the during or post-conflict in order to protect the civilian and stop the civil war or conflict within the country, and it also can be deployed under the humanitarian ground as well. With the UN peacekeeping operation, it gives hope to the people who are the victims of the conflict, especially women and child. However, it hurts the victims’ trust greatly because of the problem of Sexual Exploitation and Abuse (SEA) during the UN Peacekeeping Operation. The UN peacekeepers are supposed to be the protector for civilian, but it turns out that the UN peacekeepers are the perpetrators who are involving into the problem of Sexual Exploitation and Abuse (SEA) which violate the International Human Rights Law (IHRL), especially the International Humanitarian Law (IHL). However, it can be contested that the United Nations is not the party of any treaties of the International Humanitarian Law (IHL). Thus the United Nations may not be bound by the International Humanitarian Law. As discussed in the Chapter 3, the application and principles of the International Humanitarian Law could be inserted through the Status of Force Agreements between the United Nations and Host States, the Convention on the Safety of United Nations and Associated Personnel, and the Bulletin on the Observance by United Nations Forces of International Humanitarian Law which recognize the rules and principles of the International Humanitarian Law. Thus, not only the United Nations may be bound by treaties of the International Humanitarian Law, but the UN personnel who hold a legal protection (immunity) would be bound by treaties of the International Humanitarian Law (IHL) as well, even potentially lose their immunity. As analyzed and discussed in the Chapter 4 over the case study of Sexual Exploitation and Abuse (SEA) in the Democratic Republic of the Congo (DRC), it found out that not only the Intervention Brigade is considered to be a party to the armed-conflict, but also the MONUSCO as a whole is considered to be a party to the armed-conflict. Thus, all member of the MONUSCO has been losing its legal protection afforded by the Convention on the Safety of United Nations and Associated Personnel and SOFA. Considering to the problem of Sexual Exploitation and Abuse (SEA), the United Nations all these years has been trying its best efforts in tackling the problem. With its efforts, the problem of SEA has been reduced in a considerable number, but the criminal accountability has become the main obstacle in dealing with the problem because most of the cases that were referred to the Troop Contributing Countries (TCCs) or respective participating states are still pending, even without holding a trial.
To the problem of Sexual Exploitation and Abuse (SEA), I have come up with the proposed idea which is potentially the solution to the problem of Sexual Exploitation and Abuse (SEA), through two stages such the national efforts or stage and the problem-solving at the International level or stage. Throughout the national efforts, I have come across with the idea of proposing the vetting mechanism on the UN personnel for the TCCs, which the selection process of the TCCs would have to set out in consistent with the Article 101 of UN Charter and standards were specified by the Ten Rules for Code of Personnel Conduct in 1998, the 2003 Bulletin on the Special Measure for Protection from Sexual Exploitation and Sexual Abuse, and the Bulletin on the Observance by United Nations Forces of International Humanitarian Law. Through the vetting mechanism, the participation of the female peacekeepers has to be taken place, especially at the level of the senior position. Besides, to ensure the criminal accountability, I have proposed the idea of amending the paragraph 47 of the Model UN Status of Force Agreement so that the host state could play a leading role in prosecuting the perpetrators. Importantly, since the problem of SEA is somehow considered to be an international problem, the solving problem at the international level would be a privilege solution. With this idea, I have come up with the idea of establishing the Special Permanent Court in the near future. To end that, taking the lesson learned from the International Court, namely the International Criminal Court (ICC), would be a potential feasibility of the Special Permanent Court and solution to the problem of criminal accountability of the Sexual Exploitation and Abuse (SEA) in need of prevailing consideration.
References
- Primary Materials
- International Conventions or Treaties
Additional Protocol to the Geneva Convention of 12 August 1949, Relating to the Protection of Victims of International Armed Conflicts, June, 8, 1977, 1991 A.T.S No. 29, 1125 U.N.T.S 3, 16 I.L.M 1391.
Agreement on the Status of the United Nations Assistance Mission for Rwanda (UNAMIR), 1993.
Agreement on the Status of the United Nations Assistance Mission for Rwanda, Nov. 5, 1993, 1748 U.N.T.S. 257.
Convention (IV) respecting the Laws and Customs of War on Land and its annex: Regulation concerning the Laws and Customs of War on Law, The Hague, Oct. 18, 1907.
Convention on the Rights of the Child art 34, Nov. 20, 1989, 1577 U.N.T.S.3.
Convention on the Safety of United Nations and Associated Personnel, Dec. 4, 1994, 2051 U.N.T.S. 363.
Statute of the International Court of Justice, Apr. 18, 1946, 3 Bevans 1179, T.S. No. 993, 59 Stat. 1031.
The Geneva Convention of 12 August 1949, Aug 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287.
The Secretary General, Special Measures for Protection from sexual exploitation and sexual abuse, U.N. Doc. ST/SGB/2003/13 (Oct. 9, 2003).
The United Nations Publications: Charter of the United Nations and Statute of the International Court of Justice.
UN General Assembly, Rome Statute of the International Criminal Court, art 5, 17 July 1998
- International Legal Documents (Resolution, advisory opinion or judgement of court, Report, Press Release, Sale Document, Cases)
Department of Peacekeeping Operations, Civil Affairs Handbook at 22-23, U.N. Sale No. E.12.VII.2 (2012)
G.A Res. 57/306, Section 2, ¶ 2.1, U.N. Doc. A/RES/57/306 (Oct. 9, 2013).
G.A Res. 60/1, ¶ 77, U.N. Doc A/RES/60/1 (Oct. 24, 2005)
Icrc.org, Customary International Humanitarian Law: Roundtable Reports, 22 (F. Barnaby et al, eds., 2008)
ICTY, Prosecutor v. Tadic, Case No. IT-94-1, Decision on Defence Motion for Interlocutory Appeal on Jurisdiction, (Oct. 2, 1995) [hereinafter Tadic Case].
International Committee of the Red Cross (ICRC), How is the Term “Armed Conflict” defined in International Humanitarian Law? 1 (March, 20088`8).
Jenna Stern, Reducing Sexual Exploitation and Abuse in UN Peacekeeping: Ten Years After the Zeid Report 7 (2015).
Office for the Coordination of Humanitarian Affair (OCHR), Humanitarian Assistance and Assistance to Refugees, Sale No. E.98.I.20 (May 21, 1999).
Press Release, General Assembly, Addressing Sexual Exploitation, Abuse Cases Involving Peacekeepers Requires Swift Accountability, Decisive Action, Speakers Tell General Assembly, U.N. Doc. GA/11810 (Sep. 7, 2016)
Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion, 1949 I.C.J. 117.
S.C. Res. 1279, U.N. Doc. S/RES/1279 (Nov 30, 1999).
S.C. Res. 1325, ¶ 8 & 37, U.N. Doc. S/RES/1325 (Oct 31, 2000).
S.C. Res. 1674, U.N. Doc. S/RES/1674 (April 28, 2006)
S.C. Res. 1706, U.N. Doc. S/RES/1706 (Aug. 31, 2006)
S.C. Res. 1820, U.N. Doc. S/RES/1820 (June 19, 2008).
S.C. Res. 1925, U.N. Doc. S/RES/1925 (May 28, 2010).
S.C. Res. 2098, U.N. Doc. S/RES/2098 (March 28, 2013)
S.C. Res. 2272, U.N. Doc. S/RES/2272 (March 11, 2016).
The General Assembly, Comprehensive Review of the whole question of peacekeeping operations in all their aspects, letter dated 24 March 2005 from the Secretary General to the President of the General Assembly, U.N. Doc. A/59/710 (March 24, 2005).
The General Assembly, Criminal accountability of United Nations officials and experts on mission, G.A. Res. 62/63, U.N. Doc. A/63/260 (Aug. 11, 2008).
The General Assembly, Model Status of Force Agreement of Peacekeeping Operations, G.A. Res. 45/594, U.N. Doc. A/RES/45/594 (Dec. 9, 1990).
The General Assembly, Special measure for Protection from Sexual Exploitation and Abuse: a new approach, Report of the Secretary-General, U.N. Doc. A/71/818 (Feb. 28, 2017).
