(2020) Pote devan lajistis ka abi seksyèl sou minè solda lapè yo komèt : yon rapo REDRESS ak CRIN

Litigating Peacekeeper Child Sexual Abuse LITIGATING PEACEKEEPER CHILD SEXUAL ABUSE LITIGATING PEACEKEEPER CHILD SEXUAL ABUSE 3 2 UN Photo/Sylvain Liecht 04/12/2013 MONUSCO Peacekeepers Patrol Town of Pinga, North Kivu Contents 1. Introduction 2. The Legal Context 3. Case Studies 4. Obstacles to Accountability and Redress 5. Strategic Litigation of Peacekeeper Child Sexual Abuse 6. Avenues for Strategic Litigation 9 12 22 48 53 63 Executive summary 4 7. A Human Rights-Based Approach 73 Case Study 1: Criminal and Civil Proceedings in Uruguay for Events in Haiti Case Study 2: Criminal and Civil Proceedings in France for Events in CAR Case Study 3: Right to Information Proceedings in Sri Lanka Case Study 4: Criminal Proceedings in DRC for Events in CAR Case Study 5: Paternity Claims in Haiti Case Study 6: Criminal Prosecution in Pakistan and Civil Proceedings in Haiti for Events in Haiti 22 27 33 38 41 44 8. Recommendations 81 End Notes 85 REDRESS is an international human rights organisation that represents victims of torture to obtain justice and reparations. We bring legal cases on behalf of individual survivors, and advocate for better laws to provide effective reparations. Our cases respond to torture as an individual crime in domestic and international law, as a civil wrong with individual responsibility, and as a human rights violation with state responsibility. CRIN is a global children’s rights advocacy network. Established in 1995, we press for rights – not charity – and campaign for a genuine shift in how governments and societies view and treat children. REDRESS and CRIN would like to express their thanks for the contribution of various individuals and organisations to this report. In particular they would like to thank the law firm White & Case for providing invaluable pro bono support on research, interviews, case study drafting and hosting events. The authors would like to thank those that provided comments on draft portions of the report, including Roisin Burke, Eléonore Chiossone, Larry Johnson, Sharanya Kanikkannan, Beatrice Lindstrom, Maxine Marcus, Sienna Merope-Synge, Kaila Mintz and Emma Schwartz. They also thank all those others that offered their time in being interviewed for the report: Eugène Bakama, Sylvestre Bisimwa, Marie Deschamps, Arsène Dieujuste, Rémy Djamouss, Carla Ferstman, Rosa Freedman, Peter Anthony Gallo, Charu Lata Hogg, Kathleen Jennings, Mario Joseph, Michel Kaboyi, Alicia Luedke, Beaupaul Mupemba, Ramita Navai, Adrien Nifasha, Sofi Ospina, Magda Pacholska, Homayra Sellier, Alvaro da Silva, Sarah Smith, Mark Snyder, Jasmine-Kim Westendorf, and a number of others that preferred not to be named. Design by Miriam Sugranyes. First published in January 2020. (c) REDRESS and CRIN 2019. LITIGATING PEACEKEEPER CHILD SEXUAL ABUSE LITIGATING PEACEKEEPER CHILD SEXUAL ABUSE 5 4 Executive Summary The widespread and enduring problem of sexual exploitation and abuse (SEA) by peacekeepers has been well documented over recent years. Many of the most disturbing cases have involved children, with peacekeepers from Sri Lanka, Uruguay, France, Pakistan and other countries implicated in crimes in Haiti, the Central African Republic, the Democratic Republic of Congo and elsewhere. Troop-contributing countries (TCCs) have shown themselves largely unable to prevent abuse, prosecute the perpetrators or provide redress to the victims. The UN’s role has also been criticised, prompting extensive internal reforms. Much of the analysis to date has focused on the shortcomings in the various mechanisms that are meant to prevent, prosecute and remedy instances of abuse. These include the control structures of peacekeeping missions; the safeguarding functions of UN agencies; the investigative processes of TCCs and the UN Office of Internal Oversight Services; the military or civilian criminal justice systems of TCCs and host countries; and structures for providing support to victims. When these mechanisms have broken down, the victims, their families, and the NGOs and lawyers that represent them have on occasions turned to the courts. The litigation undertaken by victims of peacekeeper child sexual abuse to date has, however, received relatively little analysis. Its extent, its effectiveness, the obstacles it faces, and the further opportunities available are the focus of this report. The key findings are as follows. Absence of litigation Extensive desk-based analysis and interviews by a multi-lingual research team from REDRESS and the law firm White & Case located only a small number of cases where victims had used the courts to address peacekeeper child sexual abuse – fewer than ten. While it is possible that there are cases the research did not locate, it appears clear that, despite the prevalence of peacekeeper child sexual abuse and the focus on peacekeeper SEA from an academic and policy perspective, litigation has been a relatively underused tool so far by the lawyers and NGOs seeking to address the issue. Obstacles to accountability and redress The findings from the case studies in the report confirm the commonly held view that peacekeeper child sexual abuse very often goes unpunished, and the victims are in most cases left without any form of reparations. In each of the case studies suspected perpetrators were not convicted or were subjected to lesser sanctions than their crimes merited. In not one of the case studies did the victim receive the full reparations to which they were entitled. The lawyers and NGOs interviewed repeatedly reported that their clients did not feel they had obtained justice. The case studies identify a number of main obstacles that prevent the perpetrators of child sexual abuse from being held to account, and that prevent victims from obtaining redress. A key factor was the quality of investigations, with fact finding by TCCs often being delayed or limited by an absence of properly trained investigators, for example in Haiti. Interviewees reported that in CAR French investigations were at times carried out without the presence of specialists in crimes involving minors, mental health professionals, or any assurances that the children would be placed in environments of personal security. Immunities and the exclusive jurisdiction of TCCs posed another significant obstacle, for example in the attempted prosecution of Pakistani peacekeepers for crimes committed in Haiti. Throughout the case studies any attempted criminal proceedings in the host countries were blocked by Status of Forces Agreements or by immunities, and any criminal prosecutions that did take place happened in the TCCs. This opened the door for a range of other difficulties, including the inability of the victims to participate in legal proceedings in foreign countries (for example in the DRC), a lack of capacity in the legal systems of TCCs (for example also in the DRC), difficulties in accessing and collecting evidence and an absence of political will in TCCs to prosecute their own soldiers (for example in Sri Lanka). A lack of transparency in prosecution processes, particularly in military court martial processes, was another significant barrier to justice. In many of the case studies it was impossible to determine whether and how the perpetrators were convicted and sanctioned. Even when those seeking to determine the outcome of cases resorted to freedom of information proceedings, they were unsuccessful. A range of reforms to policies, practices and legislation in TCCs and the UN are required to remove these obstacles to accountability and redress. These include improving the speed and quality of investigations and adopting a more victim-centred approach; amending TCCs’ laws and criminal procedures to make them suitable for prosecuting crimes overseas; increasing transparency and victim participation in prosecutions; suspending the deployment of peacekeeping troops from TCCs that are unable or unwilling to prosecute child sexual abuse; and addressing commonly-held misunderstandings of the immunity of those associated with the UN. Strategic litigation of peacekeeper child sexual abuse One avenue for seeking to bring about these necessary reforms is through strategic litigation. The use of strategic litigation in the peacekeeping context, involving both efforts to obtain reparations and ongoing advocacy for structural reform, could successfully prompt shifts in policies and attitudes resulting in substantive accountability and preventing future abuse. Strategic litigation in the peacekeeper context would employ various civil society techniques, including advocacy, community engagement, capacity building and campaigning, alongside work on legal cases. It would seek to bring about a range LITIGATING PEACEKEEPER CHILD SEXUAL ABUSE LITIGATING PEACEKEEPER CHILD SEXUAL ABUSE 7 6 of impacts beyond the immediate cases, including changing legal frameworks on jurisdiction and immunities; deterring peacekeepers from future abuses; improving internal policies on monitoring and training; working in partnership and alliance to implement the strategies suggested; and reducing stigmatisation and encouraging more victims to report abuse. These would also reinforce victims’ legal right to a remedy and further UN Sustainable Development Goal 16 by increasing access to justice and enhancing institutional accountability. A number of viable legal avenues exist for seeking to address peacekeeper child sexual abuse through litigation. These range from actions against the individual perpetrator, such as instigating criminal prosecutions and bringing direct civil claims (including paternity claims), to actions against the TCC, such as civil claims in domestic courts of the TCC or claims against the TCC at regional and international human rights bodies. Cases against the UN would be more challenging given the UN’s far-reaching immunities. Techniques that have been developed in other areas, such as the domestic prosecution of international crimes using universal jurisdiction or the international enforcement of commercial civil judgments, could be employed in this area to seek justice for victims. They would require increased coordination between lawyers and NGOs in host countries and TCCs. The regional and international human rights bodies in particular present as yet unused avenues for holding States to account for their failures to prevent, prosecute and remedy peacekeeper child sexual abuse. Key possible venues would include the UN Committee on the Rights of the Child, the African Committee of Experts on the Rights and Welfare of the Child, the UN Human Rights Committee, the Inter-American Commission on and Court of Human Rights, the European Court of Human Rights, the African regional human rights bodies and the Committee Against Torture, among others. A human rights-based approach While the human rights obligations of the UN to prevent and remedy peacekeeper child sexual abuse have been identified in analyses such as the 2015 Independent Review on Sexual Exploitation and Abuse by International Peacekeeping Forces in the Central African Republic, the human rights obligations of TCCs in this context have received less attention. Peacekeeper child sexual abuse and institutional failures to prevent, prosecute and remedy it implicate a range of rights under treaties such as the Convention on the Rights of the Child, the Convention on the Elimination of All Forms of Discrimination Against Women, the International Covenant on Civil and Political Rights, the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and