Utilizing the powers within UN Security Council Resolution

2272 to mitigate stochastic sexual exploitation and abuse by

UN peacekeepers

Jennifer Breslin B00726964

Masters in Law in in Gender, Conflict and Human Rights (PT 7032)
Dissertation (Law/827/51519)
Transitional Justice Institute
School of Law
Ulster University
Master’s Degree in Law
February 2019

i
Contents
ACKNOWLEDGEMENTS iii
ASTRACT iv
ABBREVIATIONS v
Chapter 1 1
1.0 Introduction 1
1.2 Statement of the Problem 1
1.3 Research Question 1
1.4 Significance of the Study 2
1.4 Legal Framework 2
Chapter 2 5
2.0 Literature Review 5
2.1 Historical overview of the problem of SEA in peacekeeping operations 5
2.3 Research 6
2.4 Current trends 8
2.4.1 Survival Sex 8
2.4.2 Peacekeeper Children 8
2.4.3 Immunity/Accountability 9
2.4.4 Legal Framework Error! Bookmark not defined.
2.5 Resolution 2272 10
2.6 Concluding Comments 12
Chapter 3 12
3.0 Introduction Error! Bookmark not defined.
Chapter 5 13
5.0 Conclusion 13
Bibliography 16
Legislation 16
Textbooks 17
Articles 18
Miscellaneous 21

ii
ACKNOWLEDGEMENTS
To my supervisor Prof Siobhan Wills for support, encouragement and advice. I want
to convey my thanks to all at the Transitional Justice Institute, from the Head of the
School Prof Rory O’Connell, my lecturers including Dr Azadeh Chalabi, and to my
classmates for the intellectually stimulating camaraderie they provided. It was a truly
life changing experience and opened my eyes to so many inspiring ideas. I am grateful
to Capt. Deirdre Carbery, Dr Col. Brendan O’Shea and Dr Michelle Farrell for providing
insights and reading materials.

Thank you to my incredible patience and support of Saad Siddique. You were always
there to listen to my worries and reassure me. There are no words to convey my love
for you. Finally, I want to thank my family their unfailing support and love.

Go raibh míle maith agaibh as an tacaíocht agus an grá a thug sibh dom.

‫تحسين في ومساعدتي بالصبر التحلي على لك شكرا‬

iii
ASTRACT
The purpose of this dissertation is to find a solution to the problem of sexual abuse
and exploitation by UN peacekeepers. Sexual exploitation and abuse (SEA) is actual
or attempted abuse of a position of vulnerability, differential power or trust for sexual
purposes, which may or may not include violence. This is an egregious and ongoing
problem within peacekeeping operations, resulting in victimisation women and girls,
already suffering due to conflict. The dissertation adopts a liberal feminist approach to
legal and geopolitical context of the problem. Liberal feminism seeks to achieve
gender equality by working within the established norms of society. This approach is
adopted based on the fact that SEA disproportionately affects women and girls, and
in the context of the rise of the right-wing politics in the global arena. The research is
an investigation into currently available information on previously suggested methods
for securing prosecutions for SEA. It will delve into the causation for the lack of

iv
prosecutions such as gendered architecture of the Security Council, institutional
failings in areas such as evidence gathering, information sharing and data collection.
I also examine human rights records of troop contributing countries and accountability.
My findings demonstrate there is a lack of political will amongst troop contributing
countries and a lack of power in the Security Council to adequately deal with the issue.
I shall proceed to explain why Security Council Resolution 2272 is unique in its
attempts to tackle this problem. There are sanction mechanisms inherent in the
Resolution which could be exploited to their fullest to enforce a socialisation of the
non-acceptance of SEA in peacekeeping operations. It is proposed that these
mechanisms may be an effective method to mitigate stochastic sexual abuse and
exploitation.

ABBREVIATIONS

List of Abbreviations

CDU Conduct and Discipline Unit

CEDAW Convention for the Elimination of Discrimination Against Women
CRGBV Conflict-Related Gender-Based Violence
CSO Civil Society Organisation
CSDP Common Security and Defence Policy
DPKO The Department of Peacekeeping Operations
EU European Union
GBV Gender-Based Violence
HIPPO High-Level Independent Panel on Peace Operations
HRC Human Rights Council
ICC International Criminal Court
ICCPR International Convention on Civil and Political Rights
IHRL International Human Rights Law
IHL International Humanitarian Law

v
MS Member States
NATO North Atlantic Treaty Organisation
NGO Non-Governmental Organisation
OIOS Office of the Internal Oversight Services
OSCE Organisation for Security and Co-operation in Europe
PK Peacekeeper(s)
PKO Peacekeeping Operation(s)
PCC Police Contributing Country
SEA Sexual Exploitation and Abuse
SGBV Sexual and Gender-Based Violence
TCC Troop contributing country
UNGA United Nations General Assembly
UNSCR United Nations Security Council Resolution
UPR Universal Periodic Review
WPS Women, Peace and Security
ZTP Zero Tolerance Policy

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Chapter 1

1.0 Introduction

Peacekeeping is an instrument of collective security. Paradoxically, although it is

utilised to provide security at a state-level, in some cases, it may increase insecurity
on a personal level. During the 1990s, reports emerged of gender-based violence by
peacekeepers. Amongst the proposed solutions, at the time, was gender
mainstreaming. Gender mainstreaming is the integration of a gender perspective into
all legislation and policies to achieve formal, substantive and transformative equality.
Other solutions included improved investigation techniques and TCC accountability.
The following dissertation will discuss the solutions proposed in Security Council
Resolution 2272.1

