In March 2021, a local Haitian court in the coastal town of Jacmel delivered a landmark ruling ordering a United Nations (UN) peacekeeper to pay 350,000 Haitian gourdes (around 3,636 euros) in monthly child support to the mother of the child he fathered and abandoned in 2011 while serving for the UN Peacekeeping Mission in Haiti (MINUSTAH).
The woman in question was one of likely a number of women assaulted, impregnated, and abandoned by troops and members of MINUSTAH. The concrete number of victims remains unknown. A study in 2019, which interviewed 2,500 Haitians, indicated that ten percent of those interviewed held stories of children fathered by UN personnel. While that percentage could sceptically be attributed to a “self-perpetuating myth” about “les Petits MINUSTAH,” a 2017 Associated Press report on the same allegations prompted the UN to repatriate 114 peacekeepers to their home state where they were neither prosecuted nor charged.
HISTORICAL ABUSES
As it stands, the UN officially reported 43 “substantiated” allegations of sexual abuse and exploitation by MINUSTAH members from investigations conducted by troop-contributing countries (TCC) and UN oversight entities. UN data confirms that in 20 of its missions there was at least one substantiated allegation of sexual exploitation and abuse. In seven missions, more than ten substantiated allegations were found (e.g., missions in Mali, Liberia, South Sudan, Darfur, and Côte d’Ivoire). The most substantiated allegations were found in missions in the Democratic Republic of Congo (81), Central African Republic (48), and Haiti (43). This UN data, however, does not account for allegations predating 2007, e.g. missions in Bosnia and Herzegovina, Kosovo, Cambodia, Mozambique, and Somalia. The fact that the UN has currently dedicated a “real-time” tracker for such allegations reveals the devastating pattern of abuse that persists within its peacekeeping missions.
Consequently, the responsibility of the UN as an international organisation (IO) for its peacekeeper sexual abuse and exploitation is rightfully invoked. The International Court of Justice (ICJ) held in the Reparations case on state responsibility for the 1948 assassination of Count Folke Bernadotte, the UN Mediator in Palestine, that IOs possess a distinct legal personality, such that “when an infringement occurs, the organisation should be able to call upon the responsible state to remedy its default”. Based on notions of reciprocity, the ICJ found in the WHO Regional Office case that the same should hold for the responsibility of IOs towards states.
The human rights violations in UN peacekeeping missions are apparent. Sexual abuse and exploitation, leading to unwanted pregnancy and eventual abandonment of the child constitute serious violations of the right to life of dignity as well as violations of the UN Convention on the Rights of the Child (UNCRC) and the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), both of which were also referred to by the Haitian court in its ruling. Furthermore, allegations of exploitation of minors, forced prostitution, sexual trafficking, and slavery move the wrongdoing dangerously close into territory of jus cogens violations.
CHALLENGING THE LEGAL POSITION
Challenging the prevailing legal position that these wrongful acts are not attributable to the UN, however, will be an uphill battle. Status of Force Agreements (SOFA) concluded between the UN and a “host state” of the mission, e.g. articles 52 and 55 in the MINUSTAH SOFA, provide that any civil claim against the mission or its members must be deferred to a “standing claims commission,” if these proceedings are not related to the official duties or necessity of the mission. The SOFA does not allow local courts to exercise jurisdiction over this commission, however the Haitian court was able to establish its jurisdiction contrary to these provisions. It also stated that a MINUSTAH representative cooperated in the proceedings by providing the identity as well as an affirmative paternity test of the peacekeeper in question (now a developing practice of UN field missions). The aforementioned claims commission, however, has never been set up in practice.
Turning to criminal responsibility, the fact remains that the TCC’s troops are not subject to criminal jurisdiction of the host state and that the relationship between the host state, TCC, and the UN is arranged so as to preclude the UN’s responsibility. While the UN has proposed that it would obtain formal assurances from the TCC that the latter would exercise jurisdiction with respect to crimes that might be committed by its forces in the mission’s host state. The UN de facto defers to the TCC’s state responsibility, while the TCC defers to the UN’s responsibility as an IO. As a result, the victim is deprived of legal recourse based on a legal technicality.
Furthermore, the host state’s national courts would also not be able to hold either the TCC or the UN accountable. The ICJ affirmed in its Jurisdictional Immunities decision concerning German war crimes in Italy and Greece that even violations of jus cogens would not strip states of their sovereign immunity in front of national courts. The European Court of Human Rights (ECtHR) drew the same parallel for the UN’s immunity in the exercise of its mandate in Mothers of Srebrenica and Others v. The Netherlands. Nevertheless, scholars have considered the UN’s responsibility if there is “effective control” with respect to the prevention of potential wrongdoing by members of its mission. In this vein, The Netherlands Supreme Court affirmed that both The Netherlands and the UN had effective control over the Dutch Battalion serving for the UN in Srebrenica, thus the troop’s wrongdoings were attributable to both the TCC and the UN.
Another potential way to obtain a ruling on the UN’s responsibility would be for the international community to mobilise the UN General Assembly (or, if one is being ambitious, the Security Council) to request the ICJ to exercise its advisory jurisdiction (article 96, UN Charter) over peacekeeper sexual abuse. While advisory opinions are not legally binding like judgments, they can still set important precedents—for example, in the Wall case on the extraterritorial application of human rights and humanitarian law on occupied Palestinian territories, and in the South West Africa, Kosovo, and, most recently, Chagos cases on the right to self-determination and process of decolonisation. The ICJ has ruled in Reparations on the responsibility of states towards the UN for injuries suffered in the service of the UN and affirmed the reverse in WHO Regional Offices. The crucial question is whether the ICJ, notwithstanding the SOFA arrangement, would also apply this holding for injuries inflicted by the mission’s host state and suffered by the service of the UN.
LEGAL RESPONSIBILITY
On a substantive level, the UN’s failure to prevent such widespread, persistent, and grave human rights violations raises three questions. First, there is the question of the human rights obligations in treaties. Relevant treaties here include the International Covenant on Civil and Political Rights, UN Convention on the Rights of the Child, and Convention on the Elimination of Discrimination Against Women. These agreements contain erga omnes obligations for state parties, thus raising the question on whether IOs would also be bound by these erga omnes obligations.
Second, regarding the sexual trafficking and forced prostitution allegations, given that the prohibition of slavery is a jus cogens norm, the question is whether there is a positive obligation to prevent the jus cogens violation of slavery. While evolving principles of international law have considered positive obligations to prevent gross human rights violations with regard to genocide, torture, or arbitrary death, the ICJ has previously only affirmed the state obligation to prevent genocide.
Third, the UN has taken steps and set up internal accountability mechanisms, pushed for investigations with TCC, and created victims’ assistance and trust funds—the question here is how such efforts will be factored into the legal assessment of any ultimate wrongdoing of the UN.
Since last year, discourse on the legal responsibility of IOs has centered around the WHO’s alleged failings regarding the ongoing pandemic. If a precedent could be set on the responsibility of IOs for a “systematic failure to prevent” the UN’s peacekeeper sexual abuse and exploitation, the literal textbook example (addressed in Shaw’s “International Law”) could serve as—and in an idealistic world should deserve—a landmark ICJ ruling. The assumption of legal responsibility for grave and systematic violations of international law is a matter of principle. For the UN to demonstrate sincere efforts in addressing this damning record of the peacekeeper misconduct, its current efforts towards accountability should not be undercut by its legal assertion that, based on a technicality, it de jure does not incur responsibility for the wrongdoings it de facto is attempting to remedy.
Anh Nguyen is a law graduate of the University of Vienna, where she focused on public international law. She is currently a trainee in international dispute resolution and completing her judicial clerkship in the Vienna circuit courts.