Routledge Handbook of Human Trafficking

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

  Conclusions

  The UN has taken a long time to deal with THB where PKOs and international missions are deployed. The presence of a PKO has often been accompanied by an increase in prostitution and the availability of sexual services, often provided by victims of THB.

  The UN has mostly considered the involvement of PKO personnel in sex-related abuses as a matter of discipline, and has not done enough to ensure that individuals are effectively prosecuted by national authorities and that victims get adequate redress. At the same time, the nature of PKOs creates legal gaps and provides room for impunity of individuals. Possible gaps in the accountability system, and the relatively fast turnover of personnel, often foster a sense, or even a culture, of impunity110 that has been identified as a real problem in the misbehaviour of personnel in PKOs. A stricter approach towards the identification of people who are trafficked for sexual exploitation might limit the allegations of abuses and exploitation by PKOs.

  The main focus of the UN reports and actions has been on individual misbehaviour. Cases of sexual exploitation and abuse are treated as isolated incidents, and the individuals concerned considered responsible for their actions. This approach is certainly in line with the notion of individual criminal responsibility and should be supported and reinforced. Individual members of PKOs should be held accountable when they engage in sexually related activities which may be linked to THB. However, the proper prosecution of individuals for sexual abuse needs more attention, and a more effective response, from both States and the UN. Recent cases show a more robust reaction by the UN Secretariat, and show a trend to make States more responsible for the proper investigation and prosecution of individuals.111 In particular, the measures taken by the Secretary-General since 2015, including administrative sanctions – such as the suspension of payments in cases of credible allegations of sexual abuses,112 the referral to host country judicial authorities,113 and publicly disclosing the nationality of individuals involved in sexual exploitation and abuses114 –may encourage concrete measures by States.

  The Secretary-General has also reminded States that they should take further steps in the adoption of a convention addressing the accountability of peacekeepers. Such an instrument should include the crime of THB, in order to send an explicit message that involvement in trafficking would lead to prosecution.

  States and the UN should take a more co-ordinated approach that would address the link between sexual exploitation and human trafficking. A DPKO manual on gender recognises that “women may turn to prostitution to have money to feed their children”, due to the situation in the field, and that a war economy favours prostitution and exploitation.115 Consent to sexual activity could be immaterial where it is obtained in the context of PKOs, because the perpetrators are there to protect people, not to exploit them. Therefore, suggestions that sexual intercourse should not be considered illegal if the consent of the other person is present are incorrect. Peacekeeping personnel enjoy a special status, including a position of authority, and are economically advantaged. It would be very difficult to distinguish cases where they are not abusing their position in relation to individuals who may be victims of THB from other cases in which sexual services may be provided. Furthermore, despite the discussion concerning issues related to prostitution that was mentioned before, the International Convention on the Elimination of All Forms of Discrimination Against Women,116 affirms (Article 6) that: “States Parties shall take all appropriate measures, including legislation, to suppress all forms of traffic in women and exploitation of prostitution of women”. Therefore, there is already a clear obligation to address the two phenomena, which under international law are prohibited.

  Sexual exploitation and abuses have attracted more attention than THB in PKOs. It is important that proper mechanisms address individuals’ misbehaviour and abuses, but also it should not be forgotten that an international presence in certain areas can be the cause of the problem.117 THB activities have been documented in areas where PKOs are deployed, and the UN, with the co-operation of Member States – most of which are parties to the Convention against Transnational Organized Crime and the Palermo Protocol – should take stronger collaborative measures to address trafficking where the PKOs are deployed. This includes a more co-ordinated approach among the UN, its agencies operating in the area, the States sending their personnel on PKOs, and the host States; but it is also important to involve neighbouring States, from which victims may have been trafficked, in dealing with THB. The mechanisms that are devised now for dealing with sexual abuses, including special investigation units and gender specialists, could be used to address THB issues where PKOs are deployed. This would avoid duplication of effort, and could address the two different, but also related, issues of sexual abuse and THB.

  The UN and its Member States should increase their efforts to address abuses committed by individuals operating under the international mandate. The occurrence of THB affects not only the credibility of international commitments towards peace, but also the human rights of victims. Effectively addressing THB and related crimes should be a priority, both for the UN and for its members.

  Notes

  1 UN, Report of the Secretary-General’s Special Advisor, Prince Zeid Ra’ad Zeid al-Hussein on A Comprehensive Strategy to Eliminate Future Sexual Exploitation and Abuse in United Nations Peacekeeping Operations (UN Doc. A/59/710, 24 March 2005) (hereinafter ‘Zeid Report’).