1.2 Statement of the Problem

Women and men suffer from different forms of abuse during a conflict2; men are at
greater risk of being killed, whereas women are statistically more likely to be sexually
abused. Women are being harmed in real ways by sexual violence, exploitation and
abuse (SEA) by UN peacekeepers during peacekeeping operations (PKO). In 2003,
the UN Special Rapporteur stated that SEA by peacekeepers was “boys being boys”.
3 This jarring dissonance demonstrates the dominance of the patriarchal norms in the

military and the UN, together with the denial which allowed the problem to fester. The
charity ‘Save the Children’ reported the extent of the problem in 2003.4 Whereas, the
morality of men visiting prostitutes is a philosophical debate for ethics academics, this
research will focus on the practical problems created by this behaviour and how it
compounds the problems of victims in a conflict. For instance, it has been shown by
feminist scholars that this pattern of behaviour increases problems with child
exploitation, prostitution, the black economy, abandoned babies, human trafficking
and HIV/AIDS.5

1.3 Research Question

Security Council Resolution 22726 itself is not legally binding and subsequently only
administrative powers remain available. The UN cannot criminally prosecute individual
peacekeepers and at the same time, it requires TCCs to donate troops. The principle
argument of this dissertation is that the administrative powers within Resolution 2272
should to be exploited to their fullest in encourage a change in the culture of PKOs.
To this end, I will seek to identify clearly the administrative mechanisms inherent in the

1 UNSC Resolution 2272 (11 March 2016) UN Doc S/Res/2272

2 Louise Olsson., ‘Gendering UN peacekeeping: mainstreaming a gender perspective in
multidimensional peacekeeping operations’ (1999) Uppsala, Sweden: Uppsala University, Dept. of
Peace and Conflict Research
3 Alex Bellamy and Paul Williams, Understanding Peacekeeping (2nd edn. Polity Press 2012) p359
4 Ibid p357
5 Bernd Beber and others, ‘Peacekeeping, Compliance with International Norms, and Transactional Sex

in Monrovia, Liberia’ (2017) 71 International Organization 1

6 UNSC Resolution 2272 (11 March 2016) UN Doc S/Res/2272

1
Resolution which could be enhanced. Those financial penalties include repatriation
and non-reimbursement of payments to troops.

1.4 Significance of the Study

There is a real, pressing need to protect the human rights, in particular, dignity rights
of women in conflicts. Women are suffering double victimization; due to their being
engulfed in a conflict and enduring SEA. This leaves the victims suffering structural
violence, physical violence and severe economic disadvantages. It is important at this
juncture to define the terms under discussion. This dissertation will adopt the definition
provided in the UN document, the ‘Bulletin on Special Measures for Protection from
Sexual Exploitation and Abuse’:

actual or attempted abuse of a position of vulnerability, differential power or trust for sexual
purposes.7

This definition was utilized in a document specifically in the context of PKO. It has
been criticised by Burke in terms of its usefulness in prosecutions of peacekeepers,
due to the fact that the troop contributing countries (TCC) utilize different definitions in
their domestic legislation.8 Indeed, there are great variations in the types of abuse
such as transactional, sadistic and opportunistic.9 Not all forms are proscribed under
various domestic legal regimes.

1.4 Legal Framework

The legal framework behind the prohibition of SEA is complex. Firstly, the normative
legal framework prohibiting SEA in conflict settings can be outlined; the Fourth Geneva
Convention (IV)10, Art 27 bans enforced prostitution. The Additional Protocol I of 1977
Art 76(1) included a further ban: ‘women shall be especially protected against any
attack on their honour, in particular against rape, enforce prostitution or any form of
indecent assault’. 11 The Second Additional Protocol uses gender neutral language to
protect from ‘outrages of personal dignity’.12 In addition, sexual slavery is banned as
a norm of international law (jus cogens). 13

7 UN Secretariat ‘Secretary General’s Bulletin, ‘Bulletin on Special measures for Protection from
Sexual Exploitation and Abuse’ (2003) ST/SGB/2003/13 <
http://www.unhcr.org/uk/protection/operations/405ac6614/secretary-generals-bulletin-special-
measures-protection-sexual-exploitation.html> accessed 22 April 2018
8 R Burke, ‘Shaming the State: Sexual Offences by UN Military Peacekeepers and the Rhetoric of

Zero Tolerance’ in Heathcote G and Otto D (eds) Rethinking Peacekeeping, Gender Equality and
Collective Security (1st edn, Palgrave MacMillan 2014) 71
9 JK Westendorf and L Searle, ‘Sexual exploitation and abuse in peace operations: trends, policy

responses and future directions’ (2017) 93 (2) International Affairs 372

10 ICRC, Geneva Convention Relative to the Protection of Civilian Persons in Time of War (adopted

12 August 1949, entered into force 21 October 1950) 75 UNTS 287 (Fourth Geneva Convention)
11 ICRC, Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the

Protection of Victims of International Armed Conflicts (adopted 8 June 1977, entered into force 7
December 1978) 1125 UNTS 3 (Protocol I)
12 D Mazurana, A Ravan-Roberts and J Parpart ‘Gender, Conflict and Peacekeeping’ (1 st edn.