the regional human rights treaties. Relevant rights include rights of children to be protected from sexual abuse, rights of women to be protected from SEA, rights to privacy, the prohibition on torture, rights to truth and rights to an effective remedy and reparations. There also exists a wide range of soft law that is widely accepted by States and offers guidance on how to investigate sexual violence, torture and other crimes. Legal hurdles to such claims, including attribution and jurisdiction, exist, but existing jurisprudence demonstrates they can be overcome. Human rights standards provide a crucial framework for assessing the UN and particularly TCCs’ successes or failures in preventing, prosecuting and remedying peacekeeper child sexual abuse. More pressure needs to be put on policymakers to ensure that the institutional structures responsible for preventing, prosecuting and remedying peacekeeper child sexual abuse meet these human rights obligations. A key objective for lawyers and NGOs engaging in strategic litigation should be to ensure that domestic and international courts and tribunals hold individuals and States to these standards. LITIGATING PEACEKEEPER CHILD SEXUAL ABUSE LITIGATING PEACEKEEPER CHILD SEXUAL ABUSE 9 8 1. Introduction Allegations of sexual abuse of children during peacekeeping operations and impunity for the perpetrators is a long- standing and much publicised problem. Complaints first emerged in the 1990s and have been made against military contingents, police, humanitarian and other civilian personnel in missions across a range of countries. Investigations into the issue suggest that sexual abuse has been widespread and that a range of organisations and individuals have been implicated. It has been the subject of a number of internal UN reviews and resolutions over the last two decades. 1 This report focuses primarily on legal avenues to combat impunity in cases of child sexual abuse by peacekeepers in UN operations. 2 In doing so, it does not seek to undermine the important and courageous work of the many people who work for the UN with the greatest levels of integrity in difficult and dangerous circumstances. Neither does the report ignore the broader, systemic issues of SEA of adults by peacekeepers and within the humanitarian sector more broadly. 3 The report’s focus reflects REDRESS’s mandate to seek justice and reparations in cases of torture (one of the many human rights violations potentially implicated by peacekeeper child sexual abuse 4 ), and CRIN’s expertise on children’s rights, given the particularly tragic nature of peacekeeper sexual abuse when committed against children. However, it is intended that the findings should also have a broader application outside that specific context. The report identifies challenges and lessons based on six case studies. These primarily concern allegations against UN military peacekeepers, as those are the claims that were identified through research for the report, and because, as an organisation working across the globe to uphold principles of international law, the UN should be the standard bearer for tackling impunity in this area. The report focuses principally on actions of the military personnel serving with TCCs, as opposed to civilian peacekeepers. However, the latter category is addressed at times. Although SEA in peacekeeping contexts is recognised as pervasive, the exact scale of the problem is hard to ascertain. The UN has only issued detailed data on allegations of SEA in its peacekeeping operations since 2015. Some information was held prior to that date but significant changes in methodology took place in 2007 and 2010, and victims’ ages were only recorded from 2008 onwards. 5 Concerns have been raised about the way in which data is gathered and recorded, 6 and that statistics fail to capture nuance or account for intersectional power dynamics in exploitative relationships between local inhabitants and peacekeepers. 7 Even so, the number of formal allegations that have been raised is disturbing. Between 2004 and 2016, the UN received almost 2,000 formal allegations of SEA by peacekeepers and other personnel involved in UN missions, including more than 300 complaints involving children. 8 The UN Secretary-General acknowledged in his 2017 Special Measures report on LITIGATING PEACEKEEPER CHILD SEXUAL ABUSE LITIGATING PEACEKEEPER CHILD SEXUAL ABUSE 11 10 SEA, “we feel certain that not all cases are reported” 9 and practitioners suspect that formal complaints made so far are only the “tip of the iceberg”. 10 The UN has repeatedly asserted a “zero tolerance” policy to SEA, stating its prohibition amongst UN personnel and affirming that every transgression will be acted upon. 11 Despite this, only a very small number of perpetrators have been convicted, and accountability and redress for victims is almost non-existent. This is partly due to jurisdictional obstacles, which prevent or limit the chances of prosecution of both military and civilian peacekeepers. Concerns have also been raised about a lack of independence and transparency in the UN’s handling of complaints of SEA within its operations, an unwillingness to confirm that functional immunity does not apply, as well as a lack of trained and experienced investigators. These issues are compounded by the contexts in which the abuse occurs – in situations of conflict and humanitarian crises where the local population is already struggling and legal institutions may be weak – and the difficulties in victims, especially children, conceiving of and accessing avenues for justice and redress. Purpose of the report REDRESS published a report in September 2017 on Sexual Exploitation and Abuse in Peacekeeping Operations focusing on what happens to the victims of such abuse, a subject often overlooked and marginalised in debates on accountability. It identified the tendencies to situate liability solely with the direct perpetrators, rather than the organisations and TCCs under whose mandate those individuals operated, and to ignore victims’ right to redress in favour of charity and benevolence. The report encompassed cases in which children were the victims of sexual abuse by peacekeepers and highlighted the particular gravity of these crimes committed against already vulnerable and marginalised individuals by the very people tasked to protect them. It identified the absence of legal redress and adequate and effective reparation for victims and noted the failure to address the problem as an urgent concern of the highest magnitude. Several national and international NGOs have tried to challenge the lack of accountability for sexual violence by peacekeepers by taking legal claims through the courts. However, these are often isolated examples and there has so far been no comprehensive study that identifies those cases, assesses their impact and considers how attempts to achieve accountability through litigation could be improved. The purpose of this report is to examine the use of litigation as a means of securing accountability and justice for the sexual abuse of children by peacekeepers. The report analyses a number of cases that examine previous attempts at accountability. These include French domestic proceedings for crimes committed in CAR, civil paternity claims in Haiti, freedom of information proceedings in Sri Lanka, domestic criminal proceedings in DRC, and a civil claim in Uruguay. The report identifies a number of obstacles currently faced by the NGOs and lawyers seeking accountability for child sexual abuse by peacekeepers. The report then goes on to examine how strategic litigation could be used to address the underlying causes of peacekeeper child sexual abuse and impunity. It outlines potential legal avenues that NGOs and lawyers acting on behalf of victims could use and concludes by setting out a human rights- based approach that could provide new substantive bases for seeking accountability in this area. The report concludes by setting out certain recommendations for reform that find new or further support in the findings of the research undertaken. They include reforms for addressing particular hurdles identified in the case studies, methods necessary for overcoming the challenges posed by sexual abuse against children specifically, and proposals for human rights-based strategic litigation to address existing failings. Methodology The process of preparing the report combined desk-based research with detailed interviews of individuals to identify relevant cases and assess their impact. A multi-lingual team from REDRESS and White & Case contacted over 70 key lawyers, activists, academics, journalists and former UN staff members that have worked on issues relevant to peacekeeper litigation across the world. Based on those contacts the team conducted over 30 interviews with individuals with particular knowledge of litigation relating to peacekeeper child sexual abuse. 12 Alongside this REDRESS convened a roundtable meeting with CRIN and other organisations to seek expert input on the direction of the study. In some of the cases featured a large amount of information was available publicly, and several individuals involved in the case were contactable and available for interview. In other cases, only a small amount of information was publicly available, and individuals involved were difficult to locate. This is reflected in the varying levels of detail in the case studies, and further underscores one of the key challenges to accountability being the lack of transparency in proceedings. LITIGATING PEACEKEEPER CHILD SEXUAL ABUSE LITIGATING PEACEKEEPER CHILD SEXUAL ABUSE 13 12 Victims defined The UN defines victims in the context of SEA as “a person who is, or has been, sexually exploited or abused by United Nations staff or related personnel and the allegation has been established through a United Nations administrative process or Member States’ processes as appropriate”. 17 This requires establishing proof of the allegation to a very high standard within a system in which UN personnel investigate possible misconduct by other members of the same organisation. The UN recognises that there may be a variety of reasons why the available evidence is insufficient to substantiate a complaint and that such a finding does not necessarily mean the allegation was false. 18 Nonetheless, its narrow definition of a victim, which is only conferred to those who have their complaint substantiated, risks being at odds with the principle that an individual’s status as a victim is not contingent on the apprehension of a perpetrator, which was affirmed in the UN Basic Principles and Guidelines on the Right to a Remedy and Reparation 19 and the 1985 Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power. 20 This is an important principle which recognises that victim status and the rights that flow from that are not contingent on the variables of a legal process over which the victim has little or no control. REDRESS’s previous report on SEA in peacekeeping operations noted this 2. The Legal Context Sexual abuse and SEA defined A wide range of acts with respect to children are covered by the term “sexual exploitation and abuse”, which include rape and sexual abuse, trafficking, exploitative relationships in which sex is required in exchange for things such as money, food, medicine and security. It is well established that rape and other forms of sexual violence frequently amount to torture and ill-treatment, and the gravity of these forms of criminal behaviour against children is often masked by the often-used acronym “SEA”. The UN defines sexual exploitation as “any actual or attempted abuse of a position of vulnerability, differential power, or trust, for sexual purposes, including, but not limited to, profiting monetarily, socially or politically from the sexual exploitation of another” and sexual abuse as “the actual or threatened physical intrusion of a sexual nature, whether by force or under unequal or coercive conditions”. 