  2 UN, Human Trafficking and United Nations Peacekeeping (DPKO Policy Paper, March 2004), http://www.un.org/womenwatch/news/documents/DPKOHumanTraffickingPolicy03-2004.pdf.

  3 UN, United Nations Peacekeeping Operations: Principles and Guidelines (New York: DPKO, 2008); McCoubrey, H. and White, N.D., The Blue Helmets: Legal Regulation of United Nations Military Operations (Aldershot: Dartmouth Publishing, 1996); Bellamy, A.J., Williams, P.D., and Griffith, S., Understanding Peacekeeping (2nd edition, Cambridge: Polity Press, 2010); Koops, J., MacQueen, N., Tardy, T., and Williams, P.D. (eds.), The Oxford Handbook of United Nations Peacekeeping Operations (Oxford: OUP, 2015).

  4 For example: United Nations Truce Supervision Organization (UNTSO), established in Palestine in 1948; and the United Nations Military Observer Group in India and Pakistan (UNMOGIP), deployed in Kashmir in 1949.

  5 Malone, D.M. and Wermester, K., “Boom and Bust? The Changing Nature of UN Peacekeeping” (2000) 7(4) International Peacekeeping 37–54; Report of the Panel on United Nations Peace Operations (Brahimi Report) (UN Doc. A/55/305 –S/2000/809, 21 August 2000); UN Peacekeeping Operations: Principles and Guidelines –“Capstone Doctrine”, Department of Peacekeeping Operations (New York, 2008), Chapter 2.

  6 UN, Peacekeeping Fact Sheet (30 April 2017), http://www.un.org/en/peacekeeping/resources/statistics/factsheet.shtml. The number includes: uniformed personnel (troops, civilian police, and military observers): 95,993; civilian personnel (international and local): 15,319; UN Volunteers: 1,599.

  7 Katayanagi, M., Human Rights Functions of United Nations Peacekeeping Operations (The Hague: Martinus Nihjoff, 2002).

  8 UN, Human Trafficking and United Nations Peacekeeping (DPKO Policy Paper, March 2004), http://www.un.org/womenwatch/news/documents/DPKOHumanTraffickingPolicy03-2004.pdf

  9 Article 105 of the UN Charter confers upon UN officials “such privileges and immunities” as are necessary for the independent exercise of the UN’s functions; UN General Assembly, Privileges and Immunities of the United Nations (A/RES/22, 13 February 1946).

  10 Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime (Doc. A/55/383, United Nations, New York, 15 November 2000), entry into force 25 December 2003; 2237 UNTS, 319.

  11 Bellamy, A.J., Williams, P., and Griffin, S. Understanding Peacekeeping (2nd revised edition, Cambridge: Polity Press, 2010).

  12 On the possible definitions and tasks of these operations see: UN Peacekeeping Operations: Pri
nciples and Guidelines –‘Capstone Doctrine’ (DPKO, New York, 2008; Part I, Chapter 2 [2.3 and 2.4]). See also: Report of the Panel on United Nations Peace Operations, UN Doc. A/55/305-S/2000/809 (21 August 2000).

  13 See: Coleman, K.P., International Organisations and Peace Enforcement: The Politics of International Legitimacy (Cambridge: Cambridge University Press, 2007).

  14 UNSC, Res. 1244 (10 June 1999).

  15 See, for instance, the creation of Transnational Crime Units after the experience of the West Africa Coast Initiative in 2010, including the co-operation of the Economic Community of West African States, the Department of Political Affairs of the United Nations Secretariat, the United Nations Office for West Africa, and the International Criminal Police Organization (INTERPOL), the UNDPKO, and the United Nations Office on Drugs and Crime.

  16 UNSC Res. 1674 (28 April 2006).

  17 UNSC Res. 1325 (31 October 2000), preamble.

  18 Idem, para 8(c).

  19 See: Wölte, S., Armed Conflict and Trafficking in Women (Eschborn: Deutsche Gesellschaft für Technische Zusammenarbeit (GTZ) GmbH, January 2004).

  20 In the preamble to the United Nations Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others, of 2 December 1949, the Parties recalled that prostitution is “incompatible with the dignity and worth of the human person”; and Article 6 of the 1979 Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) explicitly requests States Parties to “suppress all forms of traffic in women and exploitation of prostitution of women”.

  21 UN Office on Drugs and Crime (UNODC), Toolkit to Combat Trafficking in Persons, 2nd ed. (New York: United Nations, October 2008), p. 480.