Rowman and Littlefield: Oxford and Boulder 2005) 68

13 Y Dinstein, The Conduct of Hostilities under the Law of International Armed Conflict (2 nd ed.

Cambridge University Press 2010) 157

2
More relevant to this dissertation is the normative legal framework around SEA during
peace-time. SEA is prohibited during non-conflict situations under various regional
human rights regimes. For example, it is prohibited under the Universal Declaration of
Human Rights.14 Torture, including inhuman and degrading treatment, and slavery are
prohibited under the European Convention on Human Rights.15 The American
Convention gives the right to humane treatment and freedom from slavery, Arts 5 and
6.16 The International Covenant on Civil and Political Rights Arts 7 and 8 prohibit
torture and cruel, inhuman or degrading treatment, and bans slavery in all its forms
including forced labour.17 Therefore, while not explicitly prohibiting SEA, it is evidenced
in the case law. For example, the UN HR Committee stated explicitly that the ICCPR
applies to a national contingent of a State Party participating in a PKO, therefore at
the very least, sexual slavery would be prohibited.18 In addition, the European Court
of Human Rights has held the TCCs are responsible for the conduct of their own
troops.19 In reality, there are complexities such as a conflict of HR obligations of the
TCC and the Host state. In that case, the obligations of the TCC should take
precedence.20 Larsen concludes, in terms of applying HR in a post-conflict setting, it
is a complex process in attempting to apply human rights treaties,21 as there are many
variables, for exmaple; 1. state party must be held responsible 2. the State party must
exercise extraterritoriality 3. International Humanitarian Law must be applied and
interpreted in light of International Human Rights Law. 4. the legislation must be
interpreted in light of the mandate.

Needless to say, SEA is proscribed under international criminal law. The Rome Statute
is the key piece of legislation this area.22 SEA is considered a war crime under Art 8
(2)(b)(xxii) and a crime against humanity under Art 7(1)(g).23 Torture is a crime against
humanity Art 7(1)(f).24 In order to put a case before the ICC, the crimes must take
place in “fulfilment of specific contextual elements”25, meaning various legal elements
of the crime must be proved to the satisfaction of a jury. Whether SEA could be
categorised as torture has been subject of a recent academic debate without

14 UN General Assembly, Universal Declaration of Human Rights, 10 December 1948, UNGA Res
217 A (III) (UDHR) Art 1-5
15 Council of Europe, European Convention for the Protection of Human Rights and Fundamental

Freedoms, as amended by Protocols Nos. 11 and 14, (adopted 4 November 1950, entered into force
3 September 1973) ETS 5, Art 3 and 4
16 Organization of American States (OAS), American Convention on Human Rights, "Pact of San

Jose", Costa Rica, (adopted 22 November 1969, entered into force 18 July 1978) Arts 5 and 6
17 UN General Assembly, International Covenant on Civil and Political Rights, (adopted 16 December

1966, entered into force 24 march 1976) United Nations, Treaty Series, resolution 2200A (XXI) Art 7
and 8
18 T Gill (ed.) Leuven Manual on the International Law Applicable to Peace Operations (1st edn.

Cambridge University Press 2017) 82

19 Ibid 82
20 Ibid 84
21 K Larsen, The Human Rights Treaty Obligations of Peacekeepers, (1st edn Cambridge University

Press 2012) 43
22 United Nations, Rome Statute of the International Criminal Court (adopted 17 March 1998, entered

into force 1 July 2002) 2187 UNTS 90 (Rome Statute)

23 Ibid Art 7 and 8
24 Ibid Art 7
25 T Gill (ed.) Leuven Manual on the International Law Applicable to Peace Operations (1st edn.

Cambridge University Press 2017) 315

3
resolution.26 Many scholars have written on problems with UN accountability in
particular the effects of UN’s immunity. Their focus is on actions that can be taken
after the fact. This dissertation will focus on methods that can be employed to mitigate
stochastic SEA.

26 R Freedman, ‘Unaccountable: rejoinder to Devika Hovell’ (2018) 29 (3) The European Journal of
International Law 999

4
Chapter 2

2.0 Literature Review

This literature review seeks to clarify the different approaches and solutions to the
problem of SEA by peacekeepers that have been undertaken or proposed by various
experts in the field. They offer different ways of problematising the issue. This section
will explore the main issues that Res 2272 attempts to resolve.

2.1 Historical overview of the problem of SEA in peacekeeping operations

When reports of SEA by peacekeepers were published in 200327, it shattered the

narrative that PKO were benign.28 The issue received attention from feminist
academics. The focus shifted onto the normative structures of select PKOs. Studies
concentrated on the mentality of peacekeepers and the minutiae of daily lives in
conflict situations. Researchers analysed the power differentials between PK and the
local population.29 The Prince Zeid report, commissioned by the UN,30 concluded that
the socially constructed, patriarchal culture of the military was enabling SEA.
Whitworth31 and Martin32 effectively demonstrated how hyper-masculinities in the
military increase the risk of SEA.

