Routledge Handbook of Human Trafficking

by Piotrowicz, Ryszard; Rijken, Conny; Uhl, Baerbel Heide

  Since 2005, the United Nations (UN) has tried to address the issue, analysed by Prince Zeid’s Report,1 following a series of allegations by non-governmental organisations. At the same time, a UN Department of Peacekeeping Operations Policy Paper explored the issues related to peacekeeping and THB.2 It identified two main areas that may be relevant in assessing the role of peacekeeping and THB: the possible role of peace operations in supporting anti-trafficking activities in the region where they are deployed; and the involvement of peace operations personnel in activities related to THB.

  This chapter looks briefly at the two areas relevant to PKOs in the context of THB, and considers initiatives taken by the UN, other International Organisations (IOs) and national law developments. It looks at the possible implications of PKO missions in relation to THB, and at the role of PKOs in combating THB. It also considers the legal problems that emerge in effectively dealing with cases where peacekeeping personnel are involved in activities linked to THB.

  Introduction

  PKOs3 are well established institutions in international relations. Several IOs and States have contributed to this practice over the past 70 years. The original structure of PKOs, which comprised mainly military missions in conflict situations,4 has slowly incorporated post-conflict reconstruction in countries affected by armed conflict, with different mandates: from peace-enforcement to peace-building.5 Military components of PKOs have been integrated, since the late 1990s, to include other types of personnel, including police and civilian components, creating so-called multi-functional PKOs. According to the UN Department of Peacekeeping Operations (DPKO), the total number of personnel serving in the 16 ongoing peacekeeping operations is 112,911.6 These missions need longer periods of involvement in the areas affected by armed conflict to fulfil their mandate. Often the mandates include references to the protection of human rights, the establishment of the rule of law and new institutions that may ensure a peaceful environment, as well as development of the societies affected by the conflict.7 In certain cases, these activities may also indirectly foresee collaboration with local authorities to protect individuals against THB.8

  THB may be encouraged by the presence of thousands of international military and civilian officers, private contractors, local and international non-governmental organisations (NGOs), and charities.

  This chapter, in addressing THB and PKOs, starts from the premise that the two phenomena are very much related, and that the UN and States that contribute personnel deployed in PKOs have paid too little attention to the issue, including a lack of proper investigation and prosecution of individuals who, taking advantage of their position, commit certain crimes and abuses or exploit their privileged position. This is not only a matter of criminal responsibility for the individuals engaging in activities which may be linked to THB; it is also a matter of protection of individuals who are affected by the behaviour and acts of those who abuse a position of advantage. International personnel working in PKOs have economic, social, and legal advantages compared to the local population – advantages often linked to immunities and privileges foreseen by international agreements and rules adopted to protect their functions,9 but that have also been abused to create de facto impunity and a culture of immunity in international peace operations.

  Abuses, misbehaviour, and exploitation of individuals under the jurisdiction and control of PKOs have been denounced, and some initiatives to address the abuses taken. Most cases refer to sexual-related activities of individuals who work for, or under the supervision of, the UN. This chapter addresses particular concerns in relation to THB activities in areas where PKOs are deployed. First, it considers the role of PKOs in dealing with THB as part of their functions in relation to human rights protection. Second, it addresses individuals, deployed in PKOs, who engage in activities related to THB, either directly or indirectly. Finally, this chapter considers the possible responsibility of States and IOs when they do not deal properly with THB activities and fail to punish their personnel or provide adequate compensation and protection to the victims of abuses and THB, which may be considered a violation of States’ obligations under the Palermo Protocol10 and more generally under IHRL.

  Peacekeeping operations and human trafficking

  The purposes of PKOs have evolved significantly since they were first established.11 This means that from relatively small, almost exclusively military missions with a neutral or observation function to keep the parties to an armed conflict separated, they have become complex missions with multiple purposes.12 Initially, PKOs were established by the UN, with their mandate(s) defined by the Security Council. However, over time, other IOs, such as the Organisation of American States (OAS), the African Union (AU), and the North Atlantic Treaty Organization (NATO) have sent missions which fit into the broader category of PKOs.13 The same problems that affect the UN PKOs may affect other IOs’ operations; hence, the main focus will be on UN operations.

