Academic journal article American University International Law Review

Criminal Prosecution of Un Peacekeepers: When Defenders of Peace Incite Further Conflict through Their Own Misconduct

Academic journal article American University International Law Review

Criminal Prosecution of Un Peacekeepers: When Defenders of Peace Incite Further Conflict through Their Own Misconduct

Article excerpt

I.introduction

"Sometimes when I'm alone with my baby, I think about killing him. He reminds me of the man who raped me."1

A Burundian soldier dragged this 14-year old girl into his barracks and raped her in Bangui, Central African Republic (CAR), leaving her pregnant with the baby boy of whom she speaks.2 The Burundian solder will likely never be prosecuted for his crime. This girl's story is shocking on its own, but, unfortunately, her situation is not unique.3 Since the United Nations (UN) peacekeeping mission in CAR began in 2014, its employees have been formally accused of sexually abusing or exploiting forty-two local civilians, the majority being underage girls.4

Furthermore, the controversy over inappropriate sexual exploits by UN peacekeepers is not limited to the CAR.5 A United Nations-appointed external panel reported, "In the absence of concrete action to address wrongdoing by the very persons sent to protect vulnerable populations, the credibility of the UN and peacekeeping operations are in jeopardy."6 The international community should demand that peacekeepers be included under the jurisdiction of the International Criminal Court (ICC) to correct the deficiency in criminal prosecutions of UN peacekeepers.

The current system to punish UN peacekeeper misconduct relies on the national governments of troop-contributing countries to domestically prosecute the troops they contributed.7 Although the United Nations can repatriate UN peacekeepers and ban them from participating in future UN missions, member states currently retain exclusive jurisdiction over peacekeepers for civil and criminal liability.8 Thus, member states retain discretion as to whether or not they prosecute their peacekeepers for violating the law of armed conflict and international humanitarian law.9

Very few countries actually prosecute their peacekeepers, but countries that pursue prosecution generally utilize domestic military tribunals.10 Incorporating UN peacekeepers into the jurisdiction of the ICC would establish one, constant body with jurisdiction over peacekeeper crimes. This solution would allow national governments to retain primary jurisdiction over the prosecution of peacekeepers, while also creating a backup mechanism to prosecute UN peacekeepers when their countries of origin fail to do so.

First, this article will discuss the development of the United Nations and its peacekeeping function, as well as the various problems that have arisen from this increasingly vital branch of the United Nations. Second, this article will examine how the United Nations handles peacekeeper misconduct and compare that with the treatment of peacekeeper misconduct by individual countries and the North Atlantic Treaty Organization (NATO). Third, this article will argue that the international community should incorporate UN peacekeepers into the jurisdiction of the ICC as the best solution to overcome the failure to hold UN peacekeepers criminally liable for their misconduct.

II.WITH GREAT POWER COMES GREAT RESPONSIBILITY: THE DEVELOPMENT OF THE UNITED NATIONS AND UN PEACEKEEPING

The United Nations was created as an international body to maintain international peace and security.11 As the role of the United Nations has evolved, so has its role in international peacekeeping. Although peacekeeping is not explicitly provided for in the UN Charter, it has become one of the main tools used by the UN Security Council.12 UN peacekeeping has become such an important tool that the United Nations has even established the UN Department of Peacekeeping to operate and manage peacekeeping missions.13

The constantly changing nature of conflict intensifies the complexities of peacekeeping.14 Moreover, the United Nations has been heavily criticized for its failure to act against peacekeeper misconduct.15 Initially, the concerns over peacekeeper misconduct stemmed from the excessive use of force,16 particularly on civilian populations during UN missions. …

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