«Fifty-ninth session Agenda item 77 Comprehensive review of the whole question of peacekeeping operations in all their aspects Letter dated 24 March ...»
30. The preliminary investigation is also used for United Nations staff. The administrative instruction entitled “Revised disciplinary measures and procedures” provides that if a preliminary investigation appears to indicate that a report of misconduct is well founded, the matter is sent to the Assistant Secretary-General for Human Resources Management, who decides whether to charge the staff member with misconduct. It is thus clear that the quality of the first investigation is also crucial for staff disciplinary cases.
Professional investigative mechanism
31. There seems to be no reason why, at the mission level, there need to be two investigations to establish facts. What is crucial is an investigation conducted by professionals who, in appropriate cases, particularly where there is an indication of criminal activity, have access to modern scientific methods of identification, such as fingerprinting, fibre analysis and blood and DNA testing. Access to such techniques is cost-effective and can help eliminate false accusations as well as establish culpability. The head of mission can draw needed management conclusions from a professional report, and it is likely that it will be possible to assess evidence gathered professionally in confidence and that such evidence will be more useful at the next stage in the process, be it disciplinary, court martial or criminal. Of course in straightforward cases, such as those in which culpability is admitted or proven by a number of independent witnesses, investigations could continue to be done by members of the mission concerned.
32. It is thus recommended that, for cases of sexual exploitation and abuse, and indeed for other cases of misconduct of a similar grave nature or where complex investigative techniques are needed, the Secretary-General establish a permanent professional investigative capacity sharing some of the administrative machinery of the Department of Peacekeeping Operations yet remaining totally independent of the command structures of the Department and the missions. Such a Department of Peacekeeping Operations investigation would replace the preliminary investigation and the board of inquiry. The investigative mechanism, although independent of missions, must have the authority, as a matter of priority, to discharge its mandate in the mission area. In other words, the mission must cooperate fully with investigators and extend its facilities to them to enable the investigation to operate effectively.
The mechanism could be regionally based, as it might be neither cost-effective nor feasible to have such a capacity in every mission. To ensure the independence of such an investigative mechanism from those it investigates, it should report to the Secretary-General or the Deputy Secretary-General with a copy of each report sent to the Under-Secretary-General for Peacekeeping Operations and to the head of mission for their information. In particular, it must have access to professionals who have experience in investigating sex crimes, especially those involving children. It must have access to experts who are able to provide advice on the evidentiary requirements and standards of proof needed for the next stage in the process, whether the persons being investigated are staff members, civilian police, military
observers or members of military contingents. Where positive identification of those accused cannot be achieved through traditional methods, the mechanism must have access to modern techniques of forensic identification. This reform would help to ensure that those unjustly accused would be able to clear their names and that those justly accused would be found culpable. It would also ensure that complex and sensitive investigations into allegations of sexual exploitation and abuse were not undertaken by “enthusiastic amateurs”. The Department of Peacekeeping Operations investigation would be used for all categories of personnel.
33. It is crucial that the troop-contributing country participate in investigations of allegations that a member of its contingent has engaged in sexual exploitation and abuse or similarly grave offences. Its participation would ensure that the troopcontributing country would have access to all documents and evidence, which would in turn ensure that the process was transparent for the troop-contributing country concerned. It would instil confidence that allegations were properly evaluated. Most importantly, the participation of the troop-contributing country at an expert level would help to ensure that evidence was gathered in conformity with the laws of the troop-contributing country so that it could be subsequently used by the country to take action against the contingent member. Thus, it is crucial that troop-contributing countries participate through a military lawyer, preferably a military prosecutor, who has expert knowledge of the requirements of that State’s military law and understands what material will be required for subsequent action and who will ensure that the investigation assists rather than hinders subsequent action under national law. It is thus suggested that the Special Committee recommend to the General Assembly that the model memorandum of understanding contain a provision requiring each troop-contributing country to nominate a military prosecutor who is available to travel on short notice at mission expense to participate in any Department of Peacekeeping Operations investigation into allegations of sexual exploitation and abuse or similar grave offences against a member of its contingent.
34. It is also recommended that the model memorandum of understanding require a troop-contributing country to share with the Department of Peacekeeping Operations investigation any information that the contingent has gathered as a result of its own investigation into an incident. Cooperation between a contingent and the mission is essential if the problem of sexual exploitation and abuse is to be eliminated.
