State Responsibility for Sexual Exploitation and Abuse as Human Rights Violations by Peacekeepers

Abstract

Since 2005, the United Nations has been undertaking investigations into allegations of sexual exploitation and abuse by peacekeeping personnel, and establishing new rules and regulations to help prevent this misconduct. However, the UN is not capable of conducting criminal prosecution to ensure accountability for criminal conduct by peacekeepers; states are. States have a responsibility under international law to criminalise violence against women such as sexual exploitation and abuse. Failure to do so is a violation of obligations to prevent, punish, and investigate acts of violence, and to provide remedy for violence perpetrated against women. At the level of customary law, states have an obligation to exercise due diligence to prevent harm committed by both state and private actors. There are several international and regional instruments, such as CEDAW, which obligate states to criminalise violence against women, whether directly or more generally. This obligation raises the question of the extraterritorial application of human rights to invoke state responsibility and ensure the protection of such rights during peacekeeping missions. The issue of the extraterritorial application of human rights is one of controversy, particularly as human rights engage state responsibility. The existence of extraterritorial application of human rights has been discussed in regional and international case law, the findings of which can be applied to peacekeeping operations. An examination of the case law such as Behrami and Saramati (European Court of Human Rights) demonstrates a lack of willingness to attribute state responsibility for the actions of peacekeepers. However, this paper argues that the specific circumstances of sexual exploitation and abuse (and certain other criminal misconduct), when applied through the interpretation of the case law, can be attributable to sending states, thus enabling states to be held responsible for failing to hold perpetrators criminally accountable for sexual exploitation and abuse.