The Secretary General, Ensuring the accountability of United Nations Staff and Experts on Mission with Respect to Criminal Acts Committed in Peacekeeping Operations, delivered to the General Assembly, Annex III, art 3, U.N. Doc. A/60/980 (Aug. 16, 2006).
The Secretary-General, Investigation by the Office of Internal Oversight Service into allegation of sexual exploitation and abuse in the United Nations Organization Mission in the Democratic Republic of the Congo, U.N. Doc. A/59/661, 5 (Jan. 5, 2005).
The Security Council, Letter dated 12 November 2012 from the Chair of the Security Council Committee established pursuant to resolution 1533 (2004) concerning the Democratic Republic of the Congo Addressed to the President of the Security Council, ¶ 4, U.N. Doc S/2012/843 (Nov. 15, 2012).
U.N. Secretary-General (UNSG), Secretary-General’s Bulletin: Special Measure for Protection from Sexual Exploitation and Sexual Abuse, § 1, U.N. Doc. ST/SGB/2003/13, (Oct 9, 2003).
United Nations Conduct and Discipline Unit, Ten Rule: Code of Personnel Conduct for Blue Helmets (1998).
United Nations General Assembly, Revised draft model memorandum of understanding, U.N. Doc. A/C.5/66/8, Annex F, ¶ 33 & 34 (Oct. 27, 2011).
United Nations Office on Drugs and Crime, Handbook on Effective police responses to violence against women 7, Sale No. E.10.IV.3 (2010).
United Nations Secretariat, The Bulletin on the Observance by United Nations Forces of International Humanitarian Law, U.N. Doc. ST/SGB/1999/13, § 4 (Aug. 6, 1999).
United Nations, Office of the High Commissioner, Women’s Rights are Human Rights 3, Sales No. E.14.XIV.5 (2014).
World Conference on Human Rights, Vienna Declaration and Programme of Action, ¶ 18 & 60, U.N. Doc. A/CONF.157/23 (July 12, 1993).
- Working Paper and Reports
Francesco Francioni & Christine Bakker, Responsibility to Protect, Humanitarian Intervention and Human Rights: Lessons from Libya to Mali 2-3 (Transworld, Working Paper No. 15, 2013).
Hayley Lopes, Sexual Violence and Exploitation of Local Women by UN Peacekeepers: Addressing Militarized Masculinity (Conflict Research Centre, Working Paper No. 8, 2013).
Martin Ortega, Military Intervention and the European Union 7 (Institute for Security Studies, Chaillot Papers 45, 2001).
Office of Internal Oversight Services (OIOS), Evaluation Report of the Enforcement and Remedial Assistance Efforts for Sexual Exploitation and Abuse by the United Nations and Related Personnel in Peacekeeping Operations, Inspection and Evaluation Division 4 (May 15, 2015).
Simon Reich, What is Globalization? 4 (Kellogg Institute, Working Paper No. 261, 1998).
The General Assembly, Report of the High-Level Panel on Threats, Challenges and Change, ¶ 203, Note by the Secretary-General, U.N. Doc. A/59/565 (Dec. 2, 2004).
The General Assembly, Report of the International Commission on Intervention and State Sovereignty, Letter dated 26 July 2002 from the Permanent Representative of Canada to the United Nations addressed to the Secretary-General, U.N. Doc. A/57/303 (Aug. 14, 2002).
United Nations, Report of the Secretary General on the United Nations Organization Stabilization Mission in the Democratic Republic of the Congo, U.N Doc. S/2012/355, ¶ 16 (May. 23, 2012)
United Nations, Report of the Special Committee on Peacekeeping Operations and its Working Groups on the 2007 Resumed Session, Annex H U.N. Doc. A/61/19 (June 12, 2007).
- Secondary Materials
- Books
Antoine A. Bouvier, International Humanitarian Law and the Law of Armed-Conflict (Harvey J. Langholtz ed., Peace Operations Training Institute 2012) (2000).
Bruce Oswald, Jr. et al, Documents on the Law of UN Peace Operations 432 (2010)
Catalina Lopez Salva, Sexual Exploitation and Abuse by UN peacekeepers: Calling into question solution implemented 6-7 (May 7, 2015)
Christopher Greenwood, International Humanitarian Law and United Nations Military Operations, 1 Y.B. OF INT’L HUMANITARIAN LAW 3 (1998)
Document on the Laws of War, 721 (A. Roberts & R. Guelff, eds., 3rd. ed, Oxford: Oxford University Press, 2000).
Finn Seyersted, United Nations Forces, Some Legal Problems 351 (1961).
Igor Blishchenko, International Humanitarian Law 11-12 (1989).
Jean Pictet, Humanitarian Law and the Protection of War Victims 123 (1975).
Kai Michael Kenkel, Five Generations of peace operations from the “thin blue line” to “painting a country blue” 123-125 (2013).
Kelly Neudorfer, Sexual Exploitation and Abuse in UN Peacekeeping: Analysis of Risk and Prevention Factors, 1 (2015).
Leslie C. Green, The Contemporary Law of Armed Conflict 85-86 (1993).
Milton Leitenberg, Death in Wars and Conflicts in the 20th Century 9 (2006).
Natalia Perova, The United Nations, Member States and Individuals Sharing International Responsibility for Serious Violations of International Law Committed During Peace Support Operations 121 (August, 2014).
Nikolai Wessendorf, The Charter of the United Nations: A Commentary (2nd edition Oxford University Press, Oxford 2002), at 687-688.
Peter J Atkins, Food Security, Safety and Crises 69 (2012).
Randle C. Defalco, Justice and Starvation in Cambodia: The Khmer Rouge Famine 46 (2014).
Roisin Sarah Burke, Sexual Exploitation and Abuse by UN Military Contingents: Moving Beyond the Current Status Quo and Responsibility under International Law 63 (2011).
Timo Pelz & Volker Lehmann, the Evolution of UN Peacekeeping (1): Hybrid Missions 2 (2007).
U.N. DEP’T of PKO & DEP’T of FS, United Nations Peacekeeping Operations: Principles and Guidelines (Jan. 18, 2008).
United Nations Peacekeeping Operations, United Nations Force Headquarters Handbook 8 (2014).
- Journal Law or Article, Magazine Article, Working paper
A. Andre Da Rocha Ferreira, Jr. et al, Formation and Evidence of Customary International Law, 1, UFRGSMUN, 190 (2013).
Australian Red Cross, Gender, Armed Conflict and Humanitarian response, International Humanitarian Law Magazine, 2014, at 4.
BBC Media Action, Country Case Study: Cambodia, Support to Media where media freedoms and rights are constrained 2 (2012).
Carla Ferstman, Criminalizing Sexual Exploitation and Abuse by Peacekeepers, UNITED STATES INSTITUTE OF PEACE (2013): at 4-5.
Carol Allais, Sexual Exploitation and Abuse by UN peacekeepers: The Psychosocial Context of Behavior Change, 39 South African Journal of Military Studies 6 (2011).
Cathy Nangini, et al, Visualizing Armed Group: The Democratic Republic of the Congo’s M23 in Focus, 3 Stability: International Journal of Security & Development, 5 (2014).
Corinna Csaky, No One to Turn to: The under-reporting of Child Sexual Exploitation and Abuse by Aid workers and Peacekeepers, Save the Children Fund 13 (2008).
Daphna Shraga, The Applicability of International Humanitarian Law to peace operations from rejection to acceptance, international humanitarian law, human rights and peace operations 90, 94 (2008).
Devon Whittle, Peacekeeping in Conflict: The Intervention Brigade, MONUSCO, and The Application of International Humanitarian Law to United Nations Forces, 46 Associate Professor Bruce Oswald. 837, 842 (2015).
Dieter Fleck, The Legal Status of Personnel involved in United Nations Peace Operations, International Review of the Red Cross 95, 891/892 (2013): at 614.
Gerald Caplan, Peacekeepers gone wild: How much more abuse will the ignore in Congo?, Special to the Globe and Mail (Aug. 3, 2012).