As a response Simic suggested an increase in the proportion of women

peacekeepers.33 Such a solution was overly simplistic and was never implemented.
Before long, the aspirations of early feminist writers began to attract criticism. As
Harding, amongst others34, correctly observed, merely increasing the proportion of
women in an institution was not sufficient to prevent exploitation as women faced

27 E Barth, ‘The United Nations Mission in Eritrea/Ethiopia: Gender(ed) Effects’ in Olsson L. et al (eds)
‘Gender Aspects of Conflict Interventions: Intended and Unintended Consequences’, (1 st edn. Oslo
International Peace Research Institute 2004) 9
28 S Wills, 'Military Interventions on Behalf of Vulnerable Populations: The Legal Responsibilities of

States and International Organizations Engaged in Peace Support Operations' (2004) 9(3) Journal of
Conflict and Security Law 388
29 P Higate and M Henry, ‘Engendering (In)security in Peace Support Operations’ (2004) 35(4)

Security Dialogue 481-498

30 UN General Assembly, ‘A Comprehensive Strategy to Eliminate Future Sexual Exploitation and

Abuse in United Nations Peacekeeping Operations’ UN General Assembly A/59/710 <

http://www.un.org/en/ga/search/view_doc.asp?symbol=A/59/710> accessed 21 April 2018
31 S Whitworth, Men, Militarism and UN Peacekeeping (1st edn L Rienner 2004)
32 S Martin, Must Boys Be Boys?: Ending Sexual Exploitation and Abuse in UN Peacekeeping

Missions (Refugees International 2005)

33 O Simić, ‘Does the Presence of Women Really Matter? Towards Combating Male Sexual Violence

in Peacekeeping Operations’ (2010) 17(2), International Peacekeeping, 188-199

34 H Carey, ‘Women and peace and security: The politics of implementing gender sensitivity norms in

peacekeeping’ (2001)8(2) International Peacekeeping, 9-68

5
pressure from their male colleagues not to report it.35 Bellamy and Williams 36 and
Olsson independently noted that the very hierarchy of the UN was gendered, and
without female representation at managerial level, no changes would be affected.37

2.3 Research

Major research has been undertaken in the field that has increased our understanding
since academics and practitioners became conscious of the problem. Firstly, Higate
and Henry conducted qualitative interviews with peacekeepers on their attitudes to
women in 2004.38 The interviews they conducted revealed the patriarchal norms that
dominated PKO and their relations with local women. Peacekeepers, they observed,
viewed their relations with local women in three main categories; (1) as legitimate
involvement (they viewed transactional sex as benevolent) (2) peacekeepers were
victims of predatory women (3) peacekeepers were bravely resisting multiple sexual
“temptations”. This demonstrates the socially constructed gender-stereotypes that can
be prevalent in a militaristic environment.

In 2007, Otto conducted qualitative interviews with female survivors of sexual violence
and abuse in conflict situations.39 She coined the term “survival sex” for the methods
that women employ to survive conflict situations. She examined how it creates a black
economy, warping the overall economy of an already-fragile country. She criticised the
policy of zero-tolerance as overly simplistic. More recently, Nordas and Rustad40
correctly treated the zero-tolerance policy as a chimera. Simić was told by a gender
advisor that there was “zero compliance with zero tolerance”.41 Nordas and Rustad
compiled empirical data on SEA, thereby enabling them to theorize the issue and
observe variables in its occurrence. Defining the parameters of the problem is a major
step towards resolving it.

Simm undertook a thorough investigation of the regulatory framework. She Identified

lacunae in the law in terms of holding peacekeepers accountable42 by conducting a
survey of International law, jurisdiction and responsibility. She observed that the
apparent legal obstacles for a host country in prosecuting a PK were a fundamental
flaw. Furthermore, it was unlikely that a TCC would prosecute and it was politically
and legally unviable to force a TCC prosecute a perpetrator. Thus, she identified a
contributing factor in the continuance of SEA however, she did not offer a solution. In

35 S Harding, ‘Can Feminist Thought Make Economics More Objective?’ (2010) 1(1) Feminist
Economics, 7-32
36 A Bellamy and P Williams, Understanding Peacekeeping (2nd edn. Polity Press 2012) 375
37 L Olsson, ‘Gendering UN peacekeeping: mainstreaming a gender perspective in multidimensional

peacekeeping operations’ (1999) Uppsala, Sweden: Uppsala University, Dept. of Peace and Conflict
Research 11
38 P Higate and M Henry, ‘Engendering (In)security in Peace Support Operations’ (2004) 35(4) Security

Dialogue 481-498
39 D Otto, 'Making sense of zero tolerance policies in peacekeeping sexual economies' (2007) Sexuality

and the Law 259

40 R Nordås and S Rustad, ‘Sexual Exploitation and Abuse by Peacekeepers: Understanding Variation’

(2013) 39 (4) International Interactions 511-534

41 O Simić, ‘Does the Presence of Women Really Matter? Towards Combating Male Sexual Violence

in Peacekeeping Operations’ (2010) 17(2), International Peacekeeping, 188

42 G Simm, 'International Law as a Regulatory Framework for Sexual Crimes Committed by

Peacekeepers.' (2011) 16(3) Journal of Conflict & Security Law 473

6
order to gain data on lived experiences of staff working in the field, Reeves conducted
qualitative interviews with gender advisors working in PKOs.43 Her research concluded
that the training the new recruits received is “very erratic”.44 In addition, she observed
that female recruits were confined to stereo-typical roles of social workers, nurses and
secretaries.45 One improvement that she did note was that the Dept of PKO had begun
to collect data on gender related issues. 46 In 2014 Neudorfer47 undertook a
quantitative analysis of PKO and causal mechanisms and deterrence theory. She
concluded that deterrence measures were effective, however she did not examine
whether the behaviour showed increased levels of secrecy or threats. These types of
questions would have illustrated the complexities of the issue.