Possible use of on-site courts martial
35. An on-site court martial for serious offences that are criminal in nature would afford immediate access to witnesses and evidence in the mission area. An on-site court martial would demonstrate to the local community that there is no impunity for acts of sexual exploitation and abuse by members of military contingents. Of course, the holding of a court martial in a host State would require its permission, but such permission is implicit in paragraph 47 (b) of the model status-of-forces agreement, which provides that military members of the military component of a United Nations peacekeeping operation shall be subject to the exclusive jurisdiction of their participating States in respect of any criminal offences be committed by them in the host State. Therefore, all troop-contributing countries should hold on-site courts martial. Those countries which remain committed to participating in
peacekeeping operations but whose legislation does not permit on-site courts martial should consider reform of the relevant legislation.5 Summary of recommendations
36. It is recommended that the General Assembly authorize the establishment of a professional investigative capacity to investigate allegations of sexual exploitation and abuse and misconduct of a similar grave nature against all categories of peacekeeping personnel. The investigative body must be staffed by experts who have had experience in sex crime investigations, particularly those involving children. It must have access to modern forensic methods of identification. Furthermore, it must be independent of the missions and could be regionally based. It is recommended that the troop-contributing country participate as a member in any case that concerns its troops and that it participate through an expert in military law, preferably a military prosecutor, designated in the memorandum of understanding, who would be flown to the investigation site by the United Nations to ensure that evidence was gathered in such a manner that it could be used in a subsequent court martial or in national judicial proceedings. It is recommended that troop-contributing countries conduct on-site courts martial and that countries whose legislation does not permit them consider reforming their legislation.
IV. Organizational, managerial and command accountability The problem
37. There is a justified perception that neither the Organization nor its civilian managers and military commanders are held to account to make good-faith efforts to address the problem of sexual exploitation and abuse in peacekeeping operations.
This must change.
38. Ultimately, the United Nations is accountable for its peacekeeping operations.
It is thus incumbent on the Organization to attempt to minimize instances of sexual exploitation and abuse in its peacekeeping missions.
39. First, managers and commanders must, by their example and by raising awareness, ensure that all personnel under their supervision are aware that sexual exploitation and abuse, as defined in the 2003 Secretary-General’s bulletin, constitute unacceptable abuse of the local population and will not be tolerated by the Organization. Setting an example and raising awareness are not enough, however.
The drawbacks of not being able to conduct on-site courts martial were alluded to by the Secretary-General almost 50 years ago in paragraph 137 of his report entitled “United Nations Emergency Force: Summary study of the experience derived from the establishment and operation of the Force” (A/3943 of 9 October 1958).
Victims and their spokespersons tend to be female and the presence of female interlocutors, especially in senior positions, would facilitate efforts to encourage the reporting of abuse, which is the first step in eliminating it. Finally, the presence of more women in a mission, especially at senior levels, will help to promote an environment that discourages sexual exploitation and abuse, particularly of the local population.
44. United Nations standards of conduct prohibit sexual activity with prostitutes, which is the most accessible form of sexual activity for contingent members in particular.7 At the same time, condoms are either provided to soldiers or are made available to them as part of the programme between the Department of Peacekeeping Operations and the Joint United Nations Programme on HIV/AIDS.
This may create an impression, at least in the minds of some peacekeeping personnel, of an official “zero tolerance” policy coexisting with an unofficial policy to the contrary. In order to avoid sending a confusing message, I suggest that the HIV/AIDS awareness training make clear the prohibitions defined in the 2003 bulletin and emphasize that any transgressions will be severely punished. It could be explained during the training that condoms were being distributed as a life-saving measure to prevent the spread of HIV/AIDS.
45. Managers must realize that non-specific allegations of sexual exploitation and abuse cannot be ignored. Such allegations may be an early warning of real abuse.
Such allegations must be recorded and examined. While they may not justify action against a particular individual, such allegations may be an indication of a problem that requires a managerial response, for example, repeat training for specific groups or the issuance of a warning against violations of the 2003 bulletin.
46. Finally, troop-contributing countries should be encouraged to send established units to peacekeeping missions rather than assembling units from different existing national units. The discipline and cohesion of established units is better than in assembled units and the commander and the unit’s officers are more likely to know the strengths and weakness of their personnel and, therefore, be better able to maintain tight discipline.