You may recall news several months ago about a cell phone video allegedly depicting Uruguayan peacekeepers in Haiti sexually abusing a teenage Haitian boy. The story made headlines in North America, Haiti and Latin America.  The Uruguayan ambassador apologized for the incident and the President of Uruguay even wrote an open letter to the people of Haiti apologizing for the alleged injustice, and promised that the offenders would face justice.

This was supposed to be an example of how the UN and governments would effectively respond to peacekeeper abuse. Alas, according to this report by ABC News, it appears that the accused soldiers have been let out of jail because investigators have not tracked down the victim to obtain his testimony.

Asked last week about the latest developments, UN spokeswoman Anayansi Lopez said the men were released from jail while investigators try to locate the 18-year-old Haitian victim and obtain his testimony — something the Uruguayans said they had been unable to do. Once that occurs, she said, the men will be brought back for trial.

“The recent release of the soldiers, pending completion of the civilian trial, will not circumvent the possibility that the soldiers be re-imprisoned, should they be found guilty and sentenced accordingly,” Lopez said.

This case exposes a flaw in the way that the international community has decided to investigate and prosecute international peacekeepers. The basic problem is that no country wants to put its own peacekeepers or soldiers under the criminal jurisdiction of a foreign country or, in the case of the UN, a foreign institution.

When the Security Council approves a mission, it relies on countries to volunteer their troops to serve on the mission. These troop contributing countries then sign a memorandum of understanding with the UN which stipulates that the peacekeepers may not be liable for domestic criminal prosecution.  These kinds of provisions are fairly standard in any status of forces agreement between two countries (and, in fact, it was the Iraqi decision not to include an immunity provision that precipitated the American withdrawal last month).

Troop contributing countries generally insist on this immunity provision because they do not want their soldiers tried in a foreign land. And, in any case, most of the places to which the UN deploys peacekeepers have sub-standard legal institutions.  So, on one hand, it makes perfect sense that immunity would be built into memorandum of understanding.

On the other hand, this contributes to an environment in which soldiers of questionable repute feel that they can get away with heinous crimes. After all, they have “immunity.”

This is a problem with no clear cut solution. Maybe one answer is creating a UN peacekeeping courts-martial system? But that would require the buy-in from every troop contributing country. (And it would be hard to imagine, say, the US military permitting one of its soldiers to stand trial in a UN court.)  Or maybe countries could give the Secretary General the authority to waive a peacekeeper’s immunity so he can stand trial locally (the way he can with civilian diplomats). But again, I have a hard time believing that any country would want to give the Secretary General that kind of authority.

So what we are left with are less than perfect options. The UN has a “zero tolerance policy“, part of which includes a provision in the “memorandum of understanding” in which the troop contributor pledges to use its national legal system to investigate allegations of wrongdoing by peacekeepers.  That is basically it. The UN can send the peacekeeper home, but only national authorities can criminally prosecute the former peacekeeper.

What is surprising about this Uruguay case is that it shows how difficult it is to make this system work in practice. The first hurdle is getting the countries to actually follow through on this commitment. Uruguay seemed very determined to follow through; the head of state personally signed a public letter to the Haitian people promising that justice will be served. So the system seemed to be working as it should.  But now, it seems the system is running into a second big hurdle: sexual abuse cases are difficult to prosecute anywhere and in these kinds of cases you have prosecutors in one country looking for evidence and victims of a crime committed in a far away land. If a victim of sexual assault cannot (or does not) want to be found or testify, then it may not be possible to put together an effective criminal prosecution.

This obviously offers little comfort to victims of sexual assault.  But this “justice gap” seems to be a trade off the international community is willing to accept as a price to send peacekeepers to dangerous corners of the world.  And it is always worth mentioning that the vast majority of peacekeepers are perfectly law abiding people who are willing to put their lives on the line in service of helping to maintain international peace and security.

Discussion

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