More recently, Kihara-Hunt investigated six hundred allegations of criminal conduct

committed by police personnel on UN peace operations, since 1960s. 48 The UN’s
approach in conflating sexual crimes with misconduct failed to give sufficient gravity
to the nature of the crimes.49 Furthermore, the administrators were incapable of
providing sufficient evidence and information for a conviction.50

Transactional sex is banned in PKOs.51 The Bulletin prohibits ‘exchange of money,

employment, goods or services for sex’.52 Beber et al53 conducted extensive interviews
with female women and children in Monrovia, Liberia. The research claimed to be the
first systematic quantitative study to gather empirical data solely on PKOs. The study
concluded that 75% of women and girls had engaged in transactional sex, and the
presence of a UN troop significantly increased the likelihood of a female engaging
transactional sex.54 Results showed that transactional sex was a “ubiquitous life
experience” for young women.55 The study revealed the “peacekeeper economy”
affected the health and economy of the wider post-conflict society. In conclusion,
Beber observed widespread non-compliance due to states failure to impose
socialisation on non-acceptance of transactional sex among their troops, through lack
of material incentives.56 Unfortunately, they did not include women who claimed to

43 A Reeves, ‘Feminist Knowledge and Emerging Governmentality in UN Peacekeeping: Patterns of

Co-optation and Empowerment’, (2012) 14 (3) International Feminist Journal of Politics 354
44 ibid
45 ibid
46 Ibid 136
47 K Neudorfer, ‘Reducing Sexual Exploitation and Abuse: Does Deterrence Work to

Prevent SEAs in UN Peacekeeping Missions?’ (2014) 21 Journal of International Peacekeeping

623-641
48 A Kihara-Hunt, ‘Addressing Sexual Exploitation and Abuse – The Case of the UN Police -
Recommendations’ (2017) 21 Journal of International Peacekeeping 62
49 ibid 62
50 Ibid 75
51 UN Secretariat ‘Secretary General’s Bulletin, ‘Bulletin on Special measures for Protection from

Sexual Exploitation and Abuse’ (2003) ST/SGB/2003/13 <

http://www.unhcr.org/uk/protection/operations/405ac6614/secretary-generals-bulletin-special-
measures-protection-sexual-exploitation.html> accessed 22 April 2018 2
52 Ibid 2
53 B Beber et al, ‘Peacekeeping, Compliance with International Norms, and Transactional Sex in

Monrovia, Liberia’ (2017) 71 International Organization 1

54 Ibid 1
55 Ibid 3
56 Ibid 24

7
have been raped by force in the study. Furthermore, as the prince Zeid report showed,
some women were raped and then given food to give the appearance of consent.57

2.4 Current trends

The following are four major areas in which scholars have problematised the issue.

2.4.1 Survival Sex

Academics have concentrated on the wider consequences of SEA for the economy,
as well as the devastating impact on women. Vojdik explored the economy from the
perspective of international law and showed that penalties for peacekeepers was
totally inadequate.58 Mudgway insightfully identified a number of lacunae in the legal
framework, for example, survivor sex is not included in the definition of forced
prostitution or sexual slavery in international humanitarian law.59

Recently, O’Brien examined criminalising certain conduct of peacekeepers in detail. 60

She highlighted the power imbalance between armed soldiers and local women. Mixed
in with the power imbalance is racism; the developed nation exploiting the under-
developed nation. 61 she suggested that the idea of consensual sex in a post-conflict
situation was impossible due to the legal system and social infrastructure having
collapsed62. In contrast, Prof Mazurnan’s study showed how soldiers viewed the
presence of women “willing” to have sex is a natural, harmless transitional
phenomenon. 63 This, she concluded, showed a lack of understanding, and allowed
predatory economies to flourish.

2.4.2 Peacekeeper Children

A number of scholarly articles were related to the rights of women whose babies were
fathered by peacekeepers. O’Brien was told by victims that only some nationalities
use prophylactics. There more babies of particular nationalities in villages than
others.64 Clearly this leads to increases in HIV/AIDS.65 Ndulo critiqued the UN
response to the problem. 66 She sought practical ways to assist victims and babies.
Indeed, Blau67 tackled the same problem with the advantage of new technologies. She

57 Cohn C (ed), Women and Wars: Contested Histories, Uncertain Futures (Polity Press 2013) 221
58 V Vojdik, 'Sexual Abuse and Exploitation of Women and Girls by U.N. Peacekeeping Troops.' (2007)
15(1) Michigan St Journal of International Law 157
59 C Mudgway, ‘Sexual exploitation by UN peacekeepers: the ‘survival sex’ gap in international human

rights law ‘(2017) 21 (9) The International Journal of Human Rights 1458
60 M O’Brien, Criminalising Peacekeepers: Modernising National Approaches to Sexual exploitation

and Abuse (1st edn Springer 2017) 11

61 Ibid 19
62 ibid 11
63 D Mazurana, A Ravan-Roberts, J Parpart, ‘Gender, Conflict and Peacekeeping’ (1 st edn. Rowman

and Littlefield: Oxford and Boulder 2005) 34

64 (n 41) 13
65 (n 41) 24
66 M Ndulo. ‘The United Nations Responses to the Sexual Abuse and Exploitation of Women and Girls

by Peacekeepers during Peacekeeping Missions’ (2009) (27) Berkeley Journal of International Law 127
67 L Blau, 'Victimizing Those They Were Sent to Protect: Enhancing Accountability for Children Born of

Sexual Abuse and Exploitation by UN Peacekeepers.' (2016) 44(1) Syracuse Journal of International

8
proposed using DNA tests to establish the identities of the fathers. She proposed
tracing them to their TCC and using diplomacy and legal avenues to compel the
soldiers to pay maintenance.

