AIDS-FREE WORLD'S WRITTEN SUBMISSION TO THE UK SELECT COMMITTEE ON SEXUAL VIOLENCE IN CONFLICT
Following Paula Donovan's appearance before the UK House of Lords Select Committee on Sexual Violence in Conflict on November 3, 2015, AIDS-Free World submitted supplementary written evidence on Sexual exploitation and abuse in UN peacekeeping operations to the Committee.
Topic: Sexual exploitation and abuse in UN peacekeeping operations
Summary: The UN’s own data show that the organization’s singular focus on sexual exploitation and abuse perpetrated by military peacekeeping personnel is misplaced. The problem is much more pronounced among non-military peacekeeping personnel — UN staff, experts on mission, and certain police. In raw numbers, there are more allegations levelled against the UN’s non-military personnel than against its peacekeeping soldiers each year. Since there are substantially fewer non-military personnel in every peacekeeping mission, allegations per person are proportionally far greater among those who report directly to the United Nations.
2. The UN’s early, automatic intervention in the investigative process, whether allegations are made against civilian or military personnel, introduces the potential for bias, hinders the speed and obstructs the effectiveness of criminal investigations, thereby reducing the chances of successful criminal proceedings. Moreover, the exceptionally complex, varied, and often ad hoc investigation and disciplinary procedures applied in different missions and to various categories of personnel result in a system that is challenging for UN officials to follow, and next to impossible for victims and advocates to navigate. In the majority of sexual exploitation and abuse cases reported, these systemic problems lead to a lack of criminal accountability for perpetrators of sexual violence, and a failure to ensure justice and uphold the rights of victims.
A. Data on allegations of sexual exploitation and abuse
3. As outlined during the committee hearing, there are significant concerns with the UN’s data on allegations of sexual exploitation and abuse by UN peacekeeping personnel. Given that victims of sexual violence worldwide find it difficult, unsafe, or futile to report sexual offenses to law enforcement, it would be unrealistic to assume that the allegations reported to the UN represent all or even most of the offenses committed. But the labyrinthine crime reporting structure, combined with the refusal of the UN to take responsibility for keeping victims apprised, together lead observers to deduce that under-reporting of sexual exploitation and abuse by UN peacekeeping personnel is likely to be exceptionally high. Where cases of abuse are reported, questions arise about the reliability of the UN’s information and the ability of its systems to capture and accurately present the data1.
4. In addition to these oft-cited challenges, several less visible concerns and previously unremarked double standards in the UN’s handling of its own sexual exploitation and abuse problems have been uncovered by AIDS-Free World and are being addressed through our Code Blue campaign. Select concerns are outlined below.
5. Allegations against military and non-military personnel: While many abuses are committed by military personnel, who make up the vast majority of personnel on peacekeeping missions, these do not comprise the majority of allegations. The UN’s data, as seen in the chart below, show that allegations against non-military personnel (civilian and police) averaged 52% of all allegations from 2007-2014. In 2014, 53% of allegations were against non-military personnel. It is clear that as a proportion of personnel on mission, accusations against non-military personnel are substantially higher.
Source: Data presented by AIDS-Free World, based on data from the Conduct and Discipline Unit website
*Non-military includes civilian (defined below), police, other (consultants and employees of contractors) and unknown.
**Civilian personnel includes UN staff (international and national) and volunteers, but does not include consultants and employees of contractors, as per the categorization on the CDU website. As civilian and police represent the bulk of allegations against non-military, these figures are included for illustrative purposes.
6. Number of allegations does not match number of alleged perpetrators or victims: It is a common misperception that each “allegation” reported by the UN refers to one alleged perpetrator. However, in 2014, of 51 allegations, there were at least 62 accused and 56 victims, according to the Secretary-General’s annual report, Special measures for protection from sexual exploitation and sexual abuse.3 The CDU website states that “[a]llegations are counted per individual, unless the number and/or identities of individuals have not been confirmed. In that case, allegations would be counted per incident.”4 This is one of several points that call into question the UN’s framing of a “decrease” in the number of allegations as a sign that such abuses are decreasing in frequency.
