Comment: Putting victims first: Assessing hybrid tribunals and on-site court-martial as the judicial response to sexual exploitation and abuse committed by UN peacekeeping forces
* Published as part of the 2023 CoI conference 'Towards just institutional approaches to conflict prevention and resolution'. *
Sexual exploitation and abuse (SEA) within UN peacekeeping operations continue to shock the international community. By assessing two proposed judicial responses, hybrid tribunals and on-site court-martial, through the lens of a victim-centred approach, this blog aims to determine which institution offers a better judicial solution to hold accountable UN peacekeeping forces who committed SEA.
Introduction
Once again, the world has witnessed distressing scandals involving sexual exploitation and abuse (SEA) within United Nations (UN) peacekeeping operations. On 9 June 2023, an entire unit of peacekeepers was repatriated by the UN due to SEA allegations. For years, these incidents have shocked the international community, as the UN peacekeepers have been found engaging in demanding sexual favours in return for food or employment, sexual assault, rape, and paedophilia. Such reprehensible acts and criminal conduct have been documented by UN’s official documents, NGO reports, and news articles.
In response to these scandals, the UN has been determined to find a solution to hold the primary culprits, the UN peacekeeping forces (UNPF), accountable. However, a major challenge arises due to the immunity granted to UNPF under the Status of Forces Agreement signed between the UN and troop-sending states (sending States). To address this issue, the UN proposed the establishment of hybrid tribunals (HTs) and on-site court-martial (OSCM) to judge SEA cases involving UNPF.
What do these institutions actually entail? According to the UN’s proposal, HTs would be established in the host States, with the participation of the sending States. This approach resembles the HTs that have been created in Cambodia, Kosovo, Sierra Leone, and others. On the other hand, the UN has not provided a clear definition of OSCM, but based on existing practice, it appears to be a military court operating under the jurisdiction of the sending States, holding trials in host States, and applying military law of sending States
Now, when faced with these two options, a critical question naturally emerges: which institution is better?
Victim-centred approach (VCA) as a benchmark for assessment
In order to determine what constitutes a “good” solution, it is necessary to establish a normative standard for evaluation. In this blog, I will utilize the VCA as the yardstick for assessing both judicial institutions. This choice is driven by the extensive implementation of VCA throughout the UN system as a guideline addressing SEA, including in the context of peacekeeping operations. Illustratively, VCA is reflected in resolutions of the UN General Assembly and Security Council, reports of UN Secretary-General, and policy papers of UN agencies. Moreover, states and other major international actors have advocated for the use of VCA in addressing SEA. Therefore, in theory, both HTs and OSCM, as responses to SEA committed by UNPF, should align with the principles of the VCA.
Despite the widespread recognition of the VCA in international documents, there has been limited scholarly attention to adopting this approach for evaluating courts and tribunals. This blog represents an initial step towards bridging this normative gap. It is important to note that this does not negate any other potential theories. However, the application of the VCA can indeed clarify what we should be concerned about when choosing the institution to adjudicate cases of SEA committed by UNPF.
Unpacking VCA
But what does VCA exactly imply? As outlined earlier, the term VCA, along with similar terminologies and expressions, finds its place in numerous international instruments. Drawing from these sources, I will distil VCA into four key principles that encapsulate its essence.
1. Well-being: VCA prioritizes the well-being of victims, emphasizing the need for their physical protection (e.g., safeguarding against retaliation) and emotional protection (e.g., preventing re-traumatization).
2. Support: VCA advocates guaranteeing a holistic provision of support required by victims, including legal assistance. Notably, the effectiveness of the support rest on the opinions of victims, not the provider.
3. Control: VCA shifts the focus from States to victims and gives back control to victims to the extent feasible. The term “feasible” means that authorities could take action against the will of victims in certain circumstances, and the responses to SEA will not be solely driven by the agenda of victims.
4. Information: VCA underscores victims’ right to information from two angles. On the one hand, when gathering information from victims, it is necessary to safeguard victims’ privacy. On the other hand, victims shall be fully informed in a timely manner, especially the information regarding the due process rights of the alleged perpetrators.
Comparing HTs and OSCM: a quick assessment through the lens of VCA
Let’s now dive into the main part: a brief comparison between HTs and OSCM, exploring which institution best aligns with the four principles of VCA.