Grant Curtis, Transition to What? Cambodia, UNTAC, and The Peace Process, United Nations Research Institute for Social Development 11 (1993).
Haidi Willmot & Scott Sheeran, The protection of civilian mandate in UN peacekeeping operations: reconciling protection concepts and practices 517-518 (International Review of the Red Cross, 2013).
Human Rights Watch, “You Will Be Punished”, Attacks on Civilians in Eastern Congo, 48 (2009).
Human Rights Watch, Democratic Republic of the Congo 2012 Human Rights Report, United State Department of State, 12 (2012).
International Peace Institute, The UN Intervention Brigade in the Democratic Republic of the Congo 6 (July, 2013).
James Turner Johnson, Humanitarian Intervention, The Responsibility to Protect, and Sovereignty: Historical and Moral Reflections, 23.3 Michigen State International Law Review. 609, 610 (2015).
James W. Houck, The Command and Control of United Nations Forces in the Era of “Peace Enforcement”, Journal of Comparative and International Law (1993), at 26.
Jason Stearns, From CNDP to M23, The Evolution of an armed movement in eastern Congo, 25 (2012)
Judy L. Ledgerwood, UN Peacekeeping Missions: The Lessons from Cambodia, 11 Analysis from the East-West Center, 3 (1994).
Kamrul Hossain, “The Concept of Jus Cogens and the Obligation under the U.N. Charter.” Santa Clara Journal of International Law 3 (Jan 1, 2005): 73.
Kirsti Lattu, To Complian or not to complain: Still the Question, Humanitarian Accountability Partnership 32 (2008).
Knut Doermann, “Obligation of International Humanitarian Law”, 2 Military and Strategic Affair 4 (September 2012): 11-23.
Kolb Robert, Note on humanitarian intervention, affaires courantes et commentaires current issues and comments 120 (March 2003).
Machiko Kanetake, The UN Zero Toerance Policy’s Whereabouts: on the Discordance Between Politics and Law on the Internal-External Divide 52 (2012).
Mark Weisburd, The International Court of Justice and The Concept of State Practice, 31:2, 300 (2009).
Markus Benzing, The Complementarity Regime of the International Criminal Court: International Criminal Justice Between State Sovereignty and the Fight against Impunity, 7 Max Planck Yearbook of United Nations Law. 591, 598 (2003).
Marleen Bosmans, Challenges in Aid to Rape Victims: the case of the Democratic Republic of the Congo, 4 Essex Human Rights Review 6 (2007).
Marten Zwanenburg, Regional Organization and the Maintenance of International Peace and Security: Three Recent Regional African Peace Operations, 11 Journal of Conflict & Security Law 483 (2006).
Muna Ndulo, The United Nations Responses to the Sexual Abuse and Exploitation of Women and Girls by Peacekeepers During Peacekeeping Missions 6 (2009). Cornell Law Faculty Publication. Paper 59.
Ola Engdahl, Protection of Personnel in Peace Operations: The Role of the ‘Safety Convention’ against the Background of General International Law 29 (Leiden, Boston: Martinus Nijhoff, 2007).
Rebecca Pirius, Criminal Statutes of limitations, Research Department: Minnesota House of Representative 2 (2016).
Romy Nieuwenhuizen, Who will guard the guardians? Sexual exploitation and abuse by peacekeepers: focus on the Democratic Republic of the Congo, Victomology and Criminal Justice 17 (2013).
Sandra Whitworth, Men, Militarism, and UN Peacekeeping: A Gendered Analysis 67 (2004)
Sarah Martin, Must Boys Be Boys?: Ending Sexual Exploitation and Abuse in UN Peacekeeping Missions, Refugees International, 27 (2005).
Scott Sheeran & Stephanie Case, the Intervention Brigade: Legal Issue for the UN in the Democratic Republic of the Congo, International Peace Institute, 2 (2014).
Scott Sheeran, ET AL., UN Peacekeeping and The Model Status of Force Agreement, School of Law and Human Rights Centre (August, 2010).
Small arms Survey, Down, But Not Out: The FDLR in the Democratic Republic of the Congo, 56 Small Arms Survey Research Note, 4 (2016).
Suk Chun, Sexual Exploitation and Abuse by UN Peacekeepers (International Peace Research Institute, Oslo (PRIO) 2009).
Ted Dagne, The Democractic Republic of Congo: Background and Current Developments, 7-5700 Cogressional Research Service. 2 (Sept 1, 2011).
Trevor Findlay, Cambodia The Legacy and Lessons of UNTAC, 9 Stockholm International Peace Research, 150 (1995).
UN Women, Sexual Exploitation and Abuse – A Summary of the latest policy, Inputs for the High-level Independent Panel on Peace Operations (2015)
United Nations, Human Rights Screening of United Nations Personnel, United Nations Policy 3 (Dec. 11, 2012).
William Thomas Worster, “Immunities of United Nations Peacekeepers in the Absence of a Status of Force Agreement”, In Military Law and the Law of War Review 47 (2008): 277-375.
- Websites
African Union/United Nations Hybrid Operation in Darfur, UNAMID Mandate, available at http://www.un.org/en/peacekeeping/bmissions/unamid /mandate.shtml
Al Jazeera, Congo and the General, People & Power goes behind the scenes with UN peacekeepers who are shifting their rules of engagement in the DRC Congo (Feb. 6, 2014), available at http://www.aljazeera.com/programmes/peop leandpower/2014/01/congo-general-2014131116336818.html
Alnowaiser, Legal Concepts: The Principle of Non-Retroactivity of Law (May 2016), available at http://www.alnowaiserlaw.com/en/legal-concepts-principle-non-retroactivity-law
Barbara T. Doyle & Emily Doyle Iland, Objective vs. Subjective Information (2004), available at http://disability.publichealth.gsu.edu/files/2013/12/Objective-vs-Subjective.pdf.
BBC News, Female Peacekeepers Reach Liberia: The first all-female Unit of the United Nations has arrived in Liberia’s Capital, Monrovia, (Jan. 30, 2007), available at http://news.bbc.co.uk /go/pr/fr/-/2/hi/Africa/6314263.stm.
Cambridge Dictionary (2016), available at http://dictionary.cambridge .org/dictionary/english/sex-trade.
Charles Hauss, Military Intervention, Beyond Intractability (Aug., 2003), available at http://www.beyondintractability.org/essay/military-intervention
Conduct in UN Field Mission, Sexual Exploitation and Abuse (2017), available at https://conduct.unmissions.org/sea-overview
Conor Gaffey, DR Congo: What is the ADF, The Uganda Rebel Group Hacking Civilian to Death? (Feb. 12, 2015), available at http://www.newsweek.com/dr-congo-who-are-adf-ugandan-rebels-hacking-civilians-death-399889
Diakonia, Sources of International Humanitarian Law (2013), IHL Resource Centre, available at https://www.diakonia.se/en/IHL/The-Law/International-Humanitarian-Law-1/Introduction-to-IHL/Sources-of-international-law/
Global Security, Allied Democratic Forces, National Army for the Liberation of Uganda (NALU), Armee Nationale De Liberation De L’ouganda, Force Democratiques Alliees, Islamic Alliace of Democratic Forces, available at http://www.globalsecurity.org/military /world/para/adf.htm
Haider, H., International Legal Framework for Humanitarian Action 14-15 (2013). GSDRC, available at http://www.gsdrc.org/topic-guides/international-legal-frameworks-for-humanitarian-action/concepts/overview-of-international-humanitarian-law/
Human Rights Watch, Central Africa Republic: Rape by Peacekeepers (Feb. 4, 2016), available at https://www.hrw.org/news/2016/02/04/central-african-republic-rape-peacekeepers
ICRtoP.org, Crisis in the Democratic Republic of Congo, International Coalition for the Responsibility to Protect, available at http://www.responsibilitytoprotect .org/index.php /crises/crisis-in-drc
International Committee of the Red Cross (ICRC), Meeting of the intergovernmental group of experts for the Protection of War Victims, No. 304 (February 28, 1995), available at https://www.icrc.org/eng/resources/documents/article/other /57jmbm.htm
International Committee of the Red Cross, Customary Law, available at https://www.icrc.org/en/war -and-law/treaties-customary-law/customary-law
International Federation of Red Cross and Red Crescent Societies, What is vulnerability?, available at http://www.ifrc.org/en/what-we-do/disaster-management/about-disasters/what-is-a-disaster/what-is-vulnerability/.