13 These definitions are endorsed by CRIN 14 and REDRESS. The UN Secretary-General’s 2017 report, Special measures for protection from sexual exploitation and abuse: a new approach, identifies different forms of sexual abuse against children as including: child rape, sexual assault, solicitation of child prostitution, trafficking for SEA, and other forms of sexual violence against children. 15 All sexual activity with individuals under 18 years of age is defined as sexual abuse by the UN. 16 narrow framing of the issue within UN reports. It highlighted that precisely who is a victim remains unclear, with references made in reports to “alleged victims” and systems for assistance distinguishing between complainants and victims, with more support provided to the latter. 21 As observed in the report, this is invariably an artificial distinction as processes to determine who is a victim are beset by the same problems that plague the criminal accountability process. Many individuals who were victimised are never recognised as victims due to difficulties in providing sufficient proof and the trauma involved in having to explain and be judged by people the victims perceive as being aligned to the perpetrators. 22 The UN data on SEA in field locations distinguishes between allegations involving one or more victims under the age of 18, those that do not involve a victim under that age, and those where the age of the victim(s) is currently unknown. 23 Applicable legal frameworks Although the UN has clearly defined—and prohibited—child sexual abuse, efforts to seek accountability for cases of child sexual abuse by peacekeepers have been largely unsuccessful due to a combination of factors, including (i) the absence of a single legal framework designed to cover peacekeeping troops and (ii) immunity protections for UN personnel, as the following sections now discuss. The Charter of the United Nations, which grants the UN Security Council the primary responsibility for the maintenance of international peace and security, does not explicitly envisage the creation of peacekeeping operations. 24 Perhaps consequently, the laws and policies governing peacekeeping personnel have developed in an ad hoc manner, resulting in a complex system of laws that have proven difficult to operationalize and provide only weak protections for victims of grave harms perpetrated by peacekeepers. In addition to the UN’s internal standards of conduct dealing with SEA—including the UN Secretary-General’s Bulletin adopting a zero-tolerance policy to SEA 25 (discussed above)— peacekeepers are subject to customary international humanitarian law (IHL), whether they are performing duties of an enforcement or peacekeeping nature. 26 Whether peacekeepers can be considered “parties” to an armed conflict within the meaning of IHL remains a subject of debate; 27 however, the UN has agreed that its troops are obligated to “respect and ensure respect” for the Geneva Conventions and its Protocols. 28 The extent to which the UN is bound by international human rights law (IHRL) obligations is also contested. However, many scholars agree that the broad protections enshrined by IHRL are incompatible with a doctrine of absolute immunity for international organisations, including the UN; similarly, courts have recently found that human rights-based challenges to UN immunity frameworks might succeed if an individual’s human rights have been violated by such immunity. 29 Accordingly, the UN (and TCCs) can likely be viewed as being bound by IHRL, including, for example, the duty to respect and ensure respect for the right to life and the prohibition against torture and ill-treatment, both of which are non-derogable, even in the context of armed conflict. Additionally, as this report highlights, many of the abuses committed by peacekeepers—such as SEA—can be considered “ordinary crimes” under domestic law, though they may also rise to LITIGATING PEACEKEEPER CHILD SEXUAL ABUSE LITIGATING PEACEKEEPER CHILD SEXUAL ABUSE 15 14 the level of war crimes or other IHL or IHRL violations. As such, peacekeepers are in theory subject as individuals to the criminal, civil and, in some cases, administrative laws of their home States (including military disciplinary procedures as per national military criminal codes or regulations). 30 However, as the following section discusses, immunities and jurisdictional challenges often frustrate efforts to seek accountability for abuses committed by peacekeepers in their home States. Immunity and jurisdictional challenges The UN’s founding treaties provide that it has the status of a legal person under the domestic law of its Member States. It enjoys on their territory such privileges and immunities as are necessary for it to fulfil its purposes, 31 and it “shall enjoy immunity from every form of legal process” in all its operations unless it expressly waives its immunity. 32 The UN and its entities, including peacekeeping missions, are immune from legal process on any subject and in any country. Routes to criminal accountability are also affected by UN immunities rules and the process that applies to an investigation depends on the status of the alleged perpetrator. 33 Peacekeeping troops Members of military contingents deployed in UN operations, as well as some police and civilian staff sent by their governments to fulfil military roles on those operations, remain under the exclusive criminal jurisdiction of their national government. According to the UN Model Status of Forces Agreement (SOFA), which governs the legal relationship between a peacekeeping operation and the host country, the exclusive responsibility to discipline and criminally sanction military contingents rests with TCCs. 34 Under the Memorandum of Understanding agreed between TCCs and the UN, those countries retain primary authority to investigate allegations of misconduct, including of SEA, and jurisdiction to impose criminal or disciplinary sanctions. 35 This provides protection from the jurisdiction of the host country, which is prevented from investigating or prosecuting any crimes except where a soldier is court-martialled in situ and transferred to local authorities for prosecution. 36 But even in those cases, the TCC holds the responsibility to determine how to respond to the matter. It is possible for a TCC to waive the jurisdictional bar that prevents investigation and prosecution by a host country, but this rarely happens. The UN must notify TCCs of any reports of SEA that implicate their military personnel and the sending State then has ten days within which to indicate if it intends to investigate the allegations (five days in the case of situations deemed to be of heightened risk). 37 The TCC can choose to investigate allegations of SEA in collaboration with the UN’s Office of Internal Oversight Services (“OIOS”). The UN can also initiate an administrative investigation where the TCC is unwilling or unable to do so, 38 and can start a preliminary fact-finding inquiry if necessary to preserve evidence if the government of the TCC does not start, or until it starts, its own investigation (at which point the fact-finding report will be transferred to the TCC). 39 Where the TCC conducts its own investigation, it must update the UN of progress on a regular basis, including the outcome of the case. 40 The UN has committed to repatriating military or police personnel “where there is credible evidence of widespread or systematic [SEA].” 41 The government of the TCC is obliged to ensure that the case is forwarded to the appropriate authorities for action. 42 TCCs can initiate court-martial or criminal prosecution proceedings against alleged perpetrators. However, this is only possible if they have legal authority to prosecute domestic crimes extraterritorially. Many States do not have this and those that do may face domestic pressures that limit the chances of bringing successful prosecutions (see further Chapter 4). In both circumstances, the result is impunity. Civilian peacekeeping personnel UN civilian staff are immune from any legal process for all acts performed in their official capacity. 43 Criminal acts of SEA do not constitute official acts of a UN employee, and are therefore not covered by this functional immunity. 44 However, the UN asserts the right to determine whether allegations constitute criminal behaviour and whether functional immunity applies to an alleged perpetrator. The effect of this is that UN personnel are shielded from legal processes in the host country while the UN evaluates the circumstances of the allegation and assesses whether immunity applies, meaning immunity applies until that assessment is completed. Additional protections are provided for experts on mission. They are deemed inviolable while on mission, 45 meaning they are immune from legal processes and afforded protection from any interference with their integrity during the mission. The highest levels of UN staff (this generally includes heads of peacekeeping missions) also have ‘personal’ immunity, 46 which accords them the same status as diplomats and means they cannot be charged with a crime or subjected to most civil proceedings. Where immunity does apply, the Secretary- General of the UN has the right to waive that immunity where it would “impede the course of justice”, 47 but this power is rarely used and prosecutions of UN civilian staff for crimes committed on overseas missions are extremely rare. Both the 2005 landmark report of Prince Zeid Ra’ad Zeid Al-Hussein into SEA on peacekeeping missions 48 and the subsequent report of the Group of Experts tasked to advise how best to overcome remaining legal barriers to criminal accountability of peacekeepers 49 recommended that immunity be waived to allow the host country to investigate and prosecute where appropriate. 