The United Nations’ response to allegations of sexual exploitation and abuse by peacekeepers appears to have benefitted from the energy and commitment shown by the present UN Secretary-General António Guterres. However, there is still no shortage of work to do in the face of such egregious abuses of human rights and the range of dire consequences for victims. The travails of other institutions also point to a new dimension of this ongoing challenge: the possibility that, in addition to any individual’s misdeeds, a form of child abuse may arise, in effect, from an institutional response to alleged wrong-doing that does not do enough.
An uneasy calm seems to have fallen over the question of peacekeepers behaving badly. Perhaps the energy and commitment to addressing this issue shown by Secretary-General António Guterres has actually made an impact, or perhaps global attention being rivetted on COVID-19, and all of the pandemic’s consequences, has provided a lull in the storm. Perhaps it is just because there are significantly fewer peacekeepers in the field than at the high-water mark of United Nations (UN) peacekeeping deployments around 2015.
Whatever the case may be, the issue of sexual exploitation and abuse (SEA) perpetrated by peacekeepers has not dropped from the headlines entirely, and even Guterres is not suggesting there is cause for celebration – rather, he continues apace to address this persistent stain on the reputation and credibility of the UN (for example, in a recent call to punish perpetrators).
Undoubtedly, the contemporary response by the UN is a vast improvement over when, in 1993, UN Special Representative to Cambodia, Yasushi Akashi, was faced with accusations of peacekeepers sexually abusing the local population, and responded that ‘boys will be boys‘. However, given the UN’s immunities as an international organisation, much of the UN’s response to peacekeeper wrongdoing centres on the actions of individuals and deflecting the necessary response to others: what the individual is alleged to have done, whether that is punishable by law, and, if so, punishable in what legal context and by which particular actor.
For SEA allegations, this is reflected in related UN reporting mechanisms, for example, which largely rely on action by States to hold individuals accountable, and on a much wider front in related scholarship.
This has been a live problem for the UN for quite some time, but the response has not been swift. The first substantive report was in 2005 and, despite the UN’s ‘zero tolerance‘ policy, and much that has been done towards preventing misconduct by UN peacekeepers, it is not clear how effective such measures have been. Even handling such matters has proven to be fraught, and remains so in various ways, not least for individuals wishing to report instances of SEA to the UN.
In that light, the present reporting regime, and its basis in Security Council Resolution 2272, do represent progress by more openly addressing SEA by peacekeepers and reporting publicly on how alleged incidents are being addressed. However, it is unclear whether the problem is on the way to being resolved, or even that the UN has done what it can within the powers that it has (which might also be said about other forms of misconduct arising under the aegis of UN activities, but that is another debate).
The specific question
As is now being discovered – the hard way – by various organisations around the world, there are consequences if the institutional response to alleged child abuse is itself found to be lacking. That is, other institutions have now been seen to perpetrate institutional abuse by their inadequate response to SEA in relation to children. This is seen in relation to, for example, various churches – in Australia, the USA , Canada, and so on, or their high office holders wherever they may be – or in emerging complaints and scandals, dogging the footsteps of even seemingly-venerable organisations to the point of insolvency. The travails of church organisations are particularly interesting, as finding them culpable, or laying charges against their high office holders, would have been unthinkable not so many years ago.
So, quite separately to the challenges that persist in testing the culpability of an individual alleged wrong-doer, the question here is – what does it mean if the UN is seen as failing to act, or to act sufficiently, in the face of multiple or ongoing instances of SEA of children?
What is institutional child abuse?
There is no generally accepted definition for the term ‘institutional abuse’, but in scholarly writings the phrase is used consistently to mean abuse that occurred in an institutional setting – institutional being taken broadly as non-familial, settings of the kind central to the recent Royal Commission in Australia. Similarly, various countries have found that the issue is not confined to one place, or one organisation, or even one type of organisation (religious, for example).
Part of the signature of such acts is abuse of institutional power, which itself comes in various forms, but commonly arises if ‘adults tend to place the interest of institutions … above the protection of children‘. This includes failing to act – or to act sufficiently – in the face of relevant reports, or, indeed, failing to provide a reasonable mechanism to elicit reports in the first place.