2.4.3 Immunity/Accountability

The largest volume of work in this area is directed towards addressing the openings
in the legislation which facilitate the perpetrators to go unpunished.68 Each scholar
writing on the issue has pointed out the frustration felt by victims (including Freedman,
Burke, Uddin and Defeis). Scholars examined particular countries, assessing the
applicability of the domestic law, such as Burke and her study on accountability in
Africa.69 She concluded that the UN was complicit and noted institutional failings in the
prosecution of soldiers. Similarly, O’Brien looked the prosecution of soldiers in
Australia and the United States and their ability and political will to get justice. 70

Whereas, there are scholars who argue claims that the TCC cannot prosecute are
fiction. 71 The difficulty arises in the confusion between conduct and criminal matters.72
Other writers focused on the overall structural failings and limitations. For example,
Gunnarsson looked at accountability with reference to Carol Cohn’s work on the
continuum of violence for women in conflict; she recognised that patriarchal,
heteronormative and racially hierarchical structure of the UN itself was an obstacle to
justice.73 O’Brien scrutinised the obstacles to prosecution in ICC; prosecutorial
discretion and the level/control of the peacekeepers and suggested amendments. 74

Moreover, Wills looked at the idea of a Convention of the Criminal Accountability of

UN Staff and its recommendations. She identified some shortcomings of the proposal.
75 She noted that the Convention would be limited to civilian staff, thereby leaving

soldiers immune. She suggested that “a sustained campaign is required”. Thus, it was
only Wills and O’Brien who discussed a practical solution.

O’Brien looked at the case studies of USA and Australia. She examined in detail the
deficiencies in domestic legislation that makes it difficult to prosecute even if the
political will was there.76 Her work raised an important issue about the quality of

Law and Commerce 121

68 UN General Assembly, ‘A Comprehensive Strategy to Eliminate Future Sexual Exploitation and

Abuse in United Nations Peacekeeping Operations’ UN General Assembly A/59/710 <

http://www.un.org/en/ga/search/view_doc.asp?symbol=A/59/710> accessed 21 April 2018 AND Alex
Bellamy and Paul Williams, Understanding Peacekeeping (2nd edn. Polity Press 2012) 374
69 R Burke, ‘Shaming the State: Sexual Offences by UN Military Peacekeepers and the Rhetoric of

Zero Tolerance’ in Heathcote G and Otto D (eds) Rethinking Peacekeeping, Gender Equality and
Collective Security (1st edn, Palgrave MacMillan 2014) p70-98
70 (n 41)
71 (n 33) 66
72 (n 33) 77
73 H Gunnarsson, 'Accountability of the UN and Peacekeepers: A Focus Study on Sexual Exploitation

and Abuse.' (2015) 2(1) SOAS Law Journal 207

74 M O’Brien, ‘Prosecutorial Discretion as an Obstacle to Prosecution of United Nations Peacekeepers

by the International Criminal Court: The Big Fish/Small Fish Debate and the Gravity Threshold’ (2012)
10(3) Journal of International Criminal Justice 525–545
75 S Wills, 'Continuing Impunity of Peacekeepers: The Need for a Convention.' (2013) 4(1) Journal of

International Humanitarian Legal Studies 47-80

76 (n 41) 113

9
domestic systems from which PKs are sent. In contrast, Burke77 returned to basic
principles to argue that under the UN Charter, Art 105, it was not intended to give
absolute immunity and furthermore, UN Sec Gen has a legal responsibility to waive
immunity where injustice has been done.78

2.5 Resolution 2272

In recent times, a number of new special measures were introduced by the UN

including SC Resolution 2272.79 The following paragraph describes documents cited
by Resolution 2272. These documents informed the policies within the Resolution. For
example, the report of the High-level Independent Panel on Peace Operations
(HIPPO). 80 The review encompassed all aspects of peacekeeping operations,
including SEA in peacekeeping operations. It supported the Secretary General’s
proposed set of sanctions for peacekeepers who have committed SEA. 81 The
language used is more forceful than is previous reports, for example, it states that
TCCs “must immediately and vigorously investigate” allegations rather than urging and
investigation.82 The report also supports evaluations of TCCS, repatriation and
specifically referred to transactional sex.83 Later that year, the UN laid out their
priorities in terms of POKs in the Secretary-General’s report entitled ‘The Future of
United Nations Peace Operations’.84 This document showed how the high-level
Panel’s recommendations would be implemented. Again, more forceful language is
used compared to previous reports. For example, The Secretary-General states:

I have clearly communicated my intent to impose strong sanctions against those who commit
acts of misconduct and those who fail to take action against them, including mission leadership
and command authorities.85

In the Global Study on the Implementation of 1325,86 The Secretary General noted
that significant progress had been made in recent years in including a gender
perspective in PKOs.87 He noted that all missions now have gender advisors and all
mandates include a gender analysis.88 He further noted however, that in terms of SEA
there were shortcomings. The number of female staff was still extremely low which