50 LITIGATING PEACEKEEPER CHILD SEXUAL ABUSE LITIGATING PEACEKEEPER CHILD SEXUAL ABUSE 17 16 UN processes for handling allegations of SEA. 51 Member State  does not respond  or declines  to investigate REPORT RECEIVEDSOURCES OF REPORTS INCLUDE Outcome Reported to Sources of Reports ONGOING VICTIM ASSISTANCE 1 ALLEGATION RECORDED AS SEXUAL EXPLOITATION AND ABUSE SEXUAL EXPLOITATION AND A BUSE Management of Reports and Allegations Involving UN Personnel In Peacekeeping and Special Political Missions VICTIM WITNESS COMMUNITY-BASED COMPLAINT MECHANISM NGO MISSION STAFF  MEDIA UN 5  investigates Civilian, Police,  and Military Experts on Mission  personnel, as well as Military personnel  not investigated by Member State UN to complete investigation  in 6 months, where possible 6 UN completes investigation UN takes disciplinary action against civilians; UN may refer  to Home State for criminal  accountability  Member State reports to UN  on action taken Suspended payments are  transferred to the Trust Fund  in support of victims of sexual  exploitation and abuse For Military/Police personnel issues UN reports to Member State UN repatriates Military and  Police personnel, barring them  from future service Unsubstantiated Allegation Disciplinary action may still result for other breaches of rules Substantiated Allegation Member State has 10 days to notify UN whether it will investigate Military personnel 3 Member State investigates 2 Member State completes investigation Member State reports to UN  on conclusion and action taken Substantiated Allegation Unsubstantiated Allegation Disciplinary action may still result for other breaches of rules UN repatriates Military and  Police personnel, barring them  from future service Suspended payments are  transferred to the Trust Fund  in support of victims of sexual  exploitation and abuse FACT FINDING ASSESSMENT EVIDENCE PRESERVATION Victim  Assistance  Initiated 1 Interim action, e.g., administrative leave without pay Public Announcement by Mission UN CONCLUDES DISCIPLINARY CASE UN Notifes Member State of Military or Police contingent personnel Interim action, e.g., UN suspends payments Outcome Reported to Sources Public Reporting  on UN Website  4 Information assessed as not being sexual  exploitation and abuse Possible investigations for other breaches of rules DECISION POINT Member State  United Nations 1. Victims assistance includes medical and psychosocial services, as well as legal services  to assist with paternity cases 2. Secretary General requests Member States to adopt six month timeframe for investigations (A/70/729 para 50)        shortened to three months when circumstances suggest the need for urgency 3. Ten days timeframe for notification can be shortened to five days when circumstances suggest the need for urgency 4. www.conduct.unmissions.org 5. OIOS and/or Mission 6. Six month timeframe for UN investigations for SEA will be shortened  to three months when circumstances suggest the need for urgency (A/70/729 para 51) LITIGATING PEACEKEEPER CHILD SEXUAL ABUSE LITIGATING PEACEKEEPER CHILD SEXUAL ABUSE 19 18 their home State and civilians should be transferred to local authorities. However, the practice differs from the theory and there has been persistent failure to appropriately apply the rules relating to SEA in peacekeeping missions, resulting in an almost complete lack of accountability. The case studies within this report provide detailed examples of how the system operates in practice, and the challenges this poses are summarised in Chapter 4. Non-UN peacekeeping personnel Allegations of SEA have implicated non- UN personnel, such as staff of NGOs who implement UN programmes on the ground 52 or peacekeepers operating under mandates of regional organisations. 53 The UN has established an internal system to follow up allegations involving non- UN personnel with the relevant Member State and includes prevention and response measures in Security Council resolutions on country-specific situations. 54 Nonetheless, the extent to which UN doctrine and guidance applies to non- UN personnel operating within a UN- mandated mission is unclear. The failure of the UN to address child sexual abuse by French troops in Operation Sangaris, a Security Council- authorised mission in the Central African Republic that deployed alongside the UN operation MINUSCA, is discussed at Case Study 2 (French Sangaris peacekeepers in CAR). This case illustrates the lack of clarity and legal protection in this area. UN Security Council Resolution 2272 on Sexual Exploitation and Abuse (adopted in March 2016) “urges all non-United Nations forces authorised under a Security Council mandate to take adequate measures to prevent and combat impunity for sexual exploitation and abuse by their personnel.” It calls on UN Member States to repatriate their own units from non-UN missions where there is credible evidence of widespread or systemic SEA by those units, and to appropriately investigate allegations and hold perpetrators to account. 55 Ultimately, this merely “urges” non-UN forces to hold themselves to account and provides even weaker accountability measures than apply in full UN missions. Under the above frameworks, soldiers accused of SEA should be prosecuted by LITIGATING PEACEKEEPER CHILD SEXUAL ABUSE LITIGATING PEACEKEEPER CHILD SEXUAL ABUSE 21 20 CASE STUDY 6 PakistaniP peacekeeperspeacekeepers iin Haiti CASE STUDY 5 Paternity claims in Haiti CASE STUDY 11 Uruguayan peacekeepers in Haiti CASE STUDY 3 Sri Lankan peacekeepersp in Haitin CASE STUDY 2 French Sangaris peacekeepersacekeepers in CAR CASE STUDY 4 DRCRC peacekeeperse in CAR LITIGATING PEACEKEEPER CHILD SEXUAL ABUSE - CASE STUDIES LITIGATING PEACEKEEPER CHILD SEXUAL ABUSE LITIGATING PEACEKEEPER CHILD SEXUAL ABUSE 23 22 rights. MINUSTAH ended in October 2017 and was replaced by a smaller follow- up peacekeeping Mission, the United Nations Mission for Justice Support in Haiti (MINUJUSTH). 56 At its peak, nearly 7,000 soldiers and 2,000 police officers as well as civilians, served in Haiti; 57 the first peacekeeping mission to have a majority of troops from Latin America, with Brazil providing the largest contingent as well as the military commander of the peacekeeping forces. 58 Facts The United Nations Stabilization Mission in Haiti (MINUSTAH) was established by UNSC Resolution 1542 on 1 June 2004, following instability generated by the 2004 coup d’état against President Jean-Bertrand Aristide. MINUSTAH’s mandate was to restore a secure and stable environment, support the electoral process, and support the promotion and protection of human 3. Case Studies Case Study 1: Criminal and Civil Proceedings in Uruguay for Events in HaitiUN Photo/ Logan Abassi MINUSTAH’s record between 2004 and 2017 has been dogged by controversy. 59 MINUSTAH introduced a deadly cholera epidemic to Haiti through improper waste management that has killed over 10,000 people since 2010. 60 Its troops have also been accused of committing a number of other human rights abuses and crimes, including extensive SEA. 61 A 2013 UN investigation declared this particular form of violence the ‘most significant risk to UN peacekeeping missions’ and suggested that MINUSTAH experienced amongst the highest rates of SEA 62 despite the UN’s ‘zero tolerance’ policy. In July 2011, five marines from Uruguay stationed in the southern town of Port- Salut in a peacekeeping capacity sexually assaulted a local teenage boy named Johnny Jean, who at the time was still a child. 63 Jean was reportedly abducted on his way home from a football match and taken to the barracks of MINUSTAH, where he was beaten, and gang raped. The assault was recorded on a mobile phone by the peacekeepers, and the footage was leaked a month later, 64 resulting in protests in Haiti outside the UN base. 65 Shortly after the assault, the victim and his mother told Haitian radio stations that he was raped by the Uruguayan marines, and they gave evidence to the Haitian police and a local judge. 66 In response to the public outrage over Jean’s assault, Uruguayan President Jose Mujica wrote to Haitian president Michel Martelly, assuring him that the perpetrators would face the harshest possible sanctions. 67 For his part, President Martelly stated that he “vigorously condemned” the actions of those involved, and requested that the relevant authorities meet with UN officials to ensure that such acts did not occur again. 68 Additionally, in the wake of public outrage, the head of operations of the Uruguayan Navy in Haiti was dismissed from his position. Legal proceedings Several investigations into the alleged assault were opened by the UN Mission in Haiti, the Uruguayan Defence Ministry, and the Haitian authorities. A UN spokesperson stated that the five alleged attackers were confined to their barracks pending the outcome of three investigations and that, if the allegations proved to be true, the perpetrators “must be brought to justice.” 69 In its preliminary report, the UN stated that Johnny Jean had not been raped but that the troops were at fault for permitting a civilian to enter a military camp. 70 In September 2011, the five soldiers and their superior officer were repatriated to Uruguay. 71 Under the SOFA entered into by the Haitian government and the United Nations in 2004, Uruguay retained jurisdiction over its troops, granting the soldiers immunity from the Haitian State and placing the burden of prosecution on Uruguay. 72 Three proceedings then occurred in relation to Johnny Jean’s case: military, criminal and civil proceedings. Military procedure Under Uruguayan law, members of the military may be disciplined under both military and civilian law. 73 In this case, the accused soldiers were placed in jail during the initial investigations by the authorities. 74 At the time, a spokesman for the Uruguayan Defence Ministry said in a statement that “the Navy wants to go beyond the simple fact of the video [to determine] if there are other violations of conduct”. He added that the “suspects LITIGATING PEACEKEEPER CHILD SEXUAL ABUSE LITIGATING PEACEKEEPER CHILD SEXUAL ABUSE 25 24 The victim faced several difficulties over the course of the proceedings, including that the victim’s court-appointed translator could not speak Haitian Creole fluently, despite the victim’s testimony being central to the case. Mr Espérance expressed concerns about the Uruguayan lawyer who was appointed to the victim, stating that he did not believe the lawyer was defending the victim’s interests. Mr Espérance also voiced uncertainty about the UN, Uruguay and Haiti’s involvement in the case, and concern that the Haitian government appeared to fade into the background and was not involved in the judicial process. 84 He argued that the whole case appeared to be focused on how best to acquit the defendants instead of seeking justice and reparation for the victim. Following the victim’s testimony against the defendants, Mr Charles voiced frustration at the Haitian government’s indifference and lack of engagement in the case, which he argued amounted to an interference with Mr. Jean’s right to redress and access to justice. He stated that if necessary, they would launch a case against the Haitian government. 85 Following the victim’s May 2012 testimony, four defendants were charged with “private violence” (or “coercion”) rather than sexual assault, in late August 2012. The prosecutor in the case reportedly stated that the “the evidence on record does not support findings of sexual assault . . . [but that] force was used to oblige another person to tolerate an action against their will”. 86 In particular, the prosecutor determined that the evidence available did not demonstrate penetration sufficient for a criminal charge of rape. 87 Private violence is a lesser offence than rape or sexual assault under Uruguayan law, 88 and carries a penalty of between three months to three years in prison— will be tried and sentenced appropriately”. 75 Possible punishments included the possibility of a dishonourable discharge from military service or loss of retirement benefits. 76 On 19 September 2011, the five peacekeepers were charged by the military court for the “crimes of disobedience and omissions in the services,” and required to serve pretrial detention. 77 They were provisionally released in December 2011 pending the decision of the Uruguayan criminal court (see section below). 78 It is not clear whether the perpetrators faced any additional consequences as a result of the military procedure. Criminal procedure In January 2012, a UN official confirmed that the accused soldiers had been released from jail in Uruguay. According to the Uruguayan prosecutor in charge of the case, the inability to locate the victim for his testimony had effectively stalled the case. This argument was refuted by the victim, who stated in a telephone interview that no one had ever asked him to provide a testimony. He stated: “They know where to find me, if they take me, I will go.” 79 In May 2012, the victim travelled to Montevideo in Uruguay to testify against the defendants, although he received only partial financial support to do so. 80 He was accompanied by two American lawyers (Edwin Marger and Mike Pugliese), 81 Haitian lawyer Gervais Charles, and Pierre Espérance, director of the Haitian National Network for the Defence of Human Rights (RNNDH). Jean completed an additional series of medical exams upon his arrival in Uruguay. 