1. Well-being principle
HTs hold the potential to promote the rule of law in host States through various means, such as introducing international judges and staff, training local jurists and lawyers, and complementing domestic legislation by referring to international law. Scholars have demonstrated the rule of law’s capacity to enhance long-term well-being by facilitating access to health services, improving life expectancy, raising income, and promoting education. In contrast, OSCM lacks this advantage, as it may not involve collaboration between local and international judges nor does it possess a capacity-building function like HTs.
However, in practice, HTs often struggle to fully realize their potential in enhancing the local rule of law. Ethical conflicts and limited resources are among the complex reasons that hinder its realization. Moreover, the UN has acknowledged that the rule of law brought by international experts is often not appropriate to the local context.
Moreover, the time-consuming nature of HTs can prolong the suffering of victims and inflict psychological harm. Conversely, records indicate that many investigations conducted through OSCM have been completed within a relatively short period of one to three months. When we consider that it took a decade to reach a verdict against Charles Taylor before the Special Court for Sierra Leone, a timeframe of three months certainly appears more victim-friendly, sparing individuals the unnecessary emotional pain caused by protracted delays in the judicial process.
2. Support principle
UN documents and news reports have repeatedly confirmed the implementation of OSCM in supporting SEA victims to hold UNPF accountable. On the contrary, the utilization of HTs to support victims in peacekeeping operations remains confined to theoretical discussions, lacking public support from any states at present.
Furthermore, HTs are resource-intensive, which makes their practical implementation challenging. The availability of funding greatly impacts the extent of support that HTs can offer to victims. In contrast, OSCM is mobile and convened merely for a specific instance, thus requiring less financial input. This potentially enables OSCM to provide practical assistance, including feasible access to legal support for victims.
3. Control principle
It is evident that HTs and OSCM, as judicial mechanisms, hold the reins of prosecution, rather than the victims. However, HTs offer a glimmer of potential for returning some control to victims. In Case 001 of the Extraordinary Chambers in the Courts of Cambodia (ECCC), victims were allowed to participate as civil parties directly against the accused rather than merely as witnesses and complainants. This could be regarded as progress in granting victims more control in the legal proceedings.
Nevertheless, commentators notice that ECCC ultimately reduced victims’ control to the same level as that of a witness, limiting their participation and right to speak in the procedures, due to concerns about procedural efficiency. Besides, victims have no control over the decision to prosecute, because HT are also sensitive to political pressure, as exemplified by the failure to prosecute Wiranto in East Timor’s HTs.
As for OSCM, there is no empirical evidence suggesting a similar flexibility in OSCM to grant control to victims. The establishment of OSCM also relies heavily on the willingness of sending states. As such, OSCM is more aligned with the conventional model of States control.
4. Information principle
Both HTs and OSCM are geographically close to victims, which facilitates the transmission of information from the tribunals to victims, and allows victims and communities to see accountability processes at work depending on the language of communication.
However, the full text of OSCM’s judgments has never been made public, and transparency in OSCM is at least doubtful considering the sole control of sending States. In comparison, the documents of HTs are usually accessible to the public, and the involvement of the UN and host States in HTs contributes to a greater level of transparency in HTs’ operations.
This is not to say the transparency of HTs is totally guaranteed. HTs often struggle to effectively engage with the public due to limited resources (lack of access to newspapers, televisions, and the internet) and language barriers, which can hinder victims’ access to information.
Conclusion
Based on the VCA assessment above, OSCM outperforms HTs in protecting victims’ well-being and ensuring practical support to victims. Although HTs show unique potential in returning some control to victims and promoting greater transparency, their realization remains uncertain, thus not constituting a definite advantage over OSCM. Therefore, from VCA perspectives, OSCM emerges as a better dispute settlement solution than HTs for judging SEA committed by UNPF. However, efforts should be made to enhance transparency and victims’ control within OSCM.
Fan Huang is an LLM candidate in Public International Law from Leiden University and has gained practical experience in dispute resolution through internships at the United Nations Commission on International Trade Law (UNCITRAL), international law firms and an arbitration institution. He will speak at the 2023 CoI Conference: 'Towards just institutional approaches to conflict prevention and resolution'.