77 R Burke, 'Central African Republic Peacekeeper Sexual Crimes, Institutional Failings: Addressing
the Accountability Gap' (2016) 14(1) New Zealand Journal of Public and International Law 97
78 Ibid 109
79 UNSC Resolution 2272 (11 March 2016) UN Doc S/Res/2272
80 UN General Assembly and Security Council, ‘Report of the High-level Independent Panel on Peace

Operations on uniting our strengths for peace: politics, partnership and people’ (2015) UN Doc
S/2015/446
81 Ibid 86
82 Ibid 86
83 Ibid 85
84 UN General Assembly and Security Council, ‘The Future of United Nations Peace Operations:

implementation of the recommendations of the High-level Independent Panel on Peace Operations’

(2015) A/70/357-S//2015/682
85 Ibid 25 para 120
86 UNSC, ‘Report of the Secretary-General on Women and Peace and Security’ Security’ (16

September 2016) UN Doc S/2015/716

87 Ibid 26
88 Ibid 26

10
would make it harder for locals to report allegations.89 In relation to investigations of
allegations, he noted that when TCCs failed to investigate, the UN had begun to take
the lead in initiating investigations.90 One month before Resolution 2272 was passed,
the report which seems to have formed the basis for the Resolution is Report of the
Secretary-General on Special Measure for Protection and prevention of Sexual
exploitation and abuse.91 The report presents the data and statistics that lead to the
formulations of Resolution 2272. The report goes into detail on the measures taken in
2272 for example, repatriation and suspension of payments.92 The report describes
how payments should be suspended for staff members who have allegations made
against them. It goes further than 2272 in that it states, if allegations are not
investigated within one year then payments should be suspended for the entire troop.93
This element was later to prove controversial and did not survive the final edit.

SC Resolution 2272 was voted on 11th March 2016.94 Some academics, including
Neudorfer95 declared it was ground-breaking.96 Simić97 welcomed the new measures
and yet she regretted the Resolution perpetuated the use of language of disciplinary
misconduct therefore downplayed the gravity of the crimes.98 Kihara-Hunt did not
accept it at face value and presented seven further recommendations. 99 Those
included more thorough vetting and robust protection of victims. Indeed, Oswald
criticised Res 2272 as it would not be legally binding.100 In addition, He also pointed
out the lack of attention to victims. He highlighted the intrinsic normative value as it
was issued by the “highest political organ” of the UN.101 Whalan102 recognised the
need for better screening and yet recognised the political limitations of the UN. She
also noted the limitations of Res 2272, for example the lack of clarity around non-
uniform staff and lack of a victim-focus. She further noted, the text states the states
were to be “urged” as opposed to “must”. She put forward nine recommendations.103

89 Ibid 27
90 Ibid 27
91 UN Secretariat ‘Secretary General’s Report, ‘Report on Special measures for Protection from

Sexual Exploitation and Abuse’ (2016) UN Doc A/RES/70/729

92 Ibid 5
93 Ibid 16
94 UNSC Resolution 2272 (11 March 2016) UN Doc S/Res/2272
95 K Neudorfer ‘UNSC Res 2272: Progress Against Sexual Abuse in UN Peacekeeping?’ E-

International Relations 21 April 2016

<https://www.e-ir.info/2016/04/21/unsc-resolution-2272-progress-against-sexual-abuse-in-un-
peacekeeping/> accessed 22 October 2018
96 R Boom, ‘United Nations Security Council Resolution 2272 & Security General report on Special

Measures for Protection from Sexual Exploitation and Sexual Abuse’ (2016) 55 International Legal
Materials 756
97 O Simić, ‘Policing the Peacekeepers: Disrupting Responses to “Crises” Over Sexual Offence

Allegations’ (2016) 20 Journal of International Peacekeeping 69-85

98 Ibid 81
99 A Kihara-Hunt, ‘Addressing Sexual Exploitation and Abuse ‘ (2017) 21 Journal of International

Peacekeeping 62-82
100 B Oswald, Sexual Exploitation and Abuse in Peace Operations’ (2016) 20 Journal of International

Peacekeeping 143-170
101 Ibid 153

102 J Whalan, ‘Reforming UN Peace Operations: Will the High-Level Panel’s Report Make a
Difference for Human Rights?’ (2016) 20 Journal of International Peacekeeping p5-20
103 J Whalan, ‘Dealing with Disgrace: Addressing Sexual Exploitation and Abuse in UN Peacekeeping’

(International Peace Institute August 2017) < https://www.ipinst.org/2017/08/addressing-sexual-

exploitation-and-abuse-in-un-peacekeeping> accessed 8 October 2018

11
One of the most critical scholars was Smith, who claimed that Res 2272 was “chiefly
and issue of embarrassment” for the UN.104 Under a technical examination of the
repatriation mechanism, she concluded that it would not provide justice to the
victims.105 Nor would repatriation change the culture of the troops. She noted in her
case study of Timor Leste, women could not claim maintenance for peace babies as
they could not prove they were raped – Res 2272 does not address this issue. Thus,
she concluded the law, order and security were still prioritised over the rights of
women.106

2.6 Concluding Comments

In sum, it is clear there are a number of issues still to be resolved, for example, whether
SEA is criminal or merely a misconduct issue. The most relevant publications in
reference to this dissertation, are those which focused on the problems that Res 2227
attempted to address; Oswald, Smith, Whalan and Kihara-Hunt. This dissertation will
the focus on how Res 2272 attempted to address the problems. It will be argued that
the only effective remedy may be financial penalties; such as repatriation and non-
reimbursement of payments.