82 During his testimony, the victim was asked to identify his abusers from a line-up of fourteen uniformed men. 83 Mr Espérance also confirmed that Johnny Jean testified against the soldiers on 10 May 2012 during a three-hour hearing. significantly less than for a rape charge 89 which carries a minimum of two years and a maximum of twelve years in prison. In March 2013, the defendants were convicted of the private violence charges, 90 and were sentenced to two years and one month in prison. The sentences were suspended and they did not spend any time in prison. 91 After the sentencing, the defence attorney claimed that Johnny Jean was lying about the abuse and requested an appeal of the conviction and an investigation against him for slander and defamation. 92 It is unclear whether the investigation against Johnny Jean was ever initiated, and the outcome of any appeals process is also unknown. Civil procedure In Uruguay, victims may claim damages in civil tribunals. Johnny Jean’s legal team brought a case against the Government of Uruguay before the Tribunal de lo Contencioso Administrativo, which handles claims against the State for the acts or omissions of State agents where potential damages exceed USD 17,000. 93 Johnny Jean faced several key challenges in bringing his civil case. Under Uruguayan law, the statute of limitations is not interrupted or suspended by ongoing criminal procedures, though some acts (such as an investigation) may suspend the limitation period. 94 Consequently, by the time his legal team sought to initiate civil proceedings, the limitation period—four years in Uruguay—had nearly run out. 95 Evidentiary challenges, stemming both from the location of the crime in Haiti and Johnny Jean’s present location in the United States, and language differences further complicated the civil proceedings. 96 Though Uruguay was required to respond to Jean’s claim within 30 days of its presentation (which occurred in July 2015), the government argued that the limitation period had run out, despite a prior administrative investigation that set 28 July 2015 as the deadline for submission. To settle this statute of limitations dispute, both parties were ordered to present all relevant evidence, including the date of the attack in question; reports from the prior criminal and military procedures; witness testimonies; and time-stamp information from the video of the attack. 97 This procedure has not been resolved yet. 98 Witnesses have testified, including the victim’s stepfather, who was among the first people aware of the event. The court has yet to analyse the memory card containing the video of the attack, which it received in December 2018. 99 Impact The unsatisfactory conviction of “private violence” in this case diminishes the severity of the assault and does not impose an adequate sanction on the perpetrators. The failure to recognize Johnny Jean’s legal status as a survivor of rape denies him an official apology, and amplifies the stigma associated with sexual assault. States are bound by international human rights obligations to provide adequate compensation for harms suffered. However, beyond the minimal financial assistance provided to defray the cost of Jean’s travel to Uruguay to testify, he has received no financial compensation or any other form of reparation to date. Today, despite ongoing support from his family, Jean continues to face serious mental health problems as a result of the assault and is unable to peacefully think of or plan for his future. Following the LITIGATING PEACEKEEPER CHILD SEXUAL ABUSE LITIGATING PEACEKEEPER CHILD SEXUAL ABUSE 27 26 rape, he felt obliged to leave his home of Port-Salut and seek refuge in the country’s capital Port-au-Prince, before moving to the United States. 100 Although this case caused public outrage both in Haiti and abroad, there is little evidence that it has had an enduring impact on how peacekeepers are regulated or policed outside of their own jurisdiction for criminal conduct that took place in the host country. Rather, Johnny Jean’s case highlights how UN soldiers committing human rights abuses while deployed on missions benefit from the existing legal and practical obstacles present in this case. Challenges/lessons learned Though the Uruguayan criminal justice system provided some measure of accountability for the abuses committed by the peacekeepers in question, significant evidentiary and logistical challenges impeded all three proceedings in this case. Most significantly, though defendants were sentenced through a domestic criminal procedure, the sanctions imposed were not proportionate to the gravity of the facts, making their deterrent effect doubtful. As noted, gathering evidence was difficult, both because the facts occurred in a second country (Haiti), and because the perpetrators were no longer in that country. Over the course of the multi-country investigation, the victim was examined by doctors and testified to judicial officers in both Haiti and Uruguay, reportedly resulting in his re- traumatization without any concomitant psychosocial support. 101 Further, it is understood that Johnny Jean’s case was not handled by investigators specialised in proceedings involving sexual violence, exacerbating the victim’s sense of shame in testifying about the events that had occurred. Johnny Jean would have benefited from both psychosocial support and access to a victims’ rights liaison familiar with similar cases of abuse at the hands of peacekeepers. 102 In this regard, Johnny’s situation as a child at the time of the events does not seem to have been considered during the proceedings. The geographical distance also placed a significant financial burden on the investigation—without pro bono support, the victim would not have been able to pursue the litigation. That Johnny Jean was in the United States at the time of the proceedings also complicated the case, due to time differences and the language barriers inherent in the case. Individuals working on the case expressed frustration that the UN and Haiti government’s involvement was limited, making the gathering of evidence more difficult and potentially frustrating any efforts to obtain reparations or redress for harms suffered. Despite initial public outrage when the Uruguayan media published Johnny Jean’s story, as the legal proceedings dragged on, interest faded. In this context, NGOs and lawyers involved in these cases could consider engaging with the relevant local communities through ongoing advocacy and activism, to encourage governments to participate fully in similar proceedings, though they also face challenges due to limited resources. Facts Operation Sangaris was a French military mission that operated in Central African Republic (CAR) from 2013 until 2016. The mission was sent to support the African Union Mission to the Central African Republic (MISCA) to prevent religious cleansing and potential genocide between the Muslim Séléka rebels in the north of CAR and the Catholic majority population in the south of CAR. The French government warned that the CAR was on the verge of genocide 103 and advocated at the UN Security Council for an intervention, resulting in the adoption of Resolution 2127. The tipping point is widely considered to have been when a leader of the Séléka rebel group, Michel Djotodia, declared himself President of CAR after his forces took control of the capital Bangui and forced President Bozizé to flee the country. Operation Sangaris officially began overnight on 5 to 6 December 2013 following the adoption of UN Security Council Resolution 2127. While France was authorized to engage in a peacekeeping mission by the Security Council, the Operation Sangaris troops were not UN peacekeepers per se. French forces first entered CAR in November 2013 after the request of the African Union Peace Case Study 2: Criminal Prosecution in France for Events in CARUN Photo/Catianne Tijerina LITIGATING PEACEKEEPER CHILD SEXUAL ABUSE LITIGATING PEACEKEEPER CHILD SEXUAL ABUSE 29 28 and Security Council (AUPSC) to provide support to the MISCA, and carried out peacekeeping, disarmament, and security restoration missions until 30 October 2016. The French intervention in CAR is widely believed to have prevented a rapidly destabilizing situation from descending into a violent genocide. Nonetheless, the French intervention was not without problems. Multiple allegations began to emerge that French troops in CAR had sexually abused children in internal displacement camps in exchange for food. 104 Legal proceedings French legal proceedings The UN was informed of the child sexual abuse allegations against French troops in the spring of 2014. 105 However, the case was only brought to the attention of the French authorities in late July 2014, when a confidential UN report was provided to France’s Defence Ministry by a whistle- blower, Anders Kompass, a relatively high- ranking official in the Office of the UN High Commissioner for Human Rights (OHCHR) in Geneva. 106 The six-page report had been drafted by Gallianne Palayret, a UN Human Rights Officer who conducted interviews with six young boys who said they had been lured into oral sex by French soldiers in Bangui, in return for food and sometimes money. 107 The report also mentioned peacekeepers from Chad and Guinea. These investigations were confirmed publicly in an April 2015 Guardian article, 108 after Aids Free World provided the newspaper with a copy of the report. The Paris Prosecutor’s office opened a preliminary investigation in July 2014. 109 Following the first investigations, a judicial investigation (“information judiciaire”) was opened in May 2015 led by three judges (“juges d’instruction”). 110 The judges focused on fourteen French soldiers. 111 French investigators were sent to CAR in 2015 and 2016 to question children that had come forward. It is understood that there were forty-one potential child victims. 112 Issues of reliability arose with some of the claims in the testimonies gathered by the investigators in CAR. 113 Presented with a number of pictures, a child claimed to recognize their aggressor despite the pictured person not having been in the military. Another was said to have conceded to having lied, and one child claimed to remember the name written on the alleged assaulter’s uniform but was unable to read the word “maman” (mother). 114 The assertion was that some children, given the lack of personal security in CAR, were using the process as an opportunity to receive aid and thus were fabricating accusations. 115 The teacher who had played the role of an intermediary in collecting victim’s testimonies and continued to be in touch with some children was also accused of corruption by the judges and excluded from the process. 116 However, interviewees have raised doubts about the quality of the investigations carried out, by both the UN and French investigators. Some children were interviewed several times, including shortly after the abuse, while others were only interviewed almost two years after the occurrence of the incidents. 