  22 UN Secretariat, Secretary General’s Bulletin, Special Measures for Protection From Sexual Exploitation and Sexual Abuse (UN Doc. ST/SGB/2003/13, 9 October 2003) (hereinafter ‘2003 Bulletin’).

  23 Section 1.

  24 UN, Human Trafficking and United Nations Peacekeeping (DPKO Policy Paper, March 2004) (n.2) above.

  25 NATO Policy on Combating Trafficking in Human Beings, Policy Document, adopted by the Istanbul Summit, 29 June 2004. http://www.nato.int/docu/comm/2004/06-istanbul/docu-traffic.htm.

  26 OSCE, Anti-Trafficking Guidelines (1 June 2001), www.osce.org/odihr/17566.

  27 OSCE, Code of Conduct for Staff/Mission Members (Appendix 1 to the OSCE Staff Regulations and Staff Rules, Permanent Council Decision 550/Corr.1, 27 June 2003), section 4.

  28 Council of Europe, Generic Standards for ESDP Operations (Brussels, 18 May 2005), p. 8.

  29 US Department of Defence, Strategic Plan for Combating Trafficking in Persons (CTIP) 2014–2018 (DoD Instructions, 21 April 2015), p. 4, http://ctip.defense.gov/Portals/12/Documents/Strategic_Plan_FINAL.pdf.

  30 18 USC §834, Executive Order 13447 (Annex), 28 September 2007.

  31 Allred, K.J., “Combating Human Trafficking”, NATO Review (Summer 2006).

  32 This is often referred to as the Nordic Model approach to prostitution (also known as the Sex Buyer Law). See: Ekberg, G., “The Swedish Law that Prohibits the Purchase of Sexual Services: Best Practices for Prevention of Prostitution and Trafficking in Human Beings” (2004) 10(10) Violence Against Women 1187–1218. See also: European Parliament, Resolution on Sexual Exploitation and Prostitution and Its Impact on Gender Equality (Strasbourg, 26 February 2014).

  33 Skilbrei, M.-L. and Holmström, C., Prostitution Policy in the Nordic Region: Ambiguous Sympathies (London and New York: Routledge, 2016); Cho, S.Y., Dreher, A., and Neumayer, E., “Does Legalized Prostitution Increase Human Trafficking?” (2013) 41 World Development 67–82.

  34 See: UNSC Res. 1925 (28 May 2010), para 12(c); UNSC Res. 1509 (19 September 2003), para 3 (l) and (m).

  35 DPKO, Human Trafficking and United Nations Peacekeeping (Policy Paper, March 2004) (n. 2) above.

  36 Smith, C.A. and Miller-de la Cuesta, B., “Human Trafficking in Conflict Zones: The Role of Peacekeepers in the Formation of Networks” (2011) 12 Human Rights Review 287–299.

  37 Allred, K.J., “Peacekeepers and Prostitutes: How Deployed Forces Fuel the Demand for Trafficked Women and New Hope for Stopping It” (2006) 33(1) Armed Forces & Society 5–23.

  38 UN, Human Trafficking and United Nations Peacekeeping (DPKO Policy Paper, March 2004) (n. 2) above, p. 1.

  39 Ibid.

  40 NATO Policy on Combating Trafficking in Human Beings (n.25), above, para 1.

  41 See (n.36, 42, and 43) in this chapter.

  42 Phal, K.S., “The Lessons of the UNTAC Experience and the Ongoing Responsibilities of the International Community in Cambodia” (1995) 7(2) Pacifica Review 129; Lupi, N., “Report by the Enquiry Commission on the Behavior of Italian Peacekeeping Troops in Somalia” (1998) 1 Yearbook of International Humanitarian Law 375; Human Rights Watch, Hopes Betrayed: Trafficking of Women and Girls to Post-Conflict Bosnia and Herzegovina for Forced Prostitution (2002); Martin, S., Must Boys be Boys? Ending Sexual Exploitation and Abuse in Peacekeeping Missions (Washington, DC: Refugees International, 2005).

  43 World Conference on Human Rights, Vienna, 14–25 June 1993, Vienna Declaration and Programme of Action (A/CONF.157/23, 12 July 1993), para 18.

  44 ICTY, Prosecutor v. Delalic, Case No. IT-96–21, Judgment (16 November 1998); ICTR, Prosecutor v. Akayesu, Case No. ICTR-96-4-T, Judgment (2 September 1998).

  45 See: Mendelson, S.E., Barracks and Brothels: Peacekeepers and Human Trafficking in the Balkans (Washington, DC: Center for Strategic and International Studies, 2005).