Julie Reynaert, MONUC/MONUSCO and Civilian Protection in the Kivus 19 (2012).
Kim R. Holmes, Statement on United Nations Organization Mission in the Democratic Republic of the Congo (MONUC) and Peacekeeping Reform before House of Representative International Relations Committee (Mar. 1, 2005), available at http:/www.state.gov/p/io/rls/rm/42982.htm.
Lindsay Scorgie, The Allied Democratic Force: Moving Beyond popular narratives, a rebel group that has existed in the Uganda-DRC borderland for close to two decades, continues to confound observers (July 27, 2013), available at http://www.aljazeera.com/indepth/opinion/2013/07 /201372215812878743.html
MADRE, Speaking Out on Women, Peace and Security at the UN, available at https://www.madre.org/press-publications/human-rights-report/speaking-out-women-peace-and-security-un
Milena Petrova, Criminal Misconduct and Sexual Offences by UN Personnel During Peacekeeping Missions: Responses and Challenges (Feb, 2015), available at http://www.beyondintractability.org/library/criminal-misconduct-and-sexual-offenses-committed-un-personnel-during-peacekeeping-missions
Milena Sterio, The Evolution of International Law, 31 B.C. Int’l & Comp. L. Rev. 213 (2008), available at http://lawdigitalcommons.bc.edu/iclr/vol31/iss2/3
The Customary IHL, rule 33, available at https://ihl-databases.icrc.org/customary-ihl/eng/docs/v1_rul_rule33
U.N. DEP’T of PKO, UN Peacekeeping Operations Fact Sheet (January, 2017), available at http://www.un.org/en/peacekeeping/documents/bnotelatest.pdf
United Nations Conduct and Discipline Unit, Sexual Exploitation and Abuse Policy, available at https://cdu.unlb.org/Policy/SexualExploitationandAbusePolicy .aspx (last accessed Dec 23, 2016).
United Nations Department of Peacekeeping Operations, UN Peacekeeping Background Note (2014), available at www.un.org/en/peacekeeping/ documents/backgroundnote.pdf
United Nations Peacekeeping, Forming a New Operation, available at http://www.un.org/en/peacekeeping/operations/newoperation.shtml
United Nations Peacekeeping, Forming a new operation: The Security Council determines the deployment of a new UN Peacekeeping operation, Forming a new operation. United Nations Peacekeeping (Dec. 7, 2016), available at http://www.un.org/en/peacekeeping/operations/newoperation.shtml
United Nations Peacekeeping, Military: United Nations military personnel are the Blue Helmets on the ground. Today, they consist of over 90,000 military personnel contributed by national armies from across the globe, available at http://www.un.org/en/peacekeeping/issues/military/
United Nations Peacekeeping, What is peacekeeping?, available at http://www.un.org/en/ peacekeeping/operations/peacekeeping.shtml
United Nations Truce Supervision Organization, UNTSO Background, available at http://www.un.org/en/peacekeeping/missions/untso/background.shtml
United Nations, Background Information on the Responsibility to Protect, Outreach Programme on the Rwanda Genocide and the United Nations, available at http://www.un.org /en/preventgenocide/rwanda/about/bgresponsibility.shtml
United Nations, MONUSCO background, United Nations Organization Stabilization Mission in the Democratic Republic of the Congo, available at http://www.un.org/en/peacekeeping /missions/monusco/background.shtml
[1] “Globalization is a term in heavy current usage but one whose meaning remains obscure, often even among those who invoke it. Indeed, Jan Aart Scholte states that ‘globalization stands out for quite a large public spread across the world as one of the defining terms of late twentieth century social consciousness.” Simon Reich, What is Globalization? 4 (Kellogg Institute, Working Paper No. 261, 1998).
[2] Igor Blishchenko, International Humanitarian Law 11-12 (1989).
[3] See id.
[4] “Objective Information is such information that is observable which is able to be seen, heard or touched, smelled, tasted, with the factual information which is able to be counted, able to be describe, able to be imitated, and such information could be gotten from the report screening on the internet.” Barbara T. Doyle & Emily Doyle Iland, Objective vs. Subjective Information (2004), available at http://disability.publichealth.gsu.edu/files/2013/12/Objective-vs-Subjective.pdf.
[5] United Nations Peacekeeping, Forming a new operation: The Security Council determines the deployment of a new UN Peacekeeping operation, Forming a new operation. United Nations Peacekeeping (Dec. 7, 2016), available at http://www.un.org/en/peacekeeping/operations /newoperation.shtml
[6] U.N. Charter, art 25.
[7] United Nations Peacekeeping, Military: United Nations military personnel are the Blue Helmets on the ground. Today, they consist of over 90,000 military personnel contributed by national armies from across the globe, available at http://www.un.org/en/peacekeeping/issues/military/
[8] Roisin Sarah Burke, Sexual Exploitation and Abuse by UN Military Contingents: Moving Beyond the Current Status Quo and Responsibility under International Law 63 (2011).
[9] Milena Petrova, Criminal Misconduct and Sexual Offences by UN Personnel During Peacekeeping Missions: Responses and Challenges (Feb, 2015), available at http://www.beyondintractability. org/library/criminal-misconduct-and-sexual-offenses-committed-un-personnel-during-peacekeeping-missions
[10] Igor Blishchenko, International Humanitarian Law 14 (Ivan Chulaki, Progress Publisher 1989).
[11] See Id,
[12] See Article 38 of the Statute of the International Court of Justice:
1. The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply: a. international conventions,[…]; b. international custom, […],c. the general principles of law recognized by civilized nations; d. subject to the provisions of Article 59, judicial decisions and the teachings of the most high qualified publicists of the various nations, as subsidiary means for the determination of rules of law.” Statute of the International Court of Justice art 38, Apr. 18, 1946, 3 Bevans 1179, T.S. No. 993, 59 Stat. 1031.
[13] Haider, H., International Legal Framework for Humanitarian Action 14-15 (2013). GSDRC, available at http://www.gsdrc.org/topic-guides/international-legal-frameworks-for-humanitarian-action/concepts/overview-of-international-humanitarian-law/
[14] See Id.
[15] Diakonia, Sources of International Humanitarian Law (2013), IHL Resource Centre, available at https://www.diakonia.se/en/IHL/The-Law/International-Humanitarian-Law-1/Introduction-to-IHL/Sources-of-international-law/
[16] See Opinion ruris sive necessitatis as “a belief in the legally permissible or obligatory nature of the conduct in question, or of its necessity”. A. Andre Da Rocha Ferreira, Jr. et al, Formation and Evidence of Customary International Law, 1, UFRGSMUN, 190 (2013).
[17] Mark Weisburd, The International Court of Justice and The Concept of State Practice, 31:2, 300 (2009).
[18] International Committee of the Red Cross, Customary Law, available at https://www.icrc.org/en/ war-and-law/treaties-customary-law/customary-law
[19] See supra note 15.
[20] Kamrul Hossain, “The Concept of Jus Cogens and the Obligation under the U.N. Charter.” Santa Clara Journal of International Law 3 (Jan 1, 2005): 73. Jus Cogens is “compelling Law is the technical term given to those norms of general international law that are argued as hierarchically superior.”
[21] See supra note 13.
[22] United Nations Department of Peacekeeping Operations, UN Peacekeeping Background Note (2014), available at: www.un.org/en/peacekeeping/documents/backgroundnote.pdf
[23] United Nations Peacekeeping, What is peacekeeping?, available at http://www.un.org/en/ peacekeeping/operations/peacekeeping.shtml
[24] See Id.
[25] Knut Doermann, “Obligation of International Humanitarian Law”, 2 Military and Strategic Affair 4 (September 2012): 11-23.
