Transnational Crime, Crime Control and Security

Transcription

1 Transnational Crime, Crime Control and Security Series Editors James Sheptycki York University ON, Canada Anastassia Tsoukala University of Paris XI France This valuable book offers a bracing perspective on the vexed issue of accountability of UN peacekeepers for sexual exportation and abuse. It pinpoints the weaknesses of the current system and argues persuasively for transnational regulation, with women s human rights at its centre. Professor Hilary Charlesworth, Melbourne Laureate Professor at Melbourne Law School, University of Melbourne, and Distinguished Professor at the Australian National University, Australia Combining deft analysis of international and domestic jurisprudence with a sound understanding of peacekeeping practices in the field and the challenges confronting the global community, this important book sheds new light on the problem of responding to sexual exploitation and abuse by UN peacekeepers. It offers careful and balanced analysis as well as a set of practical steps that could be taken to prevent abuse by holding perpetrators accountable. This book will be welcomed and must be read by both general readers and those that have grappled thus far unsuccessfully with this issue for years. Professor Alex Bellamy, Director of the Asia Pacific Centre for the Responsibility to Protect and Professor of Peace and Conflict Studies at The University of Queensland, Australia; Non-Resident Senior Adviser at the International Peace Institute, New York, USA, and Fellow of the Academy of Social Sciences in Australia

2 Transnational crime and security are key modalities of governance in a globalizing world. World-wide, there is a tendency to treat every imaginable source of harm as a potential source of insecurity, and therefore as a crime. The catastrophic imagination is fueled by the precautionary logics of a world system troubled by systemic risk. As these logics become pervasive, security measures are invoked in an effort to control the imagined sources of harm, and the consequences are not always clear-cut. Further, the terminology of transnational crime, threat, risk and (in)security (and the phenomena to which they refer) is substantively deterritorialized, raising further theoretical and practical difficulties. Research and scholarship concerning these issues touches upon crucial features of the world system. This series offers wide inter-disciplinary scope for scholarship exploring these central aspects of global governance and governance globally. More information about this series at

3 Melanie O Brien Criminalising Peacekeepers Modernising National Approaches to Sexual Exploitation and Abuse

4 Melanie O Brien University of Queensland St Lucia, QLD Australia Transnational Crime, Crime Control and Security ISBN ISBN (ebook) DOI / Library of Congress Control Number: The Editor(s) (if applicable) and The Author(s) 2017 This work is subject to copyright. All rights are solely and exclusively licensed by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, express or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. Cover credit: MARKA/Alamy Stock Photo Printed on acid-free paper This Palgrave Macmillan imprint is published by Springer Nature The registered company is Springer International Publishing AG The registered company address is: Gewerbestrasse 11, 6330 Cham, Switzerland

5 Acknowledgements The principal research for this book was funded by a Ph.D. scholarship from the School of Law, University of Nottingham; Ph.D. tuition scholarship from the International Office, University of Nottingham; and a University of Nottingham Universitas 21 Travel Prize for research at the University of Melbourne. Subsequent research was carried out under a University of Queensland Post-doctoral Fellowship. The author is grateful to Prof. Simon Bronitt for feedback, advice and expertise. Thank you also to Prof. David Schlueter for his assistance and expertise and Miss Zoe Brereton and Miss Ameera Ismail for research assistance. v

6 Contents 1 UN Peacekeepers, the Military and Sexual Exploitation 1 2 National Criminal Jurisdiction Over Australian and US Military Personnel 59 3 General Criminal Provisions of US and Australian Military Disciplinary Law 77 4 Rape 87 5 Prostitution-Related Conduct Sexual Exploitation Human Trafficking and Sexual Slavery HIV/AIDS-Related Offences 135 vii

7 viii Contents 9 Transnational Regulation of Peacekeeper Sexual Exploitation as Part of a Rights-Based Approach 149 Appendix 1: History of Article 120 of the US Uniform Code of Military Justice in the Twenty-First Century: Pre-2006 Version (Effective 1992) 159 Appendix 2: History of Article 120 of the US Uniform Code of Military Justice in the Twenty-First Century: 2006 Version (Effective October 2007) 161 Appendix 3: History of Article 120 of the US Uniform Code of Military Justice in the Twenty-First Century: 2011 Version (Effective June 2012) 173 Appendix 4: History of Article 120 of the US Uniform Code of Military Justice in the Twenty-First Century: 2016 Version (Effective at unknown date before 1 January 2019) 183 Case List 193 Index 199

8 Acronyms ACT Australian Capital Territory ADF Australian Defence Force ADFDAT Australian Defence Force Discipline Appeal Tribunal AR United States Army Regulations CDU Conduct and Discipline Unit CEDAW Convention on the Elimination of Discrimination Against Women CMA United States Court of Military Appeals Cth Commonwealth (of Australia) DFDA Defence Force Discipline Act (Cth) 1982 DFS Department of Field Support DOD United States Department of Defence DPKO Department of Peacekeeping Operations DRC Democratic Republic of Congo ECOMOG Economic Community of West African States Monitoring Group ECOWAS Economic Community of West African States ECtHR European Court of Human Rights EU European Union FCAFC Federal Court of Australia-Full Court HCA High Court of Australia ix

9 x Acronyms HIV/AIDS ICJ ICTR ICTY IPTF KFOR MCM MEJA MINUSCA MINUSTAH MONUSCO NATO NGO OIOS PKO RCM SA SEA SG SRSG STI UCMJ UN UNAIDS UNAMIC UNAMSIL UNDP UNHCR Human Immunodeficiency Virus/Acquired Immunodeficiency Syndrome International Court of Justice International Criminal Tribunal for Rwanda International Criminal Tribunal for the former Yugoslavia International Police Task Force NATO Kosovo Force United States Manual for Courts-Martial United States Military Extraterritorial Jurisdiction Act United Nations Multidimensional Integrated Stabilization Mission in the Central African Republic/la Mission intégrée multidimensionnelle de stabilisation des Nations Unies en République centrafricaine United Nations Stabilisation Mission in Haiti United Nations Organization Stabilization Mission in the Democratic Republic of the Congo/Mission de l ONU pour la stabilisation en République Démocratique du Congo North Atlantic Treaty Organization Non-governmental Organisation United Nations Office of Internal Oversight Services Peacekeeping Operation Rules for Court-Martial (in US Manual for Courts-Martial) South Australia Sexual Exploitation and Abuse Secretary-General (of the United Nations) Special Representative of the Secretary-General Sexually Transmitted Infection United States Uniform Code of Military Justice United Nations The Joint United Nations Programme on HIV/AIDS United Nations Advance Mission in Cambodia United Nations Mission in Sierra Leone United Nations Development Programme United Nations High Commissioner for Refugees

10 Acronyms xi UNICEF UNMEE UNMIBH UNMIK UNMIL UNMISET UNOCI UNOHCHR/HCHR UNOSOM UNPROFOR UNTAC US USAF Vic United Nations Children s Fund United Nations Mission in Ethiopia and Eritrea United Nations Mission in Bosnia and Herzegovina United Nations Mission in Kosovo United Nations Mission in Liberia United Nations Mission of Support in East Timor United Nations Mission in Côte d Ivoire United Nations Office of the High Commissioner for Human Rights United Nations Operation in Somalia United Nations Protection Force United Nations Transitional Authority in Cambodia United States United States Armed Forces Victoria, Australia