Routledge Handbook of Human Trafficking

by Piotrowicz, Ryszard; Rijken, Conny; Uhl, Baerbel Heide

  Since the publication of the Zaid Report in 2005,47 the UN has adopted a series of instruments48 and some initiatives have been taken, mainly involving administrative and disciplinary consequences for personnel considered responsible for sexual abuses.49 In 2007, the General Assembly adopted a resolution that asked for “assistance to victims of sexual exploitation and abuse by United Nations staff and related personnel”,50 which was followed by implementation measures adopted by the UN Secretary-General.51 They include the obligation of assistance, by the UN and contributing States, to women and girls who have been victims of sexual abuse and exploitation. However, there is no clear exposition of the link with THB (and possible responsibility) of the UN in these cases.

  UN missions are supposed to protect the civilian population from abuses by parties involved in the local conflict. Furthermore, it is established that “[t]he SRSG [Special Representative of the Secretary-General] or Head of the peace-keeping operation shall ensure that all staff of the operation – whether military or civilian – are aware of, and abide by, international human rights and humanitarian law standards”.52

  Exploitation through sexual abuse and violence by peacekeepers was addressed in 2002 by the then UN Secretary-General, Kofi Annan:

  Sexual exploitation and abuse by humanitarian staff cannot be tolerated. It violates everything the United Nations stands for. Men, women and children displaced by conflict or other disasters are among the most vulnerable people on earth. They look to the United Nations and its humanitarian partners for shelter and protection. Anyone employed by or affiliated with the United Nations who breaks that sacred trust must be held accountable and, when the circumstances so warrant, prosecuted.53

  This approach was further supported by a series of Security Council resolutions,54 by the DPKO,55 and by the next Secretary-General, Ban Ki Moon, and is often referred to as a ‘zero-tolerance’ policy.56 However, the measures and outcomes in the last ten years have been more in relation to disciplinary and administrative sanctions for PKO personnel, which have resulted in very few prosecutions and effective remedies for the victims of these abuses. France, for example, has reportedly imprisoned one of its peacekeepers for filming himself having sex with children; while Morocco, Nepal, Pakistan, South Africa, and Tunisia have announced disciplinary action against some of their peacekeepers.57 If it is important to preserve the presumption of innocence in relation to alleged perpetrators, it is also true that the victims of abuses, their families, and local societies need to know what happens in relation to the prosecution of the crimes to which they have been subjected.

  Individual accountability of peacekeepers

  The problem of effective prosecution derives from the different legal status and regimes applicable to individuals who are deployed in PKOs.58 The Zaid Report pointed out the possible problem that different legal rules applicable to personnel involved in PKOs may create situations which allow legal gaps in terms of effective prosecution, and which result in some sort of impunity. This may occur, in particular, when individuals are subject to their national authorities’ exclusive criminal jurisdiction, as in the case of military personnel and individuals deployed under Memorandums of Understanding (MoU), which are traditionally signed between the UN and the contributing States,59 and on the basis of Paragraph 47(b) of the UN Model Status of Forces Agreement (SOFA), which provides that:

  Military members of the military component of the United Nations peacekeeping mission 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 [the host country or territory].60

  These limitations of jurisdiction are often used by States to ensure full control over their nationals deployed abroad. However, little if no action at all is taken by sending States in effectively prosecuting their nationals who are allegedly responsible for abuses in PKOs. Similar problems occur with UN personnel, as the UN system has no judicial structures to prosecute individuals allegedly responsible for criminal acts. The loopholes and weaknesses in these rules lead to effective impunity.61

  While the problems have been identified, the solutions have been quite inadequate or, at least, their implementation has not received sufficient attention from States. Proposals for amendments of the SOFA have been suggested,62 to make clearer the responsibilities of all parties involved in PKOs. However, there are no effective remedies for the victims, as most of the required actions are still left to the goodwill of States. Proposals to address the immunities of individuals engaging in sexual abuse and crimes have also been suggested.63 In 2008, the UN Secretary-General published a report on criminal measures and the possible role of national legislation in addressing the prosecution of individuals deployed by the UN.64 The report identified problems in relation to the criminalisation and prosecution of activities by nationals abroad or working as international civil servants,65 and the need to develop better forms of co-operation in criminal matters66 between the UN system and States contributing personnel to PKOs.