[26] U.N. DEP’T of PKO, UN Peacekeeping Operations Fact Sheet (January, 2017), available at http://www.un.org/en/peacekeeping/documents/bnotelatest.pdf
[27] U.N. DEP’T of PKO & DEP’T of FS, United Nations Peacekeeping Operations: Principles and Guidelines at 9, (Jan. 18, 2008).
[28] Kai Michael Kenkel, Five Generations of peace operations from the “thin blue line” to “painting a country blue” 123-125 (2013).
[29] See Id, at 126.
[30] See Id.
[31] United Nations Truce Supervision Organization, UNTSO Background, available at http://www.un.org/en/peacekeeping/missions/untso/background.shtml
[32] See supra note 25.
[33] Peter J Atkins, Food Security, Safety and Crises 69 (2012).
[34] See supra note 25.
[35] See Id.
[36] See supra note 25.
[37] See Id.
[38] Timo Pelz & Volker Lehmann, the Evolution of UN Peacekeeping (1): Hybrid Missions 2 (2007).
[39] See supra note 25.
[40] African Union/United Nations Hybrid Operation in Darfur, UNAMID Mandate, available at http://www.un.org/en/peacekeeping/bmissions/unamid/mandate.shtml
[41] See Article 7 of the UN Charter provides: “1. there are established as principle organs of the United Nations […] Trusteeship Council, an International Court of Justice and a Secretariat.
2. Such Subsidiary Organs as may be found necessary may be established in accordance with the present Charter.” See supra note 6, art 7, ¶ 2.
[42] United Nations Peacekeeping Operations, United Nations Force Headquarters Handbook 8 (2014).
[43] “Host state is also known as a Host Country which refers to the country in which the UN Peacekeepers are being sent to or serving.” Convention on the Safety of United Nations and Associated Personnel art 1, Dec. 4, 1994, 2051 U.N.T.S. 363.
[44] United Nations Peacekeeping, Forming a New Operation, available at http://www.un.org/en/peacekeeping/operations/newoperation.shtml
[45] Nikolai Wessendorf, The Charter of the United Nations: A Commentary (2nd edition Oxford University Press, Oxford 2002), at 687-688.
[46] Finn Seyersted, United Nations Forces, Some Legal Problems 351 (1961).
[47] Marten Zwanenburg, Regional Organization and the Maintenance of International Peace and Security: Three Recent Regional African Peace Operations, 11 Journal of Conflict & Security Law 483 (2006).
[48] James W. Houck, The Command and Control of United Nations Forces in the Era of “Peace Enforcement”, Journal of Comparative and International Law (1993), at 26.
[49] United Nations, Office of the High Commissioner, Women’s Rights are Human Rights 3, Sales No. E.14.XIV.5 (2014).
[50] See supra note 6, art. 1, ¶ 3.
[51] Milena Sterio, The Evolution of International Law, 31 B.C. Int’l & Comp. L. Rev. 213 (2008), available at http://lawdigitalcommons.bc.edu/iclr/vol31/iss2/3
[52] Muna Ndulo, The United Nations Responses to the Sexual Abuse and Exploitation of Women and Girls by Peacekeepers During Peacekeeping Missions 6 (2009). Cornell Law Faculty Publication. Paper 59.
[53] See Id.
[54] World Conference on Human Rights, Vienna Declaration and Programme of Action, ¶ 18 & 60, U.N. Doc. A/CONF.157/23 (July 12, 1993)
[55] S.C. Res. 1325, ¶ 8 & 37, U.N. Doc. S/RES/1325 (Oct 31, 2000).
[56] S.C. Res. 1820, U.N. Doc. S/RES/1820 (June 19, 2008).
[57] See supra note 28, at 134.
[58] Antoine A. Bouvier, International Humanitarian Law and the Law of Armed-Conflict (Harvey J. Langholtz ed., Peace Operations Training Institute 2012) (2000).
[59] See Id, At 138.
[60] Press Release, General Assembly, Addressing Sexual Exploitation, Abuse Cases Involving Peacekeepers Requires Swift Accountability, Decisive Action, Speakers Tell General Assembly, U.N. Doc. GA/11810 (Sep. 7, 2016)
[61] Jenna Stern, Reducing Sexual Exploitation and Abuse in UN Peacekeeping: Ten Years After the Zeid Report 7 (2015).
[62] See “Vulnerable Groups may include Children, Women, Internally Displaced Persons (IDPs)/refugees, and Indigenous people. However, No Universal definition of the concept of vulnerable groups, especially in the conflict setting, and a condition of vulnerability may exist prior to a conflict or crisis, or may be generated by those situations”. Carmen Marquez Carrasco, Jr. et al, Human Rights Violations against Vulnerable Groups in Violent Conflict-Settings (Sep. 29, 2014)
[63] Bruce Oswald, Jr. et al, Documents on the Law of UN Peace Operations 432 (2010), See also U.N. Secretary-General (UNSG), Secretary-General’s Bulletin: Special Measure for Protection from Sexual Exploitation and Sexual Abuse, § 1, U.N. Doc. ST/SGB/2003/13, (Oct 9, 2003).
[64] United Nations Conduct and Discipline Unit, Sexual Exploitation and Abuse Policy, available at https://cdu.unlb.org/Policy/SexualExploitationandAbusePolicy.aspx (last accessed Dec 23, 2016).
[65] United Nations Office on Drugs and Crime, Handbook on Effective police responses to violence against women 7, Sale No. E.10.IV.3 (2010).
[66] U.N. Secretary-General (UNSG), Secretary-General’s Bulletin: Special Measure for Protection from Sexual Exploitation and Sexual Abuse, § 3, ¶ 3.2, U.N. Doc. ST/SGB/2003/13, (Oct 9, 2003). [hereinafter the 2003 bulletin]
[67] See “Sex Trade” is the “Activities that involve providing sexual service for money, such as prostitution (=selling sex). Cambridge Dictionary (2016), available at http://dictionary.cambridge .org/dictionary/english/sex-trade.
[68] Humanitarian Assistance may be “a major provider of emergency relief and longer-term assistance, including food, shelter, medical supplies and logistical support, primarily through its operational agencies, and a catalyst for action by Governments and other relief agencies.”. Office for the Coordination of Humanitarian Affair (OCHR), Humanitarian Assistance and Assistance to Refugees, Sale No. E.98.I.20 (May 21, 1999).
[69] BBC Media Action, Country Case Study: Cambodia, Support to Media where media freedoms and rights are constrained 2 (2012).
[70] Milton Leitenberg, Death in Wars and Conflicts in the 20th Century 9 (2006).
[71] Randle C. Defalco, Justice and Starvation in Cambodia: The Khmer Rouge Famine 46 (2014).
[72] Judy L. Ledgerwood, UN Peacekeeping Missions: The Lessons from Cambodia, 11 Analysis from the East-West Center, 3 (1994).
[73] See Id.
[74] See Id.
[75] Hayley Lopes, Sexual Violence and Exploitation of Local Women by UN Peacekeepers: Addressing Militarized Masculinity (Conflict Research Centre, Working Paper No. 8, 2013).
S.C. Res. 2098, U.N. Doc. S/RES/2098 (March 28, 2013)
[76] Sandra Whitworth, Men, Militarism, and UN Peacekeeping: A Gendered Analysis 67 (2004)
[77] Grant Curtis, Transition to What? Cambodia, UNTAC, and The Peace Process, United Nations Research Institute for Social Development 11 (1993).
[78] See Supra note 71, at 12.
[79] UN Women, Sexual Exploitation and Abuse – A Summary of the latest policy, Inputs for the High-level Independent Panel on Peace Operations (2015)
[80] See Supra note 70.
[81] See Supra note 66, § 1.
[82] Rebecca Pirius, Criminal Statutes of limitations, Research Department: Minnesota House of Representative 2 (2016).