117 It also remains unclear whether the UNICEF evidence-gathering mission took all the necessary precautions to fulfil the standards of proof for upcoming criminal proceedings. 118 The children involved did not receive any adequate assistance, especially medical care, which could have helped prove the sexual abuse given the lack of other evidence. 119 By the time French investigators arrived some children had already been interviewed a number of times and had not received the required trauma care. 120 Some of the French investigations were reportedly conducted without the presence of specialists in crimes involving minors, mental health professionals, or any assurances that the children would be placed in environments of personal security. 121 It is understood that a specialist in interviewing children was only included on one of the French investigative missions. 122 As a result, too little regard was given to the young age of, and the trauma suffered by, the victims. 123 In August 2015, four members of Operation Sangaris were interviewed by French investigators. It is understood that only one of them was placed under “garde à vue” or custody during the investigation. 124 Furthermore, despite the nature of the alleged violations, the judges preferred to use for the others the “audition libre”, the least demanding way of hearing suspects’ statements. 125 Whist members of the Operation Sangaris (adults and alleged perpetrators), who could have been interviewed several times without affecting the relevance of their depositions, were only interviewed once, children and alleged victims, for whom multiple testimonies were likely to weaken the administration of justice, were interviewed multiple times. 126 In March 2017, the prosecutors recommended that no charges be issued in the case as they were not able to “materially corroborate” the allegations. 127 With the investigators’ reports, the Prosecutor’s office decided there was insufficient evidence and in March 2017 requested for the case to be dismissed. 128 Almost a year later, in January 2018, the French magistrates dismissed the case against French soldiers. 129 Several civil parties (“parties civiles”) have participated in the case on behalf of the victims: ECPAT France, Enfance et Partage and Innocence en Danger. They intervened at the investigation stage by asking for further points to be investigated in CAR. However, their requests were rejected by the investigating judges. 130 Some have now appealed the decision not to prosecute, and the case is pending before the Court of Cassation. 131 If the Court quashes the decision, the case will go back to the lower court. 132 UN investigation On the orders of the UN Secretary-General at the time, Ban Ki-moon, following public outcry, a call for an independent investigation by the Code Blue Campaign, and demarches by UN Member States, the UN commissioned an independent review into the allegations and the UN response. The investigation was chaired by Canadian Justice Marie Deschamps. The Independent Report issued in 2015 found that the allegations of sexual abuse had been “passed from desk to desk, inbox to inbox, across multiple UN offices” without action. 133 The report stated that “the violations were likely not isolated incidents” and that “they could potentially indicate the existence of a pattern of sexual violence against children by some peacekeeping forces in CAR.” 134 The report found that at its source there was a misconception amongst UN staff about when they were supposed to report sexual assault. Two competing policies on sexual abuse seem to be at the source of this misconception. The first is a policy for UN officials to respond to instances of SEA by UN actors. The second is an obligation to protect vulnerable members of the local population, as rooted in the UN’s human rights mandate. In its conclusion, the report found that UN agents at times would see SEA perpetrated LITIGATING PEACEKEEPER CHILD SEXUAL ABUSE LITIGATING PEACEKEEPER CHILD SEXUAL ABUSE 31 30 by individuals not under UN auspices, such as the French forces in Operations Sangaris, and believe they had no need to report those crimes to their superiors. However, the human rights mandate in fact applies whenever the UN learns of a human rights violation. As such, even though the French presence was separate from the later “blue helmet” peacekeepers, the report reiterated that UN officials should still report when they witness human rights violations. A more contentious action taken by the UN was investigating the conduct of Anders Kompass, the UN official who first provided the report to French authorities. 135 At the time Anders Kompass was the Director of Foreign Operations and Technical Assistance for the Office of the High Commissioner for Human Rights in Geneva. Following his providing the report to the French authorities, Kompass was suspended for nine months and was faced with dismissal for his decision. It was reported that Kompass was driven by his belief that the UN had failed to take sufficient action to stop the abuse. 136 After a nine-month suspension Anders Kompass was exonerated by the independent review into the sexual exploitation by peacekeepers and an investigation by the Office of Internal Oversight Services. 137 Impact Victims To date, the French legal proceedings have not resulted in reparations for any of the victims. In 2017, the Guardian reported that children who had allegedly been abused by peacekeeping soldiers had not received support, despite assurances from the UN that they would be protected. 138 Civil parties involved in the French legal proceedings also stated that, to their knowledge, children had not received any compensation or support. 139 In March 2017, an investigation by Swedish television revealed that, while UNICEF was supposed to support the victims of abuse by peacekeepers, many of these children were homeless, living in the streets without protection. 140 UNICEF then acknowledged that it had failed in its duty to help the victims but that new steps were taken to locate and support the children featured in the programme. 141 One interviewee reported that UNICEF brought a psychologist from Senegal to examine the children, but that his recommendation they receive psycho-social support was never fulfilled. 142 Public opinion The case brought significant media attention in France and abroad to the issue of peacekeeper child sexual abuse. International newspapers, such the Guardian and The New York Times covered the Sangaris case from the initial news about the abuse to the decision to dismiss the case. 143 In France, newspapers of record such as Le Monde published a number of articles following the case. 144 The Sangaris case also raised awareness about the issue among the French legal community and mobilised NGOs to work on the issue, as attested by the number of civil parties that participated in the case. Even if the Court of Cassation were to uphold the decision to dismiss the case, the associations involved as civil parties have expressed their interest in continuing their advocacy and legal engagement to support child victims of similar acts of sexual violence. 145 The Sangaris case also had an impact on the African public opinion, particularly in CAR. Local newspapers covered the case and criticized the impunity of the soldiers, as well as the failure of the CAR government to protect its citizens. 146 While the authorities of CAR were not involved in the French legal proceedings, they publicly expressed their regret at the lack of consideration for the child victims after the dismissal of the case. 147 In fact, one investigation was opened by the Prosecutor in Bangui in April 2015, but it was closed and forwarded to the French authorities in June 2015. 148 French military The French army conducted a disciplinary investigation into the case and, according to a lawyer involved, the Sangaris case led the military to review and amend its policies on troop conduct when operating abroad. 149 However, as cautioned by other interviewees, 150 it is very difficult to access the internal policies and procedures of any military justice system. As a result, it is difficult to establish what effect any changes adopted by the French military have had. The lack of in-depth investigation into the acts of the main suspects and the dismissal of the case risk strengthening the feeling of impunity among members of the armed forces. 151 It is necessary for the French military authorities to put in place the appropriate policies to prevent these alleged crimes from taking place to preserve evidence in the event of future litigation. It is also important for them to state publicly the reforms implemented and the impact they have in preventing these types of violations in future operations. UN reporting Following the public attention on the UN’s inaction prior to the April 2015 publicity, there has been increased pressure on the UN to be more transparent about its reporting on SEA by peacekeepers. Following the Sangaris allegations, the UN took a number of steps. In February 2016, the UN appointed Ms. Jane Holl Lute as the Special Coordinator on improving the UN response to SEA. 152 Secretary-General António Guterres committed to a renewed zero tolerance policy in December 2016. 153 In August 2017, the UN appointed Ms. Jane Connors as the UN-wide Victims’ Rights Advocate at the UN headquarters. 154 Her role is to work with governmental, civil society, and legal and human rights organizations to build support networks to ensure remedies for victims are implemented. Some NGOs have, however, raised questions about the role’s lack of independence. 155 Challenges and lessons learned French legal system The French justice system appears to have failed to respond adequately to the multiple challenges raised by the case. The investigators sent to CAR were not specialised in complex crimes and did not have the expertise required to work with child victims of sexual abuse. Special guidelines and procedures are needed to ensure the independence and effectiveness of such kinds of complex overseas investigations in conflict and post-conflict areas. France has war crimes investigators who are gaining expertise in conducting these kinds of complex investigations involving vulnerable victims. But that expertise was used for this investigation as it was siloed into a military internal disciplinary matter. 156 In addition, the investigating judges did not take into account the recommendations and demands of the civil parties, despite their expertise in dealing with child victims and sexual violence. 157 LITIGATING PEACEKEEPER CHILD SEXUAL ABUSE LITIGATING PEACEKEEPER CHILD SEXUAL ABUSE 33 32 UN response While the Sangaris troops were not UN peacekeepers, the UN’s knowledge of their conduct still implicated the UN’s human rights obligations. The UN’s lack of effective response and undue delay in reporting to the French authorities posed significant obstacles to secure the evidence needed subsequently by the French authorities to investigate and prosecute. As with the French investigation, the UN investigation did not appear to follow best practices in interviewing child victims and failed to be accompanied by appropriate safeguards and psychosocial support. Whereas the UN system has developed advanced expertise in responding to and documenting conflict related sexual violence, peacekeeper SEA is siloed into a separate category of disciplinary infractions. As such, it appeared from the situation in CAR that the expertise from the human rights sector had not filtered into situations where the alleged perpetrators of the sexual abuse were foreign military forces. This was one of the core recommendations of the independent review: that acts of SEA must be addressed as part of the overall human rights and accountability framework, in addition to within the internal framework of UN disciplinary procedures. Victims of conflict related sexual violence at the hands of international peacekeepers whether UN or not should not have less access to justice than victims of conflict related sexual violence at the hands of national authorities, simply because of the affiliation of the alleged perpetrator. 