Public inquiries have also contributed to debunking the idea that wrong-doers of this kind are easily recognisable as different from the rest of the community. Such perpetrators have commonly been portrayed as some kind of ‘monster’, meaning their presence in a situation would be self-evident; if there are no ‘monsters’ to be seen, inaction is justifiable. Open inquiries with a wide remit have shown the profound fallacy of such logic, and nothing suggests that this learning should be disregarded in relation to peacekeepers (or any other representative of the UN for that matter).
Crucially, such public inquiries have highlighted the regrettable reality that, not infrequently, a ‘failure to act’ is a knowing failure. Failures to act range from ‘mere’ ineptitude in institutional leadership, to denial and/or obfuscation to protect the name and reputation of the organisation, to active and wilful cover-ups, or worse.
Self-evidently, the Purposes of the UN, given by the UN Charter, do not call on the UN to care for children in the way that, for example, the operator of an orphanage or other youth
services organisation does. It is abundantly clear, however, that the UN implicitly has a non-trivial element of responsibility for avoiding harm to children with whom its representatives are in contact – and this includes peacekeepers (noting that harms are not limited to those implied by a strict understanding of SEA).
So, regardless of what individual States do in their own legal realms, the question remains: has the UN done enough on its own account to respond to SEA of children?
Whose aegis and whose initiative?
Without being unduly exacting, the question might be rephrased: has the UN used the powers that it has to solve the problems within its grasp, and so better protect children?
How one might answer then depends, to a degree, on one’s conception of the relationship between the UN and an individual peacekeeper.
Peacekeeping operations are provided with their mandate by a decision of the UN Security Council. In effect, this legal basis for authorising peacekeeping operations means that they function as a subsidiary organ of the Security Council. This does not, however, give the UN direct legal control of troops deployed in peacekeeping under the UN’s aegis. In the context of wider questions about the effectiveness of peacekeeping operations, scholarship on peacekeeper misconduct has highlighted a wide range of issues created by this always complex, and often convoluted, chain of command.
Leaving this ongoing scholarly and practical debate to one side, a new dimension of legal concern is emerging. Put bluntly: in the future the UN may be maligned for an insufficient or inadequate institutional response to SEA of children, constituting a further wrong of institutional abuse. In line with current debate in States contending with such cases (including Australia), this could arise almost regardless of the questions of legal culpability of individual peacekeepers.
In the face of that, rather than confining itself to lamenting the lack of legal power to prosecute wrong-doers directly, there may still be actions that the UN could take to improve protection of children from SEA perpetrated by peacekeepers. Put more bluntly, the shift in understanding of child abuse, to recognise institutional child abuse, suggests hand-wringing
should now give way to creative problem-solving, of the kind already seen in the Security Council’s creation of other means and mechanisms – international criminal tribunals, committees to address terrorists and their activities, indeed peacekeeping itself (it having emerged as something of a substitute for the capacity intended to exist under Article 43 of the Charter).
Thus, it may be that development of the concept of institutional abuse of children strengthens the case for a direct mechanism for responding to such allegations against UN peacekeepers, and new lines of discussion could open up accordingly. Should, for example, the UN conceive of itself as offended by such actions sufficient to instigate new ‘review of conduct’ mechanisms? Could such mechanisms be given competence to assess the conduct of individuals, even if not to address such conduct directly? That is, could they be designed to address the matter without undermining the legal recourse against individuals that (in very broad terms) remains the right and province of their State?
These are questions for another time, but scholarship on the concept of institutional abuse of children suggests strongly that, in the interests of better protecting children as well as protecting the good name of the UN, effort invested in exploring these questions will not be wasted.
Dr Carolyn M Evans CSC teaches and researches at the Faculty of Law & Justice at UNSW Sydney, specialising in international law in relation to international organisations. She recently published her first monograph Towards a more accountable United Nations Security Council (Brill, 2021).