[83] Alnowaiser, Legal Concepts: The Principle of Non-Retroactivity of Law (May 2016), available at http://www.alnowaiserlaw.com/en/legal-concepts-principle-non-retroactivity-law
[84] Catalina Lopez Salva, Sexual Exploitation and Abuse by UN peacekeepers: Calling into question solution implemented 6-7 (May 7, 2015)
[85] Machiko Kanetake, The UN Zero Toerance Policy’s Whereabouts: on the Discordance Between Politics and Law on the Internal-External Divide 52 (2012)
[86] Suk Chun, Sexual Exploitation and Abuse by UN Peacekeepers (International Peace Research Institute, Oslo (PRIO) 2009).
[87] See Id.
[88] G.A Res. 57/306, Section 2, ¶ 2.1, U.N. Doc. A/RES/57/306 (Oct. 9, 2013).
[89] Haidi Willmot & Scott Sheeran, The protection of civilian mandate in UN peacekeeping operations: reconciling protection concepts and practices 517-518 (International Review of the Red Cross, 2013).
[90] See supra note 49.
[91] See supra note 60, ¶ 2.2, pursuant to section 7 of Secretary-General’s bulletin ST/SGB/1999/13, entitled “Observance by United Nations forces of International humanitarian Law” .
[92] MADRE, Speaking Out on Women, Peace and Security at the UN, available at https://www.madre.org/press-publications/human-rights-report/speaking-out-women-peace-and-security-un
[93] See Article 46 of the Hague Convention: “Art. 46. Family honours and rights, individual lives and private property, as well as religious convictions and liberty, must be respected. Private property cannot be confiscated”. Convention (IV) respecting the Laws and Customs of War on Land and its annex: Regulation concerning the Laws and Customs of War on Law, the Hague art 46, Oct. 18, 1907.
[94] Australian Red Cross, Gender, Armed Conflict and Humanitarian response, International Humanitarian Law Magazine, 2014, at 4.
[95] See Article 51, ¶ 3: “Civilians shall enjoy the protection afforded by this section, unless and for such time as they take a direct part in the hostilities.”. Additional Protocol to the Geneva Convention of 12 August 1949, Relating to the Protection of Victims of International Armed Conflicts art 51, ¶ 3 , June, 8, 1977, 1991 A.T.S No. 29, 1125 U.N.T.S 3, 16 I.L.M 1391.
[96] Geneva Convention Relative to the Protection of Civilian Persons in Time of War, art 27, ¶ 1 & 2, Aug 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287.
[97] See supra note 9.
[98] Convention on the Rights of the Child art 34, Nov. 20, 1989, 1577 U.N.T.S.3.
[99] Jean Pictet, Humanitarian Law and the Protection of War Victims 123 (1975).
[100] The Second Geneva Convention of 12 August 1949, For The Amelioration of the Condition of the Wounded and Sick in Armed Forces In the Field, June, 8, 1977, Article 12, ¶ 4, 6 U.S.T. 3516, 75 U.N.T.S. 287.
[101] The 1949 Geneva Convention art 27, ¶ 2, Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287.
[102] Document on the Laws of War, 721 (A. Roberts & R. Guelff, eds., 3rd. ed, Oxford:Oxford University Press, 2000)
[103] Icrc.org, Customary International Humanitarian Law: Roundtable Reports, 22 (F. Barnaby et al, eds., 2008)
[104] International Committee of the Red Cross (ICRC), How is the Term “Armed Conflict” defined in International Humanitarian Law? 1 (March, 20088`8).
[105] The 1949 Geneva Convention art 2, ¶ 1&2, 6 U.S.T. 3516, 75 U.N.T.S. 287.
[106] See Article 42 of the United Nations provided that: “ Should the Security Council consider that measure provided for in Article 41 would be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations.”, U.N Charter, art 42.
[107] Igor Blishchenko, supra note 2, at 97.
[108] The General Assembly, Model Status of Force Agreement of Peacekeeping Operations, G.A. Res. 45/594, U.N. Doc. A/RES/45/594 (Dec. 9, 1990).
[109] William Thomas Worster, “Immunities of United Nations Peacekeepers in the Absence of a Status of Force Agreement”, In Military Law and the Law of War Review 47 (2008): 277-375.
[110] Scott Sheeran, ET AL., UN Peacekeeping and The Model Status of Force Agreement, School of Law and Human Rights Centre (August, 2010).
[111] See Article 7 (a) of the agreement provided that: “The United Nations shall ensure that UNAMIR (United Nations Assistance Mission for Rwanda) shall conduct its operations in Rwanda with full respect for the principles and spirit of the general conventions applicable to the conduct of military personnel. These International Conventions include the four Geneva Conventions of 12 August 1949 and their additional Protocol of 8 June 1977 and the UNESCO Convention of 14 May 1954 on the Protection of Cultural Property in the event of the armed conflict”,Agreement on the Status of the United Nations Assistance Mission for Rwanda (UNAMIR) art 7(a), 1993.
[112] The Convention on the Safety of United Nations and Associated Personnel art 20, Dec. 4, 1994, 2051 U.N.T.S. 363.
[113] See Article 8 of the Convention on the Safety of United Nations and Associated Personnel provided that: “Except as otherwise provided in an applicable status-of-force agreement, […] Pending their release such personnel shall be treated in accordance with universally recognized standards of human rights and the principles and spirit of the Geneva Convention of 1949”, See Id, art 8.
[114] International Committee of the Red Cross (ICRC), Meeting of the intergovernmental group of experts for the Protection of War Victims, No. 304 (February 28, 1995), available at https://www.icrc.org/eng/resources/documents/article/other/57jmbm.htm
[115] See Section 1 of the 2003 Bulletin provided: “The Fundamental Principle and rules of International Humanitarian Law set out in the bulletin are applicable to the United Nations forces when in situation of armed conflict they are actively engaged therein as combatants, to the extent and for the duration of their engagement. They are accordingly applicable to enforcement actions, or in peacekeeping operations when the use of force is permitted in self-defence.”. The Secretary General, Special Measures for Protection from sexual exploitation and sexual abuse, U.N. Doc. ST/SGB/2003/13 (Oct. 9, 2003)
[116] Daphna Shraga, The Applicability of International Humanitarian Law to peace operations from rejection to acceptance, international humanitarian law, human rights and peace operations 90, 94 (2008).
[117] See Id.
[118] United Nations Secretariat, The Bulletin on the Observance by United Nations Forces of International Humanitarian Law, U.N. Doc. ST/SGB/1999/13, § 4 (Aug. 6, 1999).
[119] Carla Ferstman, Criminalizing Sexual Exploitation and Abuse by Peacekeepers, UNITED STATES INSTITUTE OF PEACE (2013): at 4-5.
[120] Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion, 1949 I.C.J. 117.
[121] See, e.g., Agreement on the Status of the United Nations Assistance Mission for Rwanda provided that the U.N. “shall conduct its operations in Rwanda with full respect for the principles and spirit of the general convention, applicable to the conduct of military personnel. These international conventions include the four Geneva Conventions of 12 August 1949 and their Additional Protocol of 8 June 1977.”. Agreement on the Status of the United Nations Assistance Mission for Rwanda, Nov. 5, 1993, 1748 U.N.T.S. 257.
[122] Christopher Greenwood, International Humanitarian Law and United Nations Military Operations, 1 Y.B. OF INT’L HUMANITARIAN LAW 3 (1998)
[123] Leslie C. Green, The Contemporary Law of Armed Conflict 85-86 (1993).
[124] Article 50 addition protocol to the Geneva Convention 1949 provided that “a civilian is a person who belongs neither to the category of prisoners of war nor that of a member of the armed forces of a party to the conflict.”. Additional Protocol to the Geneva Convention of 12 August 1949, Relating to the Protection of Victims of International Armed Conflicts art 50, June, 8, 1977, 1991 A.T.S No. 29, 1125 U.N.T.S 3, 16 I.L.M 1391.
[125] Natalia Perova, The United Nations, Member States and Individuals Sharing International Responsibility for Serious Violations of International Law Committed During Peace Support Operations 121 (August, 2014).
[126] See Supra note 101, art 3.
[127] See Article 37 (d) of the Geneva Convention provided that: “d) the feigning of protected status by the use of signs, emblems or uniforms of the United Nations or of neutral or other States not Parties to the conflict.”. The 1949 Geneva Convention art 37, ¶ d, Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287.