  A Draft Convention on the Criminal Accountability of UN Officials and Experts on Mission includes explicit recognition of the right (and obligation) of States, other than the countries of origin of the officials, to exercise jurisdiction over crimes committed in peacekeeping operations.67 In his 2013 report, the UN Secretary-General reiterated the Group of Legal Experts’ 2006 report on ensuring the accountability of UN staff and experts on mission with respect to criminal acts committed in peacekeeping operations, and supported the idea of an international convention on criminal accountability of UN personnel.68 The Draft Convention has been considered by the UN Sixth Committee, and comments by States have suggested the need to address jurisdictional gaps. However, little action has been taken, as not all States agree on the need for a treaty. Further suggestions have been made in relation to the need for effective prosecution by States, collaboration, and reporting activities by the UN Secretary-General regarding alleged abuses and follow-up activities by States.69 The appointment by the Secretary-General of a High-Level Independent Panel on Peace Operations, in October 2014,70 has partly addressed this issue,71 and recognised that in “addressing the issue of sexual exploitation and abuse in peacekeeping operations, serious deficiencies persist”.72 The resulting report73 recommends measures such as immediate response teams, which would gather and preserve evidence within 72 hours of the alleged allegation, and the request that Member States should conclude investigations on sexual abuse and exploitation cases within six months.74 However, the Panel did not include in its report any reference to the Draft Convention, probably due to the fact that the matter is already under consideration by the Sixth Committee (Legal)75 of the General Assembly, and by a Working Group established by the same Committee in 2015.76

  The provisions on individual accountability and the consequences for the perpetrators of sexual abuses should be clearly defined when individuals are sent to work in PKOs. This also requires States and the UN to adopt a more effective approach to the protection of victims than has been seen hitherto.

  Obligations to address THB

  It is well documented that when international PKOs are deployed in an area there is an increase in prostitution and the offering of sexual services. These statistics show a link between PKOs’ presence and activities related to sexual exploitation77 by criminal organisations operating in the region. As this information is available to both the UN and member States, including those which deploy personnel in PKOs, as well as the host State of the mission, the question is whether these States may also have responsibility for the exploitation of the victims. It is certainly not possible to affirm that States and the UN are willingly involved in THB. However, the fact that they do not properly address the issue, including the lack of action against their officers allegedly involved in the exploitation of victims of THB, and the inadequate protection and remedies for the victims, may imply some kind of responsibility. In this sense, it is necessary to consider cert
ain aspects of the law relating to THB, as well as IHRL and IHL.

  The question arises whether the UN and other IOs, individual States involved in PKOs, as well as the host countries where PKOs are deployed, may have obligations in relation to the implementation of the Palermo Protocol.

  This issue has not been seriously addressed by UN reports, and only recently has there been more reference to the links between sexual services, prostitution, THB, and violation of international human rights and humanitarian law standards. The UN seems to focus on individual accountability of members of PKOs, and the possible administrative and disciplinary sanctions against those individuals engaging in sexual abuses. However, it should be noted that the number of victims of THB in States in which PKOs are established is very much linked to the deployment of UN PKOs and the international presence.78 According to the International Organization for Migration (IOM), Human Rights Watch, and Amnesty International, 6–10,000 foreign women have been coerced into prostitution in Bosnia-Herzegovina, many victims of trafficking;79 major destination countries in south-east Europe included Bosnia-Herzegovina and ‘the UN administered Province of Kosovo’, as it was at the time.80 Therefore, in a way, the UN and its Member States are part of the problem when the deployment of PKOs shows an increase in the offer of commercial sexual services, which may be fuelled by THB in the areas where PKOs are acting.

  The Palermo Protocol, in Article 2, affirms the obligation to “prevent and combat” THB, especially of women and children. Under Article 3, exploitation includes, “at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation”. This raises several possible implications of responsibility for those individuals engaging in sexual activities linked to THB, especially when they are directly involved in trafficking itself.

  Article 5 requires States “to adopt such legislative and other measures as may be necessary to establish as criminal offences the conduct set forth in article 3 of this Protocol, when committed intentionally”; and Article 9(1)(a) obliges Parties to “establish comprehensive policies, programmes and other measures … [t]o prevent and combat trafficking in persons”.

  These obligations may be matched with the broader obligations under IHRL and IHL that could be applicable in the context of PKOs. For instance, forced prostitution, which is often linked to THB victims, has been equated to a form of slavery,81 which is prohibited by international law generally82 and by IHL in particular.83 States must take effective measures to suppress forced labour and provide protection to victims and access to remedies, as well as penalties for the perpetrators.84 International crimes recognised by the International Criminal Court’s Statute include, in Article 8, the unlawful deportation of individuals, outrages upon personal dignity, and sexual slavery and enforced prostitution.85 The 1999 UN Secretary-General’s Bulletin regarding IHL obligations in PKOs86 affirms that “women shall be especially protected against any attack, in particular against rape, enforced prostitution or any other form of indecent assault”,87 and children, “shall be the object of special respect and shall be protected against any form of indecent assault”.88 More generally, the 1999 Bulletin mentions the obligation to treat the civilian population with “full respect for their person, honour”, as well as the prohibition of “enforced prostitution; any form of sexual assault and humiliation and degrading treatment [and] enslavement”.89

  Therefore, there are two types of obligations for States and the UN. The first is to adopt legislation covering forces abroad when engaging directly in THB. The second is to ensure that victims of THB have access to justice and remedies in those areas under the control of PKOs. Such measures could be justified under the extraterritorial applicability of IHRL, particularly in relation to responsibility of States in cases of “tolerance, passivity, inaction and abstention” in addressing violations of human rights based on slavery.90 The obligations include the adoption of relevant criminal provisions, the appropriate investigation by national authorities,91 and the more general application of access to justice provisions that are foreseen by major human rights treaties.92

