Melbourne Law School - Theses
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ItemSexual exploitation and abuse by UN military contingents: moving beyond the current status quo and responsibility under international law( 2012)Sexual Exploitation and Abuse (SEA) continues to be a problem on UN peacekeeping operations, despite relatively expansive efforts that have been taken to tackle it at UN level. Such conduct is particularly grave given that these peacekeepers have been sent to protect the civilian populations of host states. Sexual crimes by UN troops breach the relationship of trust between these personnel and the host population. Such conduct undermines the credibility of UN missions and international peace and security. Moreover, SEA also may have insidious effects on victims, in particular children. There are several categories of UN peacekeeping personnel, each with a different legal status. This thesis is solely concerned with the largest component of UN operations, namely UN military contingent (UMC) personnel. These personnel are rarely held to account for even serious incidents of SEA, given that they are granted immunity from criminal prosecution in the host State by a plethora of legal instruments, in addition to the reluctance of some troop contributing countries (TCCs) to prosecute, which lends to a culture of impunity. The thesis aims to identify current legal, conceptual and practical impediments to tackling SEA by UMC personnel, through an appraisal of the responsibility framework as it currently stands and UN reforms and initiatives aimed at tackling it to date. In concluding that the current system for holding UMC personnel alleged to have perpetrated SEA to account remains inadequate, the thesis questions what might be the alternatives to current practice. SEA it is argued may give rise to the responsibility of individuals, TCCs and/or the UN. The thesis considers whether such conduct can be considered a violation of international humanitarian law, human rights law and/or international criminal law, and what this might mean in terms of state, UN and/or individual responsibility. It explores some of the difficulties with applying these legal regimes in the context of SEA by UMC personnel. The thesis considers whether international or internationalized courts might play a role in holding UMC personnel to account for serious incidents of SEA, or whether some other mechanism might be more effective. In doing it reflects on the possible value of internationalized prosecutions of UMC personnel perpetrating such offences. This thesis, however, takes the position that states or TCCs are as much a part of the problem in addressing SEA by UMC personnel as the individuals themselves. All too often they have proven reluctant to effectively investigate criminal offences perpetrated by their soldiers on UN operations, despite obligations to do so. Moreover, states remain a barrier to putting a more effective system in place and are likely to oppose any external interference with their exclusive criminal jurisdiction over their military personnel. Therefore, this thesis argues that there may be a need to look beyond individual criminal responsibility, to the possible responsibility of TCCs, and perhaps to a lesser extent the UN, for acts or omissions in relation to SEA by UMC personnel. It considers the possible scope of TCC and/or UN international obligations towards victims of SEA, in particular where there is a failure to take reasonable measures to prevent SEA by UMC personnel and to hold perpetrators to account. The possibility of TCCs been held responsible for the extraterritorial conduct of soldiers deployed on UN peacekeeping operations may put increased pressure on states to take their obligations to prevent and respond to SEA by UMC personnel more seriously, and possibly open some avenues for victims to claim some form of redress.