[128] The Third Geneva Convention art 4, Aug. 12, 1949, 1958 A.T.S No. 21, 75 U.N.T.S. 135.
[129] See Article 9 of the Convention on the Safety of United Nations and Associated Personnel: “1. The intentional commission of:
(a) A murder, kidnapping or other attack upon the person or liberty of any United Nations or associated personnel;
(b) A violent attack upon the official premises, the private accommodation or the means of transportation of any United Nations or associated personnel likely to endanger his or her person or liberty;”. The Convention on the Safety of United Nations and Associated Personnel art 9, Dec. 4, 1994, 2051 U.N.T.S. 363.
[130] See Supra note 118, §1.
[131] See Supra note 118, §2.
[132] Ola Engdahl, Protection of Personnel in Peace Operations: The Role of the ‘Safety Convention’ against the Background of General International Law 29 (Leiden, Boston: Martinus Nijhoff, 2007).
[133] Dieter Fleck, The Legal Status of Personnel involved in United Nations Peace Operations, International Review of the Red Cross 95, 891/892 (2013): at 614.
[134] See Rule 33 of the Customary International Humanitarian Law provided that: “personnel and objects involved in a peacekeeping operations . . . as long as they are entitled to the protection given to civilians and civilian objects under international humanitarian law[…]”. The Customary IHL, rule 33, available at https://ihl-databases.icrc.org/customary-ihl/eng/docs/v1_rul_rule33
[135] Department of Peacekeeping Operations, United Nations Peacekeeping Operations: Principles and Guidelines 92 (2008).
[136] See Id, at 33
[137] See Id.
[138] See Id.
[139] United Nations Conduct and Discipline Unit, Ten Rule: Code of Personnel Conduct for Blue Helmets (1998).
[140] Annex F of the Special Committee on Peacekeeping Operations and its Working Group on the 2007 resumed session refer to “Sexual Abuse means the actual or threatened physical intrusion of a sexual nature, whether by force or under unequal or coercive conditions […] Sexual Exploitation means any actual or attempted abuse of a position of vulnerability, differential power or trust for sexual purposes, including, but not limited to, profiting monetarily, socially or politically from the sexual exploitation of another.”, United Nations General Assembly, Revised draft model memorandum of understanding, U.N. Doc. A/C.5/66/8, Annex F, ¶ 33 & 34 (Oct. 27, 2011).
[141] See supra note 9.
[142] See Supra note 119.
[143] S.C. Res. 1279, U.N. Doc. S/RES/1279 (Nov 30, 1999).
[144] Devon Whittle, Peacekeeping in Conflict: The Intervention Brigade, MONUSCO, and The Application of International Humanitarian Law to United Nations Forces, 46 Associate Professor Bruce Oswald. 837, 842 (2015).
[145] Ted Dagne, The Democractic Republic of Congo: Background and Current Developments, 7-5700 Cogressional Research Service. 2 (Sept 1, 2011).
[146] United Nations, MONUSCO background, United Nations Organization Stabilization Mission in the Democratic Republic of the Congo, available at http://www.un.org/en/peacekeeping /missions/monusco/background.shtml
[147] ICRtoP.org, Crisis in the Democratic Republic of Congo, International Coalition for the Responsibility to Protect, available at http://www.responsibilitytoprotect.org/index.php /crises/crisis-in-drc
[148] See Supra note 123.
[149] See Id.
[150] See Supra note 121.
[151] See Supra note 125.
[152] See Infra note 160
[153] See Infra note 162.
[154] Julie Reynaert, MONUC/MONUSCO and Civilian Protection in the Kivus 19 (2012).
[155] S.C. Res. 1925, U.N. Doc. S/RES/1925 (May 28, 2010).
[156] Cathy Nangini, et al, Visualizing Armed Group: The Democratic Republic of the Congo’s M23 in Focus, 3 Stability: International Journal of Security & Development, 5 (2014).
[157] See Id.
[158] United Nations, Background Information on the Responsibility to Protect, Outreach Programme on the Rwanda Genocide and the United Nations, available at http://www.un.org /en/preventgenocide/rwanda/about/bgresponsibility.shtml
[159] The General Assembly, Report of the International Commission on Intervention and State Sovereignty, Letter dated 26 July 2002 from the Permanent Representative of Canada to the United Nations addressed to the Secretary-General, U.N. Doc. A/57/303 (Aug. 14, 2002).
[160] Australian Red Cross, International Humanitarian Law and the Responsibility to Protect: A handbook, 11 (2011).
[161] See Id.
[162] See Id.
[163] See Id.
[164] The General Assembly, Report of the High-Level Panel on Threats, Challenges and Change, ¶ 203, Note by the Secretary-General, U.N. Doc. A/59/565 (Dec. 2, 2004).
[165] See Id.
[166] Martin Ortega, Military Intervention and the European Union 7 (Institute for Security Studies, Chaillot Papers 45, 2001).
[167] G.A Res. 60/1, ¶ 77, U.N. Doc A/RES/60/1 (Oct. 24, 2005)
[168] S.C. Res. 1674, U.N. Doc. S/RES/1674 (April 28, 2006)
[169] S.C. Res. 1706, U.N. Doc. S/RES/1706 (Aug. 31, 2006)
[170] Charles Hauss, Military Intervention, Beyond Intractability (Aug., 2003), available at http://www.beyondintractability.org/essay/military-intervention
[171] James Turner Johnson, Humanitarian Intervention, The Responsibility to Protect, and Sovereignty: Historical and Moral Reflections, 23.3 Michigen State International Law Review. 609, 610 (2015).
[172] Kolb Robert, Note on humanitarian intervention, affaires courantes et commentaires current issues and comments 120 (March 2003).
[173] See Id.
[174] See Id.
[175] Francesco Francioni & Christine Bakker, Responsibility to Protect, Humanitarian Intervention and Human Rights: Lessons from Libya to Mali 2-3 (Transworld, Working Paper No. 15, 2013).
[176] S.C. Res. 2098, U.N. Doc. S/RES/2098 (March 28, 2013)
[177] Scott Sheeran & Stephanie Case, the Intervention Brigade: Legal Issue for the UN in the Democratic Republic of the Congo, International Peace Institute, 2 (2014).
[178] International Peace Institute, The UN Intervention Brigade in the Democratic Republic of the Congo 6 (July, 2013).
[179] See Supra note 152.
[180] See Supra note 125.
[181] See “Annex H: The United Nations […] highest standards of integrity and conduct; We will comply with the Guidelines on International Humanitarian Law for Forces Undertaking United Nations Peacekeeping Operations and the applicable portions of the Universal Declaration of Human Rights as the fundamental basis of our standards.”, United Nations, Report of the Special Committee on Peacekeeping Operations and its Working Groups on the 2007 Resumed Session, Annex H U.N. Doc. A/61/19 (June 12, 2007).
[182] The ICTY has defined that “armed-conflict is as resort to armed force between States or protracted armed violence between governmental authorities and organized armed groups or between such groups in a State.”, ICTY, Prosecutor v. Tadic, Case No. IT-94-1, Decision on Defence Motion for Interlocutory Appeal on Jurisdiction, (Oct. 2, 1995) [hereinafter Tadic Case].
[183] Human Rights Watch, “You Will Be Punished”, Attacks on Civilians in Eastern Congo, 48 (2009).
[184] Small arms Survey, Down, But Not Out: The FDLR in the Democratic Republic of the Congo, 56 Small Arms Survey Research Note, 4 (2016).
[185] Ted Dagne, Supra note 123, at 7.
[186] See Id.