  46 Rehn, E. and Sirleaf, E.J., Women, War and Peace: The Independent Experts’ Assessment on the Impact of Armed Conflict on Women and Women’s Role in Peace – Building (New York: UNIFEM/UNDP, 2002), pp. 11–14.

  47 UN Secretary-General, A Comprehensive Strategy to Eliminate Future Sexual Exploitation and Abuse in United Nations Peacekeeping Operations (n.1), above.

  48 The UN General Assembly has, to date, taken short-term measures in its resolutions 62/63 (6 December 2007) and 63/119 (11 December 2008), as read with resolutions 64/110 (16 December 2009), 65/20 (6 December 2010), 66/93 (9 December 2011) and 67/88 (14 December 2012).

  49 Ndulo, N., “The United Nations Responses to the Sexual Abuse and Exploitation of Women and Girls by Peacekeepers during Peacekeeping Missions” (2009) 27(1) Berkeley Journal of International Law 127–161.

  50 UNGA, United Nations Comprehensive Strategy on Assistance and Support to Victims of Sexual Exploitation and Abuse by United Nations Staff and Related Personnel (UN Doc. A/RES/62/214, 21 December 2007).

  51 UNSG Report, SEA Special Measures 2010 (UN Doc. A/64/669, 18 February 2010).

  52 MoU, 2002, UN OHCHR & DPKO, para 12. See also: DPKO, Capstone Doctrine, 2008 (n.5), above, p. 81.

  53 UN, Report of the Secretary-General on the activities of the Office of Internal Oversight Services, Investigation Into Sexual Exploitation of Refugees by Aid Workers in West Africa (UN Doc. A/57/465, 11 October 2002), Note by the Secretary-General, para 3.

  54 UNSC Res., 1820 (19 June 2008) para 7; 1888 (30 September 2009) para 21; 1960 (16 December 2010) para 16; 2106 (24 June 2013).

  55 UN, Public Information Guidelines for Allegations of Misconduct Committed by Personnel of UN Peacekeeping and Other Field Missions (UN Docs DPKO/MD/03/00996, and DPKO/CPD/DPIG/2003/001, United Nations, 2003), p. 2.

  56 The expression was used by the UN Secretary-General in the 2003 Bulletin (n.22), above.

  57 See United States v. Ronghi, No. ARMY 20000635 (A. Ct. Crim. A. May 27, 2003); Jordan, M.J., “UN Tackles Sex Abuse by Troops”, Christian Science Monitor (21 June 2005).

  58 For a full analysis of the legal issues, see Burke, R., Sexual Exploitation and Abuse by UN Military Contingents: Moving Beyond the Current Status Quo and Responsibility Under International Law (Leiden: Brill/Martinus Nijhoff, 2014); Odello, M., “Tackling Criminal Acts in Peacekeeping Operations: The Accountability of Peacekeepers” (2010) 15(2) Journal of Conflict & S
ecurity Law 347–391.

  59 See, for instance, Regulation No. 2000/47 on the Status, Privileges and Immunities of KFOR and UNMIK and Their Personnel in Kosovo (UNMIK/REG/2000/47, 18 August 2000).

  60 UN Model SOFA (UN Doc A/45/594, 9 October 1990).

  61 Ladley, A., “Peacekeeper Abuse, Immunity and Impunity: The Need for Effective Criminal and Civil Accountability on International Peace Operations” (2005) 1(1), Politics and Ethics Review 81–90.

  62 Deen-Racsmány, Z., “The Amended UN Model Memorandum of Understanding: A New Incentive for States to Discipline and Prosecute Military Members of National Peacekeeping Contingents?” (2011) 16(2) Journal of Conflict & Security Law 321–355.

  63 Freedman, R., “UN Immunity or Impunity? A Human Rights Based Challenge” (2014) 25(1) The European Journal of International Law 239–254.

  64 UN, Criminal Accountability of United Nations Officials and Experts on Mission (A/63/260, 11 August 2008).

  65 Ibid., Section II.

  66 Ibid., Section III.

  67 UN, Report of the Group of Legal Experts, Ensuring the Accountability of United Nations Staff and Experts on Mission With Respect to Criminal Acts Committed in Peacekeeping Operations, Annex III Draft Convention on the Criminal Accountability of United Nations Officials and Experts on Mission (UN Doc A/60/980, 16 August 2006).

  68 Group of Legal Experts, Report (UN Doc A/60/980, 16 August 2006).

  69 UN Doc. A/C.6/70/L.17, 17 November 2015.

  70 UNSG, Secretary-General’s Statement on Appointment of High-Level Independent Panel on Peace Operations, www.un.org/sg/statements/index.asp?nid=8151.