  Officers working for the UN and other international institutions and foreign governments enjoy immunity from local jurisdiction. However, if the immunities effectively exclude the possibility of redress and other remedies for victims of abuses, as recognised by Article 2(3)(a) of the ICCPR93 stating that “any person whose rights or freedoms as herein recognised are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity”,94 it could be argued that the State of origin of the officer, or the UN, is internationally responsible for breaching human rights standards. In reality, as States would not be willing to engage in international litigation involving other States, or the UN, for failure to apply international human rights obligations, there is currently little that can be done, unless the sending State prosecutes the alleged offender.

  Responses to THB

  The 2004 DPKO Policy Paper on THB identified the possible role of PKOs in tackling THB. It included the need to provide “guidance on activities to support host government national capacities to prevent and combat human trafficking where missions are mandated, and requested, to be involved in such activities”.95 It also recognised that the perception that the UN is not addressing the issue properly fosters a widespread mistrust in the role of the UN in those areas where PKOs are deployed. It affirmed that

  the perceived and actual impunity of some peacekeepers [who] have committed serious crimes, [as well as] the lack of adequate investigation and follow up by the UN and by Member States … continues to damage the reputation of UN missions.96

  The objectives suggested in the DPKO Policy Paper are:

  Awareness and Training [of individuals deployed in PKOs]

  Discipline, Accountability and Community Relations

  Support to Anti-trafficking Activities97

  Awareness and training are certainly important preventive measures. Security Council Resolution 1325 recognised “the importance of … specialized training for all peacekeeping personnel on the protection, special needs and human rights of women and children in conflict situations”. However, it is not clear who should train the peacekeepers provided by States from their regular armed forces. A 1994 General Assembly resolution98 indicated that “the training of personnel for peace-keeping operations is essentially the responsibility of Member States”.99 In a recent report, the Secretary-General stated that, from January 2016, he would “request Member States to provide certification for all uniformed personnel who have completed United Nations-specified pre-deployment training”.100 This shows that, so far, there has been little control over the training of personnel deployed in PKOs.

  However, even if the training was provided on the basis of manuals and guidelines produced by the UN, some concerns remain. For instance, a 1998 UN training manual on HIV/AIDS prevention told peacekeepers that some “men, women, or even children” in the area where they would be performing their peacekeeping missions “may have been forced into prostitution”, and that the peacekeepers “should consider carefully” whether to “support and enforce that kind of circumstance by using their services”.101 Although the manual is not available on the DPKO website, it is still circulating online, and clearly does not provide much in the way of prevention or sanctions for those engaging in sexual abuse.

  Since 1998, uniformed personnel have been provided with pocket cards of the Ten Rules: Code of Personal Conduct for Blue Helmets.102 Rule 4 states: “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”. The Ten Rules also do not mention THB. However, they are a UN internal disciplinary standard, and the UN cannot act legally against national contingents. The only option is that investigations by the UN, by the Office of Internal Oversight Services (OIOS), can be passed to the national authorities for further action against the
individual.

  As mentioned before, there is little effective deterrent to abuse: most of the individuals working under UN mandate enjoy immunity from local jurisdiction; and military officers are under the exclusive jurisdiction of the sending State,103 granted under the MoU between the sending State(s) and the UN.

  Some PKO guidelines make a stronger link between forced prostitution and possible crimes, such as THB, particularly since the adoption of the 2003 Secretary-General’s Bulletin and the publication of reports regarding sexual abuse of women and children by UN personnel.104

  A further measure has been the inclusion of more women in the different components of PKOs to improve conduct within the mission.105 This is also part of a stronger gender mainstreaming and programmes developed in armed forces more widely, and may contribute to a change of mentality, attitude, and behaviour.106

  The reality is that the UN has limited resources for investigation and prosecution of individuals who are generally subject only to the national jurisdiction of the sending State. In the case of UN officers, the UN Secretary-General could waive immunities “in any case where, in his opinion, the immunity would impede the course of justice”;107 however, this option has not been used, mainly because of the risk of unfair trials and prosecution in States where PKOs are deployed.

  With respect to military personnel, the options of the UN are limited to repatriation of the individual concerned and non-redeployment.108

  Support for anti-trafficking activities in the host State may include several actions. These activities should first of all be included in the mandate of the PKO. The UN has suggested several options, including “guidance for the detection and identification of trafficking activities in mission areas”; “materials on the approaches taken in executive and advisory missions (e.g. UNMIK/UNMISET)”; “[t]raining materials on trafficking for local police forces and judiciary”; and “[m]odel legislation and institutional arrangements for national plans of action to combat trafficking”.109 In this context, the UN could play a role in the training of local police forces in investigation of THB and related crimes, particularly in cases involving UN personnel.