7. Moving beyond problems with the UN’s collection and presentation of data, this section outlines several concerns with the ways in which the UN’s handling of investigations into allegations of sexual exploitation and abuse runs counter to a key principle of the rule of law - an effective and impartial justice system - and hinders victims’ access to justice.
8. Members of military contingents (TCCs): “The responsibility for investigating an allegation of serious misconduct and taking subsequent disciplinary action rests with the Troop Contributing Country [TCC], in accordance with the revised model memorandum of understanding, endorsed by the General Assembly in 2007.”5 Despite the above, once an allegation has been lodged, the UN collects evidence and undertakes preliminary information-gathering. Only after the UN has conducted this preliminary investigation (which must be completed before any other actions can be taken, but for which there is no discernable timeline); once the UN has satisfied itself that the allegation is credible; and once the country of origin of the alleged perpetrator has been identified, the UN informs the relevant TCC. From that point, the TCC is given an additional 10 working days to inform the UN as to whether it is willing and able to investigate. If the TCC is willing and able, it is permitted another six months to deploy a national investigator.6 If the TCC declines to investigate or does not respond, the UN may begin the formal investigation itself.
9. Civilian personnel: The UN claims that the immunity bestowed upon civilian personnel does not apply in instances of sexual exploitation and abuse. However, current UN procedures require that when UN non-military staff are accused of violent sex-related crimes that are clearly unrelated to their official functions, local authorities are not notified until the Secretary-General has first confirmed, on a case-by-case basis, that immunity does not apply. For cases involving sexual abuse, this delay alone may remove the possibility of a successful investigation and prosecution.
10. Further concerns about the investigation process: In response to any accusation against military or civilian personnel, the UN intervenes and conducts a preliminary investigation to determine the “facts” of the case prior to turning the investigation over to the competent authorities. (The handover must occur in each case, as the UN has no legal authority to pursue criminal matters itself.) At least two important flaws stem from this process. First, it is long- and well-established that in cases of sexual violence, more than in any other violent crimes, material evidence must be collected urgently and carefully preserved in order not to prejudice the possibility of prosecution. Despite this fact, the UN intervenes before a formal investigation, often gathering initial evidence. In many cases, this evidence is collected by UN staff who are not trained investigators, and may not collect or preserve the evidence in a manner that ensures its legal admissibility in the courts with jurisdiction. Jurisdiction depends on the nationality of the accused, which may not be known at the time7, and even when known, the UN’s initial fact-finders may be unaware of or may ignore these critically important stipulations. Second, the very fact that the UN system must determine the nationality and personnel status (military or civilian) of the accused builds in delays to the investigation process. It might be difficult for the victim to know or recall the nationality and/or the personnel category of her aggressor, particularly for off-duty personnel. This places an undue burden on victims in the criminal process. Ultimately, the UN follows it own standard procedures that create intolerable and unjust delays, inserting itself into the ‘pre- investigative’ process in ways, and at a pace, that invariably works against victims and favour perpetrators. These have no bases in law, and amount to the systematic obstruction of justice.
11. Reforming investigations: While the UN is moving to implement rapid “response teams”8 to respond to concerns raised about the quality, timeliness, consistency, and impartiality of investigations, AIDS-Free World’s Code Blue Campaign holds that these teams – employed by the UN – will also obstruct victims’ basic human rights to an entirely impartial judiciary. The same is true of the move to appoint TCC “national investigation officers” to take exclusive responsibility for disciplinary investigations into alleged crimes committed by their soldiers.9
12. Status of investigations: A further concern, as alluded to above, is that the CDU website is extremely limited as a resource for tracking follow-up to allegations of sexual exploitation and abuse. The S-G’s Report provides slightly more details on the status of investigations, but as there are no case numbers listed, it is nearly impossible to identify a case from one year to the next - and many cases take more than a year to resolve. This is of concern from the perspective of victims seeking information about the follow-up to their reports of abuse, and makes it difficult for advocates and the media to track cases and press the UN and Member States regarding action.
