UPDATE: On September 6, 2013 the Dutch Supreme Court upheld the judgement below from the Court of Appeals two years ago and held the Dutch state responsible for the deaths of three Bosnian Muslims whom they had handed over to the Bosnian Serbs to be massacred. This case sets an important precedent because it finds UN personnel for the first time, guilty of a crime and holds responsible their country of origin. Those who want justice for the cholera victims in Haiti would do well to study it.
Dady Chery, Editor
By Thalif Deen
A landmark ruling by a Dutch court last month holding the Netherlands government liable for the failings of its soldiers on a U.N. peacekeeping mission may be used as a precedent for criminal liability involving sexual violence, according to human rights groups.
“The decision of the Dutch court is significant for two reasons,”
said Marek Marczynski, international justice expert at Amnesty International.
First of all, it demonstrates that human rights of victims and their families to gain truth and justice prevail over the immunity of peacekeepers.
Secondly, it may open the doors for reparation claims by the victims, he said.
“This judgment gives hope to victims of human rights violations by peacekeepers and sets a new tone in the discussion about state duty to investigate and prosecute crimes under international law,”
Marczynski told IPS.
According to the ruling by the Dutch court, the government of the Netherlands is liable for the deaths of three Bosnian Muslim men killed by Serbs during the 1995 Srebrenica massacre.
The Dutch soldiers, operating under a U.N. peacekeeping umbrella, have long been accused of failing to protect Bosnian men in a designated “safe zone” during the 1992-1995 Bosnian war.
A Hollywood movie currently in theatres in the United States and titled “The Whistleblower” exposes the role of U.N. peacekeepers who were directly involved in the international sex trade in Bosnia in the late 1990s.
Kathryn Bolkovac, a U.S. national who exposed official complicity in human trafficking, and is the main character in the film, was fired from her job as a U.N. peacekeeper in Bosnia.
Yasmeen Hassan, global director at the New York-based Equality Now, told IPS the Dutch court case “is an important first in holding governments accountable for the acts of their soldiers deployed as peacekeepers”.
She said the populations that peacekeepers are entrusted with protecting are highly vulnerable since all support systems around them have crumbled.
“Women and girls among these populations are even more at risk, especially since sexual violence in conflict and in the aftermath of natural disasters is seen as a given,” she noted.
In such situations, Hassan pointed out, there is a strong danger of abuse of power, especially when it is perceived that one will not be held to account.
While over the years much attention has been paid to sexual abuse and exploitation of women and girls by U.N. peacekeepers, there has been little accountability for such crimes since home countries often do not take such charges seriously, and all the United Nations can do is discharge the accused peacekeeper, she added.
However, the possibility of women coming forward and suing these countries for abuse suffered at the hands of their peacekeepers may motivate them to have better trainings and screenings for peacekeeping staff and better procedures for reporting, investigating and taking action on such cases, she added.
Marczynski of Amnesty International told IPS that all states have an absolute duty to investigate and prosecute crimes under international law, including genocide, crimes against humanity, war crimes and torture.
“This is because they are the most serious crimes and all states have an interest in bringing their perpetrators to justice and ensuring that those crimes do not re-occur,” he said.
“There is a global consensus on this issue. However, in practice until recently this absolute obligation was not acted upon in relation to the peacekeepers,” he added.
Usually states would recall another principle of international law which grants immunity to peacekeepers.
Courts deciding on claims by the families of victims of crimes allegedly committed by peacekeepers would need to balance between the two principles of international law, he noted.
The United Nations currently has over 98,700 peacekeepers, including troops and police personnel, serving in 14 peacekeeping operations worldwide.
In recent years, the United Nations has been faced with charges of rape and sexual violence by peacekeepers in several missions overseas, including the Democratic Republic of Congo, Haiti and Darfur, Sudan.
Responding to a question earlier this month on sexual violence, the outgoing under-secretary-general for U.N. peacekeeping operations, Alain Le Roy of France, told reporters,
“A soldier behaving badly is very bad, and when it’s a peacekeeper, it’s even worse.”
He said much has been done to confront the problem since 1999, when U.N. peacekeepers in Bosnia were reported to have been involved in a sex-trafficking ring.
In 2003, he said, the United Nations issued a “zero tolerance” policy for sexual exploitation and abuse.
“Today, all peacekeepers undergo extensive training with a major focus on sexual conduct,” he added.
Currently, some of the major troop contributors come from:
Ambassador Palitha Kohona of Sri Lanka, a country that provides over 1,000 troops for U.N. peacekeeping operations in Haiti, told IPS,
“The United Nations expects troop contributing countries themselves to take disciplinary and, where necessary, legal action where U.N. rules, codes of conduct and applicable laws are breached by their troops serving on peacekeeping missions.”
In recent times, the U.N. has conducted a number of investigations into allegations against troops serving on peacekeeping missions and made these allegations known to the contributing countries concerned.
“In the case of Sri Lanka, where allegations were made against some of its personnel serving in Haiti, the government took action to withdraw them immediately and followed up with a thorough investigation,”
said Kohona, a former chief of the U.N. Treaty Section.
A number of personnel were subjected to severe punishment where the allegations were substantiated, he added.
In fact, Sri Lanka is held up as a model by the United Nations in this regard, Kohona said.
“Sri Lanka selects peacekeepers to be sent out on mission with great care,” he declared.
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