16 Jan 2007: ISS Today: Sexual Exploitation and Sexual Abuse: The Need for Special Measures Within the Private Security / Military Industry

16 January 2007: Sexual Exploitation and Sexual Abuse: The Need for Special Measures Within the Private Security / Military Industry

The need for special measures to protect women and children against sexual exploitation and sexual abuse by forces employed by private security/military companies (PSCs/PMCs) during peacekeeping missions cannot be overemphasised, given the tendency of certain members of such missions to engage in these illegal activities. It is for this reason that the former United Nations Secretary-General issued a Bulletin, titled Special Measures for the Protection from Sexual Exploitation and Sexual Abuse, which entered into force on 15 October 2003. This Bulletin serves as a point of reference in this brief piece, which focusses on the need for special measures within the private security/military industry to protect women and children from sexual exploitation and abuse by its forces.

In recent years, PSCs and PMCs have increased in number, scope of activity and visibility. The oversupply of military skilled labour, resulting from the end of the Cold War coupled with the increase of conflict situations, especially in the Middle East and Africa, are some of the main reasons for the unprecedented growth of the private security industry. In addition, the weakness or failure of the United Nations in peacekeeping efforts has also resulted in an increase in demand for the use of PSCs and PMCs. One of the most noteworthy features of PSCs and PMCs is that their specific operations have generally escaped regulation under international law, international humanitarian law and international human rights law. This is not to say that they are not subject to these specialised fields of law, but they are not specifically regulated, that is, in express terms. Hence, the need for special measures to protect women and children from sexual exploitation and sexual abuse becomes even more significant.

It is difficult to appreciate the magnitude of the problem of sexual exploitation and sexual abuse of women and children by forces employed by both PSCs and PMCs, especially during conflict situations. There are a number of reasons for this, which present some of the dilemmas in this discourse. First, it is difficult to document something that happens within the private domain and involves ‘intimate’ issues. Reports do show, however, that the problem is real. For example, reports of sexual violence against women in the current armed conflicts in Burundi, DRC, Sudan, Uganda and Somalia, put the peacekeepers and the private security sector in particular on the spotlight, more especially because of the latter’s active involvements in these conflicts. What one person can view as sexually exploitative or abusive may not be the case to another. If a private security/military peacekeeper, for instance, gives a hungry woman food or money in return for sexual favours with both parties fully understanding the consequences of their ‘agreement’, could that be viewed as exploitation or abuse? Secondly, should something in the private/personal domain be in any way regulated especially in this day of human rights? Assuming a woman who is hungry in a conflict situation takes advantage of the opportunity of the presence of peacekeeping forces and sells sex in return for money or food. In the first instance, the peacekeeper takes advantage of the fact that the woman is starving and reaches an understanding with the woman for the sexual favours in return for food or money. In the second instance, the starving woman takes advantage of the presence of the peacekeeper who is ‘starving’ sexually by extending (or agreeing to) a sexual favour in return for money, which she desperately needs. The question is: who is abusing who? And also, which party is forced to engage is the business? Thirdly, should women in conflict situations be allowed to engage in sex work in order to service sexually ‘starving’ peacekeeping forces? If the right to work also covers the right for women to use their bodies for sex work, then should their right be violated by criminalising sex work? Fourthly, should peacekeepers be prohibited from buying services of sex workers during peacekeeping mission operations? If so, what about their right to privacy, especially if the ‘business’ is conducted by consenting adults who fully appreciate the consequences of their acts?

The Inter-Agency Standing Committee Task Force on Protection from Sexual Exploitation and Abused produced a Model Information Sheet for Local Communities, (available at www.womenwarpeace.org/issues/violence/GBV_nairobi/COC_infosheet.pdf) which defines sexual exploitation as ‘exchanging money, shelter, food or other goods for sex or sexual favours from someone in a vulnerable position’ and sexual abuse as ‘threatening or forcing someone to have sex or provide sexual favours under unequal or forced conditions’. In so far as the definition of sexual exploitation is concerned, the first problem is the question of consent. It would seem that even if the person in the so-called ‘vulnerable position’ consents to the ‘exchange’, sexual exploitation still takes place. But how does one define vulnerability? In such cases, there is sometimes a thin line between sexual exploitation and sexual relations free of any untoward pressures. Such a definition should not be seen as prohibiting what vulnerable persons should or should not do with their bodies – they still remain human beings with rights (including taking informed decisions on whom they want to engage with sexually). The second problem relates to the question of who is in a vulnerable position. Is the sexually ‘starving’ peacekeeper or the person distressed by the conflict situation?