C. Disciplinary framework and criminal jurisdiction
13. Once the investigative process, as described above, has been completed, different disciplinary authorities cover different categories of personnel. As per recent updates to the CDU website10:
● “The UN Office of Human Resources Management in the Department of Management takes decisions concerning disciplinary measures for civilian personnel.”
● “When allegations of misconduct involving military and police personnel are substantiated, the UN may repatriate the individuals concerned and ban them from future peacekeeping operations. The disciplinary sanctions and any other judicial actions remain the responsibility of the national jurisdiction of the individual involved.”
● “Members of military contingents deployed on peacekeeping missions remain under the exclusive jurisdiction of their national government…. The Troop Contributing Country involved must then report back to the UN on the outcome of misconduct investigations and actions taken.”
14. Criminal accountability framework for civilian personnel: As is made clear from the above, the UN provides little guidance in terms of the framework for criminal accountability of civilian personnel under its authority who are accused of crimes of sexual violence. As raised during our oral briefing, discussions have been underway at the UN for 9 years on a new international convention on the criminal accountability of UN officials and experts on mission to clarify the rules and procedures. This builds on a central recommendation from the Group of Legal Experts, which first proposed a convention in 2006.11 As these discussions have lagged, states have been urged to revise their criminal structures to provide for extraterritorial jurisdiction for such crimes. While this would be a welcome step, it bears reiterating that the Group of Legal experts emphasized the primacy of jurisdiction by the host state, where the crimes are committed, “as far as is possible.”12
15. Further challenges from the perspective of victims: These different channels of discipline and criminal accountability, coupled with a reliance on repatriation or dismissal, increase the difficulty of tracking the follow-up to allegations, hindering victims’ access to justice. In addition, it results in a complex system of authorities and rules that are difficult for UN staff charged with responsibility for addressing sexual exploitation and abuse to navigate. This is compounded for witnesses, victims, advocates, and journalists. Furthermore, the different potential authorities complicates the investigation process, as referred to above. It is therefore not surprising that this framework leads to many investigations being declared “unsubstantiated13,” and that even relatively thorough investigations fail to result in criminal proceedings.
1 For analysis on the problem, see the report of an independent team of experts posted on the Code Blue website, including on underreporting (p, 13), data management (p. 14) and underreporting and uncollated numbers (p. 14). Final Report: Expert mission to evaluate risks to SEA prevention efforts in MINUSTAH, UNMIL, MONUSCO, and UNMISS (“Expert Team Final Report”), 3 November 2013. http://www.aidsfreeworld.org/Newsroom/Press-%20Releases/2015/~/media/Files/Peacekeeping/2013%20Expert%20Team%20Report%20FINAL.pdf
3 Report of the Secretary-General, Special measures for protection from sexual exploitation and sexual abuse (“S-G’s Report”), A/69/779, 13 February 2015, Annex 3. http://undocs.org/A/69/779
6 Oral briefing by Diane Corner, Deputy Special Representative of the Secretary-General of the United Nations Multidimensional Integrated Stabilization Mission in the Central African Republic (MINUSCA), August 20, 2015. Video available: http://webtv.un.org/watch/diane-corner-minusca-on-the-situation-in-the-%20central-african-republic-%E2%80%93-press-conference/4434844731001
7 Expert Team Final Report, pp. 3 & 12
8 S-G’s Report, A/69/779, paragraphs 44-46
9 S-G’s Report, A/69/779, paragraph 49
11 Report of the Group of Legal Experts on ensuring the accountability of United Nations staff and experts on mission with respect to criminal acts committed in peacekeeping operations [“Group of Legal Experts”], A/60/980, 16 August 2006. http://undocs.org/A/60/980
12 Report of the Group of Legal Experts, A/60/980, paragraph 27
13 Expert Team Final Report, p. 3
(The original version of this written evidence was submitted on November 13, 2015 and published on the UK Parliament website on December 2, 2015. The version that appears above has been reformatted for the Code Blue website).
(Photo: UN Photo/Marie Frechon)