  The missions may include a variety of components which contribute to the various functions, and to achieve the purposes defined in their specific mandates. Many recent PKOs embrace peace-building functions, which usually include several objectives. Among them are the promotion of human rights; the establishment of new institutions, political, legal, and judicial reforms; and the reinforcement of the rule of law, as in the case of the UN Mission in Kosovo (UNMIK).14

  In this more complex reality, the relevance of addressing THB activities has become a significant task for two main reasons. First, personnel deployed in PKOs may be involved in activities that either directly or indirectly support THB that takes place in the areas under the control of international operations. The second is that IOs involved in PKOs should try to address THB activities because they affect the human rights of individuals in the areas under their control. Even if the PKOs’ mandates may not include specific actions in relation to THB, this issue should be taken into consideration when dealing with reconstruction and post-conflict activities of PKOs, as they aim at social and economic recovery of societies affected by violence and armed conflict.15

  The UN Security Council has called “upon all parties concerned to ensure that all peace processes, peace agreements and post-conflict recovery and reconstruction planning have regard for the special needs of women and children and include specific measures for the protection of civilians”.16 This resolution followed UNSCR 1325 regarding women in armed conflict, which emphasised the importance of addressing the protection of women and children in conflict and post-conflict situations, stressing “the need to implement fully international humanitarian and human rights law that protects the rights of women and girls during and after conflicts”,17 and the need to adopt “measures that ensure the protection of and respect for human rights of women and girls”.18

  One problem in dealing with sexual-related activities involving the local population and other individuals in the area of the mission is the possible link between prostitution, which in many countries is not prohibited, the local laws related to the age of consent for sexual intercourse, and possible sexual abuse and exploitation by international personnel. Addressing these issues is not an easy task, because unclear and different legal categories, depending on the specific laws of the sending States and the host States, have created more uncertainty in defining abuses of individuals subjected to sexual exploitation.

  In conflict and post-conflict situations,19 where PKOs are deployed, where local authorities are often unable to properly exercise adequate control, and where the number of sex workers and sexual-related activities seems to flourish, prostitution should be seen as a form of exploitation, and therefore as a prohibited activity.20 Personnel of international missions should behave in accordance with higher professional standards. This point has been underlined in the following terms by the UN:

  The use of prostitutes by United Nations personnel in mission areas constitutes exploitation and is prohibited. Even where prostitution is not a crime, the purchase of sexual services by
United Nations peacekeeping personnel constitutes an act of sexual exploitation.21

  The 2003 Secretary-General’s Bulletin (SGB) on Sexual Exploitation and Abuse22 explicitly recognises that the procurement of sexual services from nationals in a vulnerable context by a UN staff member (in a position of disproportionate power) constitutes an act of sexual exploitation, even in situations where prostitution is not a crime and may therefore not be punishable by the local legal system. The 2003 Bulletin23 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”. Sexual abuse is defined as the “actual or threatened physical intrusion of a sexual nature, whether by force or under unequal or coercive conditions”. The core elements of the definitions include: (a) sexual relations in a situation where one takes advantage of the victim, regardless of the age of the victim; or (b) sexual relations where the victim is less than 18 years of age. However, the document does not refer explicitly to THB. If the definition of exploitation is based, as mentioned before, on the exchange of sex for favour or money, we are still in a situation of exploitation. Given the strong link between THB and prostitution, it is arguable that limiting the use of prostitution could reduce the exploitation of individuals who have been trafficked for sexual exploitation, because of the reduction in demand.

  IOs, in particular the UN24 and NATO,25 have identified a possible role for PKOs in combating THB. The OSCE has issued specific guidelines for officers on mission, to avoid their inadvertent involvement in human trafficking activities:26 “OSCE officials shall adopt exemplary standards of personal behaviour to ensure the OSCE is contributing to combating trafficking in human beings, and is not exacerbating the problem”.27 In 2005, the Council of the European Union published Generic Standards of Behaviour for ESDP Operations, according to which peacekeepers:

  [S]hould be aware that both prostitution and the pornographic industry have established links with organized crime and human trafficking … Sexual exploitation and sexual abuse violate universally recognized legal norms and standards. They constitute acts of serious misconduct and are therefore grounds for disciplinary measures. Exchange of money, employment, goods or services for sex, including sexual favours or other forms of humiliating, degrading or exploitative behaviour, is prohibited.28

  The afore-mentioned documents identify the links between THB and international presence, focusing mainly on the individual behaviour of the international personnel deployed in the field.

  At the national level, the US Department of Defense adopted, in 2015, a Strategic Plan in relation to THB when US troops are deployed abroad, which includes a wide range of activities, but in particular focuses on:

  [D]eterrence of any activities of Service members, civilian employees, indirect hires, contractor personnel, and command-sponsored dependents that facilitate or support trafficking in persons … such as enabling prostitution or patronizing a prostitute, even though such activities may be legal within a host nation.29

  The Uniform Code of Military Justice makes US military personnel liable to criminal prosecution for ‘patronizing a prostitute’;30 and the Norwegian Armed Forces Code of Conduct prohibits the purchase of sexual services and relations that might otherwise weaken confidence in the impartiality of the force.31 These measures may be considered a positive trend towards the criminalisation of the use of sexual services, based on the experience of some States in addressing THB at the national level.32 However, it is still true that in many States, prostitution is considered an illegal activity, and criminal law measures tend to address prostitutes, mainly through criminal sanctions, rather than those who buy their sexual services. This is a debate that cannot be addressed here,33 but given that many peacekeepers come from countries where prostitution can be tolerated, or even be legal, their approach to the use of sexual services may be influenced by their perception of the social connotation of sex workers.