158 While the publication of the independent review shows that the UN has taken some steps to correct past mistakes, the effectiveness of the new policies is not yet known and needs monitoring by civil society and other relevant stakeholders. Case Study 3: Right to Information Proceedings in Sri Lanka Facts An introduction to MINUSTAH is set out in Case Study 1 (Uruguayan peacekeepers in Haiti). The following case involved sexual abuse of at least nine Haitian children by more than 134 Sri Lankan peacekeepers from 2004 until 2007. At the time 950 Sri Lankans served with MINUSTAH. 159 News of the allegations against the Sri Lankan peacekeepers broke in November 2007, when Michèle Montas, the UNSG Spokesperson, announced that MINUSTAH had received allegations of SEA committed by the Sri Lankan contingent. According to a leaked OIOS report from 19 November 2007, 160 MINUSTAH requested that the OIOS initiate an investigation in August 2007, following a complaint by non- UN personnel that they had witnessed suspicious interactions between Sri Lankan soldiers and Haitian children. UN investigation In addition to OIOS investigators, a Sri Lankan team was sent from Colombo to assist with the examination, including a female officer. MINUSTAH and Sri Lankan authorities reportedly investigated the allegations of abuse and any possible command accountability. 161UN Photo/Pasqual Gorriz The Sangaris case also highlighted the failure of UNICEF in assisting and protecting child victims of sexual abuse by peacekeepers. The case illustrates the need for a holistic approach to these cases, involving the relevant UN bodies in the best interests of the child victims, to secure them adequate reparations and guarantee non-repetition. LITIGATING PEACEKEEPER CHILD SEXUAL ABUSE LITIGATING PEACEKEEPER CHILD SEXUAL ABUSE 35 34 Lankan forces are alleged to have been implicated in sexual abuse of children in Haiti, Sri Lankan investigations appear to have focused solely on 134 members of one contingent. 170 Although Sri Lanka, in its 2015 submission to the CAT, claimed that 23 individuals have been convicted, it remains unclear whether there have ever been sanctions following these convictions. 171 It appears that none of the perpetrators was imprisoned following their conviction. 172 An Associated Press (AP) investigation stated that the Sri Lankan government declined to respond to their questions, but eventually told them in early 2017 that they had conducted inquiries into just 18 of the 134 soldiers implicated. Sri Lanka’s submission to the Committee Against Torture (CAT) states that in June 2015 the UN Secretariat noted the outcome of its military court process and confirmed the matter closed. Sri Lanka’s High Commissioner to Canada later said that the UN Secretariat wrote to the government to say that it considered the matter closed as of 29 September 2014. 173 It is not clear why different dates were given. No statement has been issued by the UN to contradict the Sri Lankan assertion that the issue is closed. Legal Proceedings A Sri Lankan journalist seeking to find out more information about the outcome of the investigation against the soldiers, and whether they were held accountable for their crimes, filed a Right to Information (RTI) request with the Sri Lankan Right to Information Commission on 28 September 2017, 174 following repeated refusals by the Army to provide him with information. He asked to be given access to the names of the peacekeepers involved, the findings of the Court of Inquiry (e.g., reports or investigative notations), a Three months after initiating the investigation, the OIOS issued a preliminary report which found that at least 134 Sri Lankan military members (past and current members at the time of the report) sexually exploited and abused at least nine Haitian children. 162 The acts mostly occurred at night and at a variety of locations where the Sri Lankan military were deployed. Victims interviewed for the report include girls and boys as young as twelve years old. Some victims were sexually abused by more than 30 soldiers over the three-year period in exchange for food and money. 163 Immediately after the conclusion of the OIOS’s preliminary investigation, 114 of the 134 accused Sri Lankan soldiers were repatriated on disciplinary grounds. 164 In 2015, in the additional information to its fifth periodic report to the CAT, 165 the Sri Lankan Government released some details of how the peacekeepers were dealt with. 166 The Government said that it had established a military court of inquiry to investigate allegations against some members of the sixth contingent deployed to Haiti. 167 The High Commissioner to Canada, Ahmed A. Jawad, in a 2017 article stated that there were two courts of inquiry conducted, by the Sri Lankan army and the navy respectively, to investigate crimes committed in 2006 and 2007. 168 The OIOS inquiry report, however, made it clear that violations had been going on since 2004 from the arrival of the first contingent of Sri Lankans in Haiti. 169 It remains unclear exactly what the legal consequences have been in Sri Lanka following these allegations. There are significant discrepancies in this regard between the numbers given in various reports. Whilst the OIOS report finds that a minimum of 134 military members from different contingents of the Sri list of the allegations made by Haitian citizens (including the nature of the crimes committed, names of the victims, and any other relevant information) and details regarding the disciplinary action taken against eleven soldiers and three officers, such as: whether they were brought before a Court Martial, and if so, the outcome of this process and the names of the officers presiding the Court Martial; the list of the allegations/crimes; disciplinary measures taken against the persons accused; and case numbers of criminal actions before Sri Lankan courts if there were any. 175 In subsequent proceedings before the Sri Lankan RTI Commission, which commenced on 23 December 2017, the Sri Lankan Army challenged the RTI request on the basis that “it related to internal disciplinary measures”; that “the incidents took place in 2007 and republishing the details about this issue would tarnish the name of the SLA [Sri Lankan Army]”; that “only 3 peacekeepers had been involved … the number of those who were recalled did not necessarily correspond to those who had allegations against them”; and that “the actions taken by the SLA with regard to these allegations were already in the public domain”. Furthermore, the SLA Information Officer submitted that “revealing details about the Court of Inquiry proceedings would involve privacy concerns”. 176 The RTI Commission responded that “an information request can only be declined by citing one of the exemptions in Section 5(1) (a) of the RTI Act”. It stated that “claiming the SLA could not provide details of the result of an inquiry that has been concluded would amount to claiming a privilege, which is not provided for in the RTI Act”. The RTI Commission further stated that “in assessing the public interest in such matters … if there has been a process of inquiry, it is in the Public Authority (SLA)’s benefit to establish what concrete action it has taken regarding allegations made thereto”. 177 The RTI Commission ordered the SLA to prepare a summary of the findings of the Court of Inquiry for submission to the RTI Commission and adjourned the Appeal. 178 On 15 May 2018, the Appeal procedure resumed. The SLA submitted advice it received from the Attorney General’s (AG) Department, which stated that an exemption under Section 5(1) of the RTI Act would apply to the request. The RTI Commission highlighted that the exemption the AG had invoked was applicable only when the requested information was given or obtained in confidence and where it could be seriously prejudicial to Sri Lanka’s relations with any State, or in relation to international agreements or obligations under international law. The RTI Commission therefore asked the SLA to clarify “what international agreement or obligation under international law is at issue; the precise terms of the serious prejudice than can be caused; what information was given or obtained in confidence”. The appeal was adjourned until 3 July 2018. 179 On 3 July 2018, the SLA submitted that “all the allegations were duly investigated and awarded punishments through military procedure”, and that the UN investigation report was submitted to the SLA under “the security clarification of strictly confidential”, therefore the SLA could not disclose it to third parties, because to do so would “tarnish the image of the Army and affect the relations of Sri Lanka with friendly States”. 180 The RTI Commission stated that it would examine the report and make a decision on whether it should be disclosed. It adjourned the hearing until 07 August 2018. It appears that the RTI Commission has not taken a decision since July 2018. It has therefore not been possible to obtain any information about the outcome LITIGATING PEACEKEEPER CHILD SEXUAL ABUSE LITIGATING PEACEKEEPER CHILD SEXUAL ABUSE 37 36 their own troops. Various factors may be at the root of this unwillingness to take action. In the Sri Lankan case, it is understood that internal political factors and the position of the Army in Sri Lanka are likely to have played a role. An interviewee reported that mainstream political parties in Sri Lanka are unwilling to criticise the Army, for fear of being criticised by opposition parties, leading to a lack of political will for disciplining and punishing accused peacekeepers. 185 A Sri Lankan lawyer, K.S. Ratnavale, told the AP that prosecuting members of Sri Lanka’s popular military was often impossible due to victim intimidation, a lack of witnesses and poor evidence collection. 186 The lack of accountability for sexual abuse by Sri Lankan peacekeepers echoes the wider failure to redress sexual violence and other serious human rights violations committed by Sri Lankan security services in Sri Lanka over recent decades. 187 Human rights groups have repeatedly objected to Sri Lankan troops’ participation as peacekeepers while these domestic violations remain unaddressed. 188 Another challenge to litigating child sexual abuse by peacekeepers is highlighted in this case: the lack of public access to information regarding military accountability processes. In many cases it is difficult to access information on disciplinary measures and other internal military information. Even if the national authorities are willing to take action against the accused peacekeepers, and soldiers face a court martial, these procedures often lack transparency and victims are not able to access any information regarding the outcome. This does not allow victims to participate in the justice process and makes it even harder for the victims to obtain reparations. of the disciplinary measures taken against the more than 100 peacekeepers accused. It understood that some actions were taken against a handful of soldiers but nothing more. 181 Impact The lack of a decision from the RTI Commission precluded any possibility of the case having a legal impact. It has not set any new judicial precedent or changed any laws regarding access to information about peacekeeper child sexual abuse in Sri Lanka. From a victims’ perspective, the various challenges in the case also meant that little impact was achieved. The victims did not obtain justice, the truth was only partially revealed (and that was only from the leaked OIOS investigation report), and as far as can be determined no reparations were awarded. 