[187] Lindsay Scorgie, The Allied Democratic Force: Moving Beyond popular narratives, a rebel group that has existed in the Uganda-DRC borderland for close to two decades, continues to confound observers (July 27, 2013), available at http://www.aljazeera.com/indepth/opinion/2013/07 /201372215812878743.html
[188] Conor Gaffey, DR Congo: What is the ADF, The Uganda Rebel Group Hacking Civilian to Death? (Feb. 12, 2015), at http://www.newsweek.com/dr-congo-who-are-adf-ugandan-rebels-hacking-civilians-death-399889
[189] Global Security, Allied Democratic Forces, National Army for the Liberation of Uganda (NALU), Armee Nationale De Liberation De L’ouganda, Force Democratiques Alliees, Islamic Alliace of Democratic Forces, available at http://www.globalsecurity.org/military /world/para/adf.htm
[190] Jason Stearns, From CNDP to M23, The Evolution of an armed movement in eastern Congo, 25 (2012)
[191] Human Rights Watch, Democratic Republic of the Congo 2012 Human Rights Report, United State Department of State, 12 (2012).
[192] See Supra note 105, art 3.
[193] The Security Council, Letter dated 12 November 2012 from the Chair of the Security Council Committee established pursuant to resolution 1533 (2004) concerning the Democratic Republic of the Congo Addressed to the President of the Security Council, ¶ 4, U.N. Doc S/2012/843 (Nov. 15, 2012).
[194] See Supra note 151.
[195] See Supra note 94, Section 1.1.
[196] See Id.
[197] S.C. Res. 1925, U.N. Doc. S/RES/1925 (May 28, 2010)
[198] United Nations, Report of the Secretary General on the United Nations Organization Stabilization Mission in the Democratic Republic of the Congo, U.N Doc. S/2012/355, ¶ 16 (May. 23, 2012)
[199] See Supra note 106.
[200] See Supra note 94, Section 1.
[201] Al Jazeera, Congo and the General, People & Power goes behind the scenes with UN peacekeepers who are shifting their rules of engagement in the DRC Congo (Feb. 6, 2014), available at http://www.aljazeera.com/programmes/peopleandpower/2014/01/congo-general-2014131116336818.html
[202] Muna Ndulo, Supra note 47, at 142.
[203] See Id.
[204] Office of Internal Oversight Services (OIOS), Evaluation Report of the Enforcement and Remedial Assistance Efforts for Sexual Exploitation and Abuse by the United Nations and Related Personnel in Peacekeeping Operations, Inspection and Evaluation Division 4 (May 15, 2015).
[205] Conduct in UN Field Mission, Sexual Exploitation and Abuse (2017), available at https://conduct.unmissions.org/sea-overview
[206] The Secretary-General, Investigation by the Office of Internal Oversight Service into allegation of sexual exploitation and abuse in the United Nations Organization Mission in the Democratic Republic of the Congo, U.N. Doc. A/59/661, 5 (Jan. 5, 2005).
[207] See Id.
[208] Human Rights Watch, Central Africa Republic: Rape by Peacekeepers (Feb. 4, 2016), available at https://www.hrw.org/news/2016/02/04/central-african-republic-rape-peacekeepers
[209] Trevor Findlay, Cambodia The Legacy and Lessons of UNTAC, 9 Stockholm International Peace Research, 150 (1995).
[210] Romy Nieuwenhuizen, Who will guard the guardians? Sexual exploitation and abuse by peacekeepers: focus on the Democratic Republic of the Congo, Victomology and Criminal Justice 17 (2013).
[211] See Id.
[212] See Id.
[213] Marleen Bosmans, Challenges in Aid to Rape Victims: the case of the Democratic Republic of the Congo, 4 Essex Human Rights Review 6 (2007).
[214] See Section 3 para 3.2 (b) provided that: “In order to further protect the most vulnerable populations, especially women and children, the following specific standards which reiterate existing general obligations under the United Nations Staff Regulations and Rules, are promulgated: […](b) Sexual activity with children (persons under the age of 18) is prohibited regardless of the age of majority or age of consent locally. Mistaken belief in the age of a child is not a defence; […]”. The Secretary General, Special Measures for Protection from sexual exploitation and sexual abuse, U.N. Doc. ST/SGB/2003/13 (Oct. 9, 2003).
[215] Gerald Caplan, Peacekeepers gone wild: How much more abuse will the ignore in Congo?,Special to the Globe and Mail (Aug. 3, 2012).
[216] S.C. Res. 1925, U.N. Doc. S/RES/1925 (May 28, 2010)
[217] See Supra note 87, ¶ 47 (b), at 12.
[218] Kirsti Lattu, To Complian or not to complain: Still the Question, Humanitarian Accountability Partnership 32 (2008).
[219] Corinna Csaky, No One to Turn to: The under-reporting of Child Sexual Exploitation and Abuse by Aid workers and Peacekeepers, Save the Children Fund 13 (2008).
[220] See Id.
[221] See Id.
[222] See Supra note 204, at 11.
[223] See Supra note 184.
[224] See Id, at 15.
[225] Carol Allais, Sexual Exploitation and Abuse by UN peacekeepers: The Psychosocial Context of Behavior Change, 39 South African Journal of Military Studies 6 (2011).
[226] See Supra note 60, Section 3, p 2.
[227] See Supra note 62.
[228] Allais, Supra note 226, at 6.
[229] Nieuwenhuizen, Supra note 210, at 19.
[230] The General Assembly, Comprehensive Review of the whole question of peacekeeping operations in all their aspects, letter dated 24 March 2005 from the Secretary General to the President of the General Assembly, U.N. Doc. A/59/710 (March 24, 2005).
[231] See Id.
[232] S.C. Res. 2272, U.N. Doc. S/RES/2272 (March 11, 2016).
[233] The General Assembly, Special measure for Protection from Sexual Exploitation and Abuse: a new approach, Report of the Secretary-General, U.N. Doc. A/71/818 (Feb. 28, 2017).
[234] Department of Peacekeeping Operations, Civil Affairs Handbook at 22-23, U.N. Sale No. E.12.VII.2 (2012).
[235] See Supra note 122, at 6.
[236] U.N. Charter, art 101.
[237] United Nations, Human Rights Screening of United Nations Personnel, United Nations Policy 3 (Dec. 11, 2012).
[238] Sarah Martin, Must Boys Be Boys?: Ending Sexual Exploitation and Abuse in UN Peacekeeping Missions, Refugees International, 27 (2005).
[239] Kelly Neudorfer, Sexual Exploitation and Abuse in UN Peacekeeping: Analysis of Risk and Prevention Factors, 1 (2015).
[240] BBC News, Female Peacekeepers Reach Liberia: The first all-female Unit of the United Nations has arrived in Liberia’s Capital, Monrovia, (Jan. 30, 2007), available at http://news.bbc.co.uk /go/pr/fr/-/2/hi/Africa/6314263.stm.
[241] See Supra note 108, ¶ 47 (b), at 12.
[242] See Supra note 108, ¶ 47 (b), at 12.
[243] Kim R. Holmes, Statement on United Nations Organization Mission in the Democratic Republic of the Congo (MONUC) and Peacekeeping Reform before House of Representative International Relations Committee (Mar. 1, 2005), available at http:/www.state.gov/p/io/rls/rm/42982.htm.
[244] Amnesty International.org, The Time for Justice is Now: New Strategy Needed in the Democratic Republic of the Congo 6 (2011).
[245] UN General Assembly, Rome Statute of the International Criminal Court, art 5, 17 July 1998, available at http://www.refworld.org/docid/3ae6b3a84.html
[246] Markus Benzing, The Complementarity Regime of the International Criminal Court: International Criminal Justice Between State Sovereignty and the Fight against Impunity, 7 Max Planck Yearbook of United Nations Law. 591, 598 (2003).
[247] The Secretary General, Ensuring the accountability of United Nations Staff and Experts on Mission with Respect to Criminal Acts Committed in Peacekeeping Operations, delivered to the General Assembly, Annex III, art 3, U.N. Doc. A/60/980 (Aug. 16, 2006).
Cite This Work
To export a reference to this article please select a referencing stye below:
Related Services
View all
Related Content
All TagsContent relating to: "Human Rights Law"
Human Rights are protected by international law. Human Rights are the rights and principles that each and every individual is entitled to throughout their life.
Related Articles
DMCA / Removal Request
If you are the original writer of this dissertation and no longer wish to have your work published on the UKDiss.com website then please: