Peacekeeping, human rights and peacekeeper wrongdoing

Peacekeeping, human rights and peacekeeper wrongdoing

The mandate of the United Nations is to protect the human rights of some of the world’s most vulnerable people. If people acting in its name are participants in the abuse of those same people’s human rights, then the integrity of the institution as a whole is compromised and its reputation tarnished. There are bad people in any organisation. But institutions should be committed to exposing and holding accountable the wrongdoers in their ranks. This is not important just in the interests of deterrence, but also in ensuring that wrongdoers never traverse the doors of the United Nations in the first place.

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By Matthew Parish

Peacekeeping has a long history. War being the perpetuation of politics by other means, the bargains that bring conflict to an end are at least as parlous as any other political bargain. As with all political compromises, there is a problem of credible commitment. The parties previously using violence against one-another may not believe the promises each makes to the other within the terms of a compact intended to end conflict. One of the solutions to this problem is the use of peace-keepers: both military and civilian. These are officials from a third nation, and/or operation under the auspices of an international organisation, who place themselves in harm’s way to deter the warring parties from a return to arms.

It is a fiendishly difficult job. I know. I used to be one. I have every admiration and sympathy for peacekeepers, whether operation under the flag of the United Nations or otherwise. Of all the things that the United Nations does, peacekeeping is valuable. It is a mechanism to stop wars that it might otherwise not be possible to stop.

The circumstances in which peacekeepers have to operate are typically ones in which there have been grave violations of human rights in the context of war. The preponderance of modern wars being civil wars; and civil wars, as the adage goes, never being civil, peacekeepers typically have to work with the gravest of situations: traumatised populations, widespread destruction, an absence of or grossly diminished public services, inoperative or dysfunctional justice systems, poverty, looting, lawlessness, fear, ethnic animosity, religious intolerance, pervasive violence, and refugees.

The list of challenges facing people who keep the peace is inordinate. In my view it is the most difficult and admirable possible work in the United Nations system. Moreover the regrettable fact is that peacekeeping missions are almost always heavily under-resourced, and this is not the fault of the people running them. There is not enough money, people are not well-enough trained, there are too few people, and their missions are insufficiently defined because Security Council resolutions have been the product of compromise. In fact peacekeeping can be just as expensive as fighting wars, yet few people wish to acknowledge this. Peacekeepers are sent to protect human rights with insufficient resources to do it. They are the heroes of modern times.

Now we arrive the problem of what to do with peacekeepers who abuse their mandates .The basic problem is a simple one, but the solutions are not. Some people have a propensity to engage in sexual abuse against vulnerable people, given the opportunity. A number of those people join peacekeeping missions, I am sorry to say precisely because working in crisis environments gives them the opportunity to engage in their perversions. Such people look for an environment where there is no accountability for anything, and in a post-conflict scenario of civil devastation they find one. Then they commit their sexual abuses there. If they did it at home, they would go to prison. They sign up to post-conflict peacekeeping missions.

Personally, I do not subscribe to the view that anything other than a tiny minority of peacekeepers engage in such disgraceful behaviour. Nor do I believe that placing decent people in difficult peacekeeping scenarios encourages them to engage in depravities that they would not ordinarily be inclined to do. It just makes it easier for them to get away with it. It is my experience that the vast majority of peacekeepers are trying their hardest in vey difficult circumstances. But there are some bad eggs.

The mandate of the United Nations is to protect the human rights of some of the world’s most vulnerable people. If people acting in its name are participants in the abuse of those same people’s human rights, then the integrity of the institution as a whole is compromised and its reputation tarnished. There are bad people in any organisation. But institutions should be committed to exposing and holding accountable the wrongdoers in their ranks. This is not important just in the interests of deterrence, but also in ensuring that wrongdoers never traverse the doors of the United Nations in the first place.

There are at least three institutional challenges to ensuring that people with propensity to engaging in sexual depravities against vulnerable people are kept away from the United Nations, or if they do commit wrongdoings during the course of their UN service then they are held accountable. The first is that the United Nations is not a country, and the peacekeepers it retains in its name are either private contractors or are “on loan”, if one can put it like that, from a member state. The UN does not have its own army. For this reason, standards of vetting of UN peacekeepers – which I believe ought to be higher than standards of vetting of other UN staff, for example those working in purely administrative or managerial jobs – may be wanting.

When I was employed to work as a civilian peacekeeper in post-war Bosnia ,I was not the subject of a security check. Nobody granted me a security clearance. I subsequently had routine access to classified security documents. I then found myself working in a deprived and vulnerable region of the Balkans with substantial authority, and frankly nobody knew the first damned thing about my background save what I had written upon my own resume. The work of peacekeepers is too sensitive to recruit people in this way.

Many of the contemporary allegations about, or complicity in, abuses by UN peacekeepers relate to military personnel seconded to the United Nations under various legal regimes by the armed forces of UN member states. The standards of vetting of military personnel may vary from one member state to the next. Arguably the very highest standards of security clearance ought to apply to military personnel seconded to UN peacekeeping missions. To date it may not always have done this as well as it could have done. That may be because the United Nations does not want to be seen to be challenging the integrity of members of the armed forces being placed upon loan to it by member states. But we may need to find ways of overcoming this diplomatic nuance.

The next institutional challenge to overcoming the rare instances abuse to which UN peacekeepers may be privy is the natural propensity of any bureaucracy to cover up scandal. Although cover-ups rightly promote outrage, mere outrage does not help us understand why bureaucracies are inclined to do this. The reason is because once it becomes apparent that some moral obscenity has occurred under the auspices of the institution’s responsibility, everybody is afraid of being blamed. Within a bureaucratic culture everyone fears that should a scandal becomes public, then one or more bureaucrats may become scapegoats. Managers, directors, co-workers, fellow peacekeepers, all fear that someone might decide that they did know; or they should have known; that they should have done something about it; that they are responsible by virtue of line-management issues; or otherwise that they are going to be held responsible for something completely ghastly and potentially destructive of a career.

The solution to this institutional challenge is already well-established in the literature and in practice. A bureaucracy needs to normalise institutional responses to the types of malice in question. This entails a number of things. Firstly, persons involved in peacekeeping operations must receive training upon the possibility of these things happening. This is not just a matter of having a chapter in a handbook. It is important that peacekeepers, and those involved in management of peacekeeping operations, must receive face-to-face instruction about the possibility of abuse and the correct procedures to be followed in the event that one becomes concerned about it. Moreover this training must be repeated periodically. It is like so-called health and safety training. Health and safety risks in the workplace may be rare. But they are real. Because they are rare, training about what to do when they happen must be repeated frequently or nobody takes it seriously. The same is true with training about the proper procedures to take place in the event of sexual abuse allegations or concerns. In this way, bureaucracies cease to be so afraid of concerns relating to such very important issues, and the culture of an instinct to cover up may start to dissolve. In its place one will hope to develop a culture of correct reporting. The consequence of making a report is that one is covered by the bureaucratic system. It may be that in some international organisations at the current time, the fear is that the making of a report invites retaliation. The proper response should instead be that not making a report in response to grounded concerns may precipitate retaliation.

The third institutional challenge ties into the question of to whom a report should be made. The United Nations, for all sorts of historical reasons that may be unlikely to change immediately, enjoys immunity from criminal and civil law suits in respect of many of its actions. So do those acting in its name, for a large number of the actions they undertake in that capacity. Even more fundamentally, where a peacekeeper perpetuates a moral outrage such as sexual abuse of a vulnerable person, they typically do so working in a country that has no effective legal system and therefore even if they could be prosecuted, they will not be. (The converse risk, of abusive prosecutions of UN officials in conflict environments, is one of the dominant justifications of the original principle of UN immunity.) Therefore the usual avenue for holding an abuser accountable – namely the criminal courts – is, ex hypothesi, unavailable.

One option is to prosecute the abusers back home. In practice this seldom happens. Quite aside from the legal problems of extra-territoriality involved in prosecuting a person in one country for a crime committed in another one (does the law permit this? How can evidence be gathered? How can witnesses be persuaded to give testimony?), the culture of cover-up may exist in the bureaucracy of the government of the sending state as much as in the United Nations. Moreover the judicial system of the sending state may be perceived by others as of arguable quality in its capacity to hold those accused to account. Moreover the accused do deserve rights of due process in the assessment of any accusations against them. Those rights may be questioned in their home countries. Reliance upon prosecution of the accused in their countries of origin may therefore be unsatisfactory for a number of reasons. On the other hand, prosecution of the accused in the countries where the actions of abuse are alleged to have taken place may also hardly be a solution. For a single nation to extend its so-called long arm of universal jurisdiction in such cases may also not be realistic. A more systematic solution may be required.

Again organisation theory provides us with the answer. The solutions for the United Nations Organisation are not controversial and they are not novel. They have been written about and used in many other bureaucracies. An independent investigation and prosecution system, with adequate transparency safeguards and also with the power to compel production of evidence and witnesses working within the UN system, would be a copy of methods used across the world in jurisdictions with reputations for high rule of law. That institutional framework would need to fall outside the conventional lines of management responsibility for peacekeeping operations. An agency of the United Nations not normally involved in such operations, and whose management is not susceptible to the routine array of political pressures involved in UN peacekeeping, could be engaged. In fact the structures already exist. They just need to be rendered more robust.

It would be imperative that a number of procedural safeguards be imported. Firstly, such an agency should act only upon detailed and credible complaints by named individuals. Otherwise it would risk abuse by evil-doers who might be inclined to generate complaints for purposes internal to the unnecessarily complex politics of the United Nations. But the range of persons with standing to file such a complaint should be broad, and should include a victim; a witness; any officer within the United Nations system (whistleblowers would have a proper outlet for their frustrations); a journalist, accredited or otherwise within the UN system; or any other person with a credible interest in seeing justice done. Thirdly, the procedures of this committee of investigation, if we might tentatively call it that, should be public (although redaction of names of witnesses, defendants and complainants may be appropriate in a range of defined circumstances).

The committee must be guaranteed independence. No other organ or agent of the United Nations must be allowed to interfere in their work. There must be a system of appeals, to figures with judicial experience and with tenure in the sense that their terms of office are fixed, non-renewable and they cannot be easily removed (without recourse to something so radical, for example, as a resolution of the UN General Assembly). A committee of investigations should have powers to send letters rotatory within the system of international criminal procedure to member states, to ask domestic prosecuting authorities to gather evidence. UN officials who refuse to cooperate – for example, who decline to appear before a committee of enquiry – should be susceptible to dismissal for gross misconduct. Hearings should be public, subject to confidentiality injunctions in respect of persons whose identities are deemed protected by the enquiry. Member states can undertake to enforce such injunctions against the international media using the usual domestic mechanisms of contempt of court.

Finally, if a finding is made – to the usual standard in criminal litigation, of beyond reasonable doubt – that a current or former UN peacekeeper has been engaged in activity so serious that it potentially attracts an extended prison sentence in accordance with the standards of legal systems of civilised nations – then the committee of enquiry should have the power to make a recommendation to the Secretary-General that the immunity of the accused person is waived and the matter is referred to the International Criminal Court. What better renaissance might the International Criminal Court benefit from, than the prosecution of those persons who entered international public service only to commit the most egregious breaches of trust against those they were charged to protect. The scope of the Court’s jurisdiction would be limited. UN corruption and misconduct cases cannot arrive at the ICC, because its docket would become unmanageable. But in the occasional instances in which it is averred with clear grounds that UN peacekeepers have engaged in egregious violations of the sexual dignity of the victims of war, the ICC would surely be the right place to try those accusations.

This would do justice to the victims. This would make the UN peacekeeping system increasingly accountable in the direction all right-thinking people must consider proper. This would create the appropriate sense of deterrence. And this would surely and hopefully restore confidence in a system in which confidence is so regrettably now lacking.

Matthew Parish is an international lawyer based in Geneva, Switzerland and a former UN peacekeeper. He is a scholar of ethnic conflict and civil war, and he has published two books and over two hundred articles. He is an Honorary Professor of Civil Law and Litigation at the University of Leicester and a Young Global Leader of the World Economic Forum. Bilan magazine named him as one of the three hundred most influential people in Switzerland.

The views expressed in this piece do not necessarily reflect those of TransConflict.

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