- Title
- Accountability of United Nations peacekeepers for sexual violence
- Creator
- Maseka, Ntemesha Mwila
- Subject
- United Nations -- Peacekeeping forces
- Subject
- Sex crimes Women (International law) Women -- Crimes against Women (International law)
- Date Issued
- 2019
- Date
- 2019
- Type
- Thesis
- Type
- Masters
- Type
- LLM
- Identifier
- http://hdl.handle.net/${Handle}
- Identifier
- vital:36279
- Description
- Over the last three decades reports of sexual exploitation and abuse by UN peacekeepers while on mission have emerged with predictable regularity. What is particularly disturbing is that peacekeepers, who are viewed as representatives of the international community in the arduous environments in which they operate, commit these crimes against the local population with apparent impunity. This impunity is rooted in the perception that peacekeepers are immune from prosecution for crimes they commit while deployed – which in most cases has not been far from the truth. This dissertation considers whether a lacuna in the existing law causes the impunity and thus lack of accountability of peacekeepers who commit sexual violence. The study considers this question from three main angles: the legal status of peacekeepers, the lex specialis prohibition of sexual violence and the domestic application of the law using South Africa as an example. The determination of the legal status of peacekeepers is the first port of call to establish the applicable framework when crimes are committed and the source of their immunity. To achieve this, a framework of UN peacekeeping operations is outlined which considers the origin, constitutional basis and legal principles governing such operations culminating in a definition of peacekeeping. The study relies on the definition of peacekeeping advanced by the Capstone Doctrine which besides sitting at the top of the doctrinal framework governing UN operations, identifies three categories of peacekeepers - military, police and civilian personnel. This distinction is important because each category is subject to different rules. The study concentrates only on the military personnel who form the largest contingent of peacekeepers, who are the most likely offenders and who are immune from host state jurisdiction. It is submitted that while peacekeepers’ immunity is based on the status-of-forces agreement concluded between the UN and a troop-contributing country, the doctrine of sovereign immunity confirms that one State cannot exercise jurisdiction over another State’s armed forces. This does not mean such forces exist in a legal vacuum, but rather the troop-contributing country is obliged to exercise criminal and disciplinary jurisdiction over them. Due to the operational environment of UN peacekeeping operations, IHL is identified as the lex specialis. A synopsis of this densely codified body of law reveals sexual violence is prohibited both expressly and implicitly in treaty and customary law. The study contends with the applicability of IHL to UN peacekeeping operations, drawing the conclusion that while it can be applied, the obligation for enforcement ultimately lies with individual States. South Africa’s legislative framework is examined, specifically the Implementation of the Geneva Conventions Act to determine whether the State complies with its IHL obligations which includes the exercise of criminal jurisdiction over peacekeepers deployed on a UN mission. The study concludes that while there is a complex relationship between international and national law applicable to peacekeepers when they commit a crime, the law – at least in the South African case - is not deficient. Based on the analysis, recommendations are proposed to ensure the accountability of peacekeepers who commit sexual violence.
- Format
- xiii, 162 leaves
- Format
- Publisher
- Nelson Mandela University
- Publisher
- Faculty of Law
- Language
- English
- Rights
- Nelson Mandela University
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NMU Department of Criminal and Procedural Law
| Thumbnail | File | Description | Size | Format | |||
|---|---|---|---|---|---|---|---|
| View Details Download | SOURCE1 | NTEMESHA MWILA MASEKA.pdf | 1 MB | Adobe Acrobat PDF | View Details Download |