182 It might be hoped that the public nature of the allegations and scandal that ensued would have led to a change in the Sri Lankan Army’s policies and attitudes in dealing with child sexual abuse. However, it would appear that given the lack of disciplinary action taken against the soldiers, little has changed. Further allegations of child sexual abuse by Sri Lankan peacekeepers in Haiti surfaced in 2013. 183 However, an interviewee did acknowledge that, whereas before this case came to light, the public was not aware of SEA committed by Sri Lankan soldiers outside Sri Lanka, now public awareness in Sri Lanka of the issue of SEA by peacekeepers seems to have grown, and it is generally considered to be unacceptable. 184 Challenges and lessons learned This case highlights the common problem of TCCs not being willing to act against Although freedom of information legislation can sometimes be used to try to access this information, the Case Study demonstrates the difficulties in doing so. The bases on which the Sri Lankan Army has so far sought to refuse the RTI request in this case have been wholly inadequate and have not met the criteria set down in the Sri Lankan legislation. This was confirmed in the initially robust responses from the RTI Commission. Despite this, the Sri Lankan Army was able to avoid providing the information sought. This lack of transparency and access to information impedes the public (journalists, NGOs, civil society, etc.) from demanding accountability. It also hinders the ability of victims and their lawyers to bring further legal claims seeking justice. The lack of transparency by the UN in its response to the abuses committed in Haiti further compounded the difficulties faced by victims in seeking justice, both in Sri Lanka and from the UN. The UN has yet to publicly release its preliminary report and does not appear to have advocated for or directly provided any form of reparations to victims. By continuing to treat cases of SEA as merely internal matters or disciplinary offenses, rather than criminal or civil law violations, the UN contributes to the perpetuation of a culture of impunity for the abuses discussed in this Case Study. LITIGATING PEACEKEEPER CHILD SEXUAL ABUSE LITIGATING PEACEKEEPER CHILD SEXUAL ABUSE 39 38 Facts MINUSCA (United Nations Multidimensional Integrated Stabilization Mission in the CAR) is a UN peacekeeping mission set up on 10 April 2014 by UNSC Resolution 2149 (2014). 189 It was set up to protect civilians and support the transition process (such as facilitating humanitarian assistance, protecting human rights, support for justice and the rule of law) in CAR amidst ongoing tensions between the rebel Muslim Seleka group and the Christian Anti Balaka group. 190 It is one of the UN’s biggest peacekeeping missions. It has a total personnel of 15,054. 191 The UN Conduct and Discipline Unit (CDU) has logged 129 allegations of SEA by MINUSCA peacekeepers since 2015. Of these, eight are alleged to have been committed by civilian staff, eight by police and 113 by military. 58 of these allegations involve child victims. 192 Following the public scandal involving the French-led Sangaris peacekeeping operation, MINUSCA itself has faced multiple public scandals involving SEA by peacekeepers. One of the most well-known cases involves military peacekeepers from DRC. During 2015 and early 2016, many allegations of rape and sexual abuse by DRC peacekeepers in CAR came to light. 193 Case Study 4: Criminal Proceedings in DRC for Events in CARUN Photo/Herve Serefio The UN made the decision to repatriate the DRC contingents involved. 194 Legal proceedings On 4 April 2016, a trial began before a military tribunal in Ndolo, a military prison north of Kinshasa. 195 Three of the 21 alleged perpetrators appeared before the court: Sergeant Jackson Kikola, charged with raping a young girl of 17 and for not following orders; Sergeant Major Kibeka Mulamba Djuma (on similar charges) and Sergeant Major Nsasi Ndazu, charged for attempted rape and disobeying orders. 196 The other 18 were due to be tried following the first three. National civil society groups, such as ACAJ – l’Association congolaise pour l’accès à la justice –monitored the trial by sending an observer to the hearings. 197 However, on 5 May 2016, the trial before the Ndolo military tribunal was suspended. 198 The defence team had asked that the alleged victims appear in person before the tribunal, and that they provide medical records proving that they were indeed raped. The tribunal accepted the defence’s requests and declared that the hearings would resume once the public prosecutor fulfilled this request. Since then, the hearings have not resumed, and the accused remain in prison to this day. 199 The hearings have not resumed because of the difficulties in providing what the defence team requested. It has not yet been possible to get the victims from CAR to DRC. The local government does not have the funds to fly and accommodate all the victims in DRC. Other solutions, such as using videoconference systems or sending a “commission rogatoire” 200 to CAR were not accepted, because they were not valid under Congolese law and criminal procedures. 201 An NGO working closely with the UN in the DRC reported a perceived reluctance on the part of the UN when trying to advance the proceedings and help the gathering of evidence. Communication between the United Nations Organisation Stabilisation Mission in the DRC (MONUSCO) and MINUSCA in the CAR was perceived to be difficult. 202 Impact The DRC justice system’s inability to overcome the evidential challenges in this case limited the possibility of any positive impact. No legal change has been evident, given the suspension of the trial with no indication that it will continue in the near future. The victims were not able to obtain justice, investigation of the facts and determination of the truth was not possible, and no reparations appear to have been awarded. No changes in national policies or the relevant authorities’ attitudes were identified. The absence of a conviction means that the case is unlikely to have applied pressure on the Congolese military to change their policies or behaviour. It is difficult to determine whether this particular case has had any impact on the attitudes of the Congolese population as a whole. SEA by soldiers, police, armed groups and others is already a widespread issue in the national context. A lack of accountability for sexual violence and other crimes within the national context in DRC is equally common. 203 However, it appears that the case may have had some impact in creating awareness and initiating dialogue as a result of work by national civil society groups, such as ACAJ, to monitor and publicise the events at the trial. 204 It remains to be seen whether the national prosecuting authorities will find a way to continue the trial and ensure LITIGATING PEACEKEEPER CHILD SEXUAL ABUSE LITIGATING PEACEKEEPER CHILD SEXUAL ABUSE 41 40 accountability for the crimes committed. It also remains to be seen whether DRC’s steps in commencing proceedings and detaining the suspects in custody in this case will be repeated for other allegations. Challenges and lessons learned This case highlights a significant challenge faced when trying to litigate SEA committed by peacekeepers. Because of the exclusive jurisdiction of the TCC to prosecute its military troops, the trial of peacekeepers often happens far away from the country in which the alleged crimes actually took place. This can lead to various issues and challenges for both the prosecuting authority and for victim participation. For the prosecuting authority, as seen in this case, there can be issues linked to procedural rules regarding testimony and evidence. The investigation itself can be difficult to carry out given that most of the people and material evidence involved are not in the same country as the investigating authorities. This can pose challenges for the preservation of material evidence and where legal systems require in-person testimony from victims and witnesses. From a victims’ point of view, even if the TCC’s legal system allows them to take part in the trial, when the trials are taking place in a different country, sometimes thousands of miles away, and the victims are from conflict affected countries with limited resources, it is nearly impossible for them to participate in the process, unless they receive assistance from the TCC, the UN, their own State or civil society. This case highlights the challenge posed by a lack of resources in the TCC’s justice system. In this particular case, the trial came to a standstill because the Congolese authorities did not have the resources needed to bring the victims and witnesses from CAR to the DRC. When a TCC itself has internal political, security and human rights challenges, it may lack the necessary ability, resources or political will to seek accountability and provide justice for SEA by peacekeepers. In the DRC’s case, the country is facing internal issues that include armed conflict, extreme poverty, widespread corruption and political instability, issues that are so serious that it is host to its own UN peacekeeping mission, the MONUSCO. 205 The case highlights a further issue. National human rights violations by the Congolese armed forces, the FARDC (Forces armées de la République démocratique du Congo) have been well documented by the UN itself, through the UNJHRO’s monthly reports on human rights violations in the DRC. 206 The question therefore arises as to whether it is appropriate for the UN to employ peacekeepers from armed forces that are known to have committed human rights violations and have demonstrated an inability to act in accordance with international human rights standards. Case Study 5: Paternity Claims in Haiti Facts An introduction to MINUSTAH is set out in Case Study 1 (Uruguayan peacekeepers in Haiti). One legacy of MINUSTAH’s time in Haiti has been ‘peacekeeper babies’: children raised by single mothers who have been abandoned by their peacekeeper fathers. These children often occupy precarious socio-economic positions, lacking the resources for adequate healthcare and/or education. 207 Many of these single mothers have been engaged in “long and largely fruitless” legal battles to force peacekeepers who fathered their children to acknowledge paternity and contribute child support. 208 Shortly before publication of this report new findings emerged reporting hundreds of peacekeeper babies in Haiti, including born to children as young as eleven. 209 Ten of these women – with twelve children in total - are supported by lawyers at the Institute for Justice and Democracy in Haiti (IJDH) and Bureau des Avocats Internationaux (BAI). 210 Some of the claimants have children born from consensual relations within personal relationships, while others were in transactional relationships involving the exchange of money. One was a child, aged 17, at the time of her relationship with the UN Photo/Albert Gonz