  The phenomenon of THB linked to PKOs may have severe repercussions for the success of international missions, because criminal organisations involved in THB are often associated with other criminal activities (i.e., arms and drug trafficking), creating a more violent and insecure environment. Therefore, the scope of the mission to provide stability and post-conflict reconstruction may be undermined by the acts of criminal groups, which are partly subsidised through the sex trade. The protection of human rights, often one of the major objectives of PKOs,34 is clearly undermined where personnel involved in a mission become, either directly or indirectly, accomplices of criminals who violate the fundamental rights of victims of THB.

  Since 2004, the DPKO has addressed the importance of dealing with THB in the context of PKOs: “[Despite the fact that the operations] are generally not well-suited, nor directly mandated, to deal with the challenges of combating human trafficking, DPKO is committed to playing a substantive support role in confronting human trafficking in mission areas”.35

  There are two main issues regarding PKOs and crimes related to human trafficking. One is the individual accountability of members of PKOs who engage in activities which are directly or indirectly linked to victims of THB. Some of these activities are also part of disciplinary or criminal misbehaviour, and can lead to legal and/or administrative sanctions against the individual concerned. A second aspect, that has not been properly addressed by the UN in relation to misbehaviour by peacekeeping personnel, is the responsibility and role of both host and sending States in the context of the wider phenomenon of THB, in particular in relation to the obligations that emerge under IHRL. These are addressed below.

  Sexual exploitation and accountability

  To understand why attention to THB in PKOs has become more prominent, it is important to remember that personnel engaging in PKOs have been accused of activities that may, in different ways, support and, indirectly, sponsor criminal networks involved in THB.36 Despite the widespread use of PKOs, it was only at the beginning of the twenty-first century that cases of sexual abuse and exploitation by peacekeepers began to emerge. It is not clear whether the engagement of peacekeepers in sexually related activities has actually increased, due to the growing number of deployed operations and personnel, or whether it was simply not taken into consideration in the past, due to lack of interest and adequate investigation, even within PKOs’ structures. However, attention has been drawn to the risks and problems that the deployment of international PKOs may have in the expansion of sexually related activities, from prostitution37 to sexual exploitation and abuses which involve the local population and THB networks that take advantage of the situation.

  The first issue is the emerging link of sexual exploitation that connects PKOs to THB. In the second part of this section, the possible measures that have been devised by different bodies and institutions to address the problems will be considered.

  PKOs and sexual exploitation and abuse

  In 2004, the UN identified the possible link between peacekeeping and sexual exploitation and abuse, and the perception of peacekeepers, “as more part of the problem than the solution, along with criticisms that the issue is not taken seriously by peacekeeping institutions”.38 Its paper recognised that “traffickers are likely to continue to target future missions as a source of demand, as clients for services”.39 Also, a 2004 NATO document refers to “[a] zero-tolerance policy regarding trafficking in human beings by NATO forces and staff”.40 These documents specifically mention THB. Their adoption derives from a series of allegations in relation to activities conducted by peacekeepers.41

  The problem of sexual abuse by peacekeepers has been acknowledged by the UN, but a series of reports published by the UN and other international institutions since 199542 shows that the phenomenon had been underestimated and not properly addressed by international and national authorities which deployed personnel in international missions. Abuse of women and girl
s in conflict and post-conflict situations has usually attracted limited attention. It is mainly since the 1993 Vienna Conference on Human Rights,43 and the subsequent case law developed by international criminal tribunals, that the prosecution of these crimes has gained more international recognition.44 This means that, despite the fact that these problems have been identified over the last 25 years, governments and IOs have not made enough efforts to address the phenomenon. This may be linked to a code of silence and a culture of impunity in the institutions involved that make any further progress quite difficult to achieve, as it has to address well-established habits and behaviours. The abuses in Kosovo and Bosnia-Herzegovina have been clearly documented, including how brothels, prostitution, and night clubs were linked to the international presence.45

  An independent study by UNIFEM, published in 2002, addressed the possible links between PKOs and THB.46 It showed UN peacekeepers’ involvement in sexual offences, including human trafficking, in Angola, Bosnia and Herzegovina, Cambodia, the Democratic Republic of Congo, East Timor, Kosovo, Liberia, Mozambique, Sierra Leone, and Somalia. However, the study also showed that, even if the UN was acting in individual cases to protect victims, the lack of proper investigation and sanctions against the alleged perpetrators was a major impediment to effectively tackling the phenomenon.