Chapter 3

104 S Smith., ’Accountability and Sexual Exploitation and Abuse in Peace Operations’ (2017) 71 (4)
Australian Journal of International Affairs 405-422
105 Ibid 406
106 Ibid 417

12
Chapter 5

5.0 Conclusion

In conclusion, it is acknowledged that SEA by peacekeepers is a major issue for states

undergoing the process of transitional justice. Much work is devoted to identifying gaps
in the legislation which leads to the lack of accountability on the part of peacekeepers.
This study argues that there is too much focus on prosecuting peacekeepers, rather,
there ought to be a greater focus on prevention from the inception of a PKO. Clearly,
sporadic policies in reaction to media storms is sufficient.107 There is obviously a
conflict of interest in the UN in terms of the tension between protecting its image and
tackling SEA.108 As I have shown, there are obstacles intrinsically within UN system

107 JK Westendorf and L Searle, ‘Sexual exploitation and abuse in peace operations: trends, policy
responses and future directions’ (2017) 93 (2) International Affairs 382
108 Ibid 383

13
itself. Firstly, the militarism and masculinity. The “boys club mentality” in the UN109
relegates the problem of SEA as SEA is seen as a “women’s issue”. Therefore, it
deprives of the urgency which is required to deal with the issue. I have highlighted the
issues surrounding the mechanisms of evidence, information sharing and data
collection. Thus far, data collection and evidence gathering has been sub-par, certainly
not sufficient to meet the standards of the ICC or even a domestic criminal court.
Inscrutable debates regarding accountability are too opaque to be productive.
Compounding this is the fact that the UN has limited power to compel TCCs to
prosecute their staff. Their domestic legislation may not apply and some human rights
obligations not substantially enforced. Human Rights records of some TCCs in
particular in terms of women’s rights, is lacking. This research has proven a lack of
political will on the part of TCCs and a lack of legislative authority on the part of the
Security Council to effectively eliminate the problem.
Finally, Resolution 2272 provided a ray of hope. It “can rightly be called ground
breaking”110. It has the potential to change the cultural norms of TCCs and PKOs. The
dissertation adopted the liberal feminist view-point in terms of working within the
existing system, Resolution 2272, to prevent gender-based violence and promote
equality. The Resolution allows for administrative sanctions on individual and entire
units of soldiers and police. The mechanisms include repatriation, non-reimbursement
and non-participation in future missions. It was recommended that a rating system in
terms of the level of SEA should be introduced. The DPKO would not have difficulty
recruiting troops as the ratings would be confidential. Keeping the ratings system
confidential would also ease the geopolitical divisions, in particular between the global
north and global south, surrounding the issue. Taking that to its conclusion, it is
suggested here that the text of Resolution 2272 should be used to the fullest of their
powers to sanction those who commit SEA.
Some academic argue that this problem is so complex, it cannot be solved with
merely administrative instruments, for example, Westendorf states:
The ‘train and punish’ logic that characterizes SEA policy also relies on the assumption that
technocratic policy ‘fixes’ are appropriate responses to complex social, political and economic
issues.111

She argues merely technocratic measure would not suffice.112 However, it is important
to measure outcomes and improvements, and the implementation of policies. That is
where it matters for the victims. What is suggested here is, no doubt, a blunt
instrument. Nevertheless, these measures may prove the most effective as they can
be implemented almost immediately. Other benefits of taking administrative action is
that there is not a requirement for the criminal law level of evidence gathering and
proof (beyond reasonable doubt). The standard of proof would be lower. Another
benefit is that it does not reply so much on cooperation of TCCs. It can be done
unilaterally.

109 M O’Brien, Criminalising Peacekeepers: Modernising National Approaches to Sexual exploitation

and Abuse (1st edn Springer 2017) 8
110 K Neudorfer, ‘UNSC Res 2272: Progress Against Sexual Abuse in UN Peacekeeping?’ E-

International Relations 21 April 2016 <https://www.e-ir.info/2016/04/21/unsc-resolution-2272-

progress-against-sexual-abuse-in-un-peacekeeping/> accessed 22 October 2018> accessed 23
December 2018
111 JK Westendorf and L Searle, ‘Sexual exploitation and abuse in peace operations: trends, policy

responses and future directions’ (2017) 93 (2) International Affairs 384

112 Ibid 385

14
However, measures taken so far have not prevented incidents occurring. As
Samantha Power said that trying the same thing over and over is insanity. 113
Something inexpensive that can be introduced more easily than an expensive tribunal
or truth commission. Need the socialisation of non-acceptance of SEA to be ingrained
in the culture of PKO.114 It is not a panacea and this author would recommend that
focus and resources should also be spent on victims and their ‘peace babies’.
Nevertheless, to prevent SEA, the administrative powers inherent in Resolution 2272
should be exploited in their fullest to enforce a culture change in the troops and police
of TCCs. This may prove valuable in mitigating stochastic SEA.

113
UNSC, 7642th Meeting (10 March 2016) UN Doc S/PV.7642 23
B Beber et al, ‘Peacekeeping, Compliance with International Norms, and Transactional Sex in
114

Monrovia, Liberia’ (2017) 71 International Organization 24

15
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