In so far as the definition for sexual abuse is concerned, the question of proof becomes a problem. How does one prove such threats or force? From the definition provided, the sexual abuse does not seem to include rape, which may be defined as intentional and unlawful sexual intercourse with a woman without her consent. The other question is what is meant by ‘unequal or forced conditions’? Unequal in relation to what? Forced conditions as a result of what? What conditions are considered equal and free will? Is it possible that sexual relations between a peacekeeper and a local woman could be as a result of an equal understanding undertaken in free will by both parties?

While the Model Information Sheet states that sexual activity with anyone under the age of 18 regardless of consent is prohibited. The same is true with purchasing sexual acts with money, employment, goods or services. This becomes tricky in the sense that it may sometimes be difficult to determine the intention of the person giving money, employment, goods or services. Assuming someone gives money/employment/goods/services to someone out of the goodness of his heart and later on forms an intention of requesting sexual favours. Would this be considered to be purchasing the sexual act? The exchange of humanitarian assistance (food rations, shelter suppliers) for sexual assistance is also prohibited. The same is true with any forced, coercive or degrading sexual acts. The Model Information Sheet is very important for the local communities wherein peacekeeping forces operate. While it makes reference only to the United Nations peacekeeping forces (military members of national contingents), UN Military Observers and UN civilian police, it does not make reference to the forces employed by the PSCs and PMCs. Such measures are also important when it comes to the private security/military industry.

The United Nations Special Measures Bulleting for the Protection from Sexual Exploitation and Sexual Abuse is applicable only to UN staff members and not to forces employed by PSCs and PMCs. This makes the private forces generally free from any specific policy regulating their conduct during peacekeeping missions. Any policy in place, however, may be one that an individual PSC/PMC may make to regulate their conduct. Such a policy may not necessarily be legally binding. The UN Bulletin is also not a binding instrument to the UN staff and is a worthless piece of paper in so far as the private security/military industry is concerned. An example of sexual exploitation and abuse by the private security/military industry operating in conflict situations deserves mention. A private security company, DynCorp’s employees have in the past been accused of engaging in perverse, illegal and inhumane behavior involving women and of having committed immoral act against women. This company’s personnel were reportedly accused of running a prostitution ring in Bosnia, which was dubbed by Kelly Patricia O’Meara as the ‘DynCorp Disgrace’ (see www.insightmag.com.main.cfm/include/detail/storyid/163052.html).

In the absence of regional legal framework specifically regulating the private security sector involved in peacekeeping operations, it would be useful to make use of existing general legal frameworks applicable, though these are not necessarily sufficient. In terms of article 18 (3) of the African Charter on Human and Peoples’ Rights (African Charter), it is provided that States shall, among other things, ensure the protection of the rights of women and children as stipulated in international declarations and conventions. These declarations and conventions, however, are not specified in the African Charter. The two most important points in this provision is firstly, the recognition or acknowledgement of women’s and children’s rights and secondly, the reference of these rights to international declarations and conventions. This, therefore, suggest that the rights of women and children in conflict situations, where the private security industry is in operation, are guaranteed under international declarations and conventions. It is also the duty of every State Party to the African Charter to ensure that these rights are protected in particular from sexual exploitation and abuse by staff employed by PSCs or PMCs.

After the African Charter, the first point of reference is two human rights instruments: the African Charter on the Rights and Welfare of the Child and the Protocol to the African Charter on Human and Peoples` Rights on the Rights of Women in Africa. The second point of reference is the Convention on the Rights of the Child and the Convention on the Elimination of All Forms of Discrimination against Women. While all these instruments do address the problem of sexual and sexual abuse of women and children in general, they are not specific in so far as the operation of PSCs and PMCs are concerned. Perhaps, before the problem of sexual exploitation and sexual abuse of women and children is addressed, there is a need to understand the dynamics of the private security/military industry, which calls for a new topic altogether. This briefing has highlighted some of the issues associated with the absence of special measures (and the need for putting them in place) within the private security/military industry in general and in the prevention of sexual exploitation and sexual abuse against women and children in particular.

Sabelo Gumedze, Defence Sector Programme, ISS Tshwane (Pretoria)