Peacekeepers and sexual violence: The disjuncture between domestication and implementation
| Jurisdiction | South Africa |
| Citation | (2019) African Yearbook on International Humanitarian Law 1 |
| Author | Maseka, N. |
| Date | 30 October 2020 |
| Pages | 1-24 |
| Published date | 30 October 2020 |
1
Peacekeepers and sexual violence:
The disjuncture between
domestication and implementation
*Ntemesha Maseka
**David Abrahams
Abstract
Sexual exploitation a nd abuse by United Nations peacekeepers a re
prevalent in contemporary ar med conicts. Peace keepers who commit
these crimes agai nst the local population do so with impun ity. This article
grapples with whether a lacu na in the exist ing law causes the impunit y
and thus lack of accountabilit y of peacekeepers who commit suc h acts.
International human itarian law absolutely prohibits sexu al violence at
all times and agai nst anyone. Moreover, sexual violence as a v iolation
of international humanita rian law constitutes a wa r crime. There is a
complex relationship between i nternational and national law applicable
to peacekeepers when they com mit a crime, however, the law, at least in
the South Afr ican case, is not decient.
Keywords: accountability, sexual violence, UN peacekeepers, war
crimes, Implementation of the Geneva Conventions Act, 2012.
1 INTRODUCTION
South Africa’s greatest ass et lies in the power of its example.1
Since the dawn of democracy, South Africa has recognised peace-
keeping and conict resolution in Africa as one of the key pillars
of implementation of the state’s foreign policy towards peace and
* LLB LLM (cum laude). LLD Candidate, Nelson Mandela University. Emai l: [nte
meshamaseka@g mail.com]. The art icle is based on excerp ts from Ntemesha
Maseka Accountability of United Nation s Peacekeepers for Sexual Viole nce
(unpublished LLM diss ertation, Nelson Mandela University, 2019).
** BJuris LLB LLM ( UPE) LLM (U NIGE, Switze rland). Email: [David. Abrahams@
mandela.ac.za]. Resear ch Associate, Nelson Ma ndela University. Superv isor of
Ms Ntemesha Masek a.
1 Department of Inter national Relations and Coo peration – White Paper on South
African Fore ign Policy, ‘Building a Be tter World: The Diplomacy of Ubu ntu’,
available at ps://www.gov.za/sites/default/les/gcis_ document/2 01409/
nal-dra ft-white-paper-sa-foreign-policy.pdf> (accessed on 2 3 April 2020).
(2019) African Yearbook on International Humanitarian Law 1
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2 AFRICAN YEARBOOK OF INTERNATIONAL HUMANITARIAN LAW
security on the continent.2 Despite being a relative newcomer to
the international peacekeeping arena, South Africa is considered a
regional military power and ranks seventeenth on the global rank ings
of personnel contributions by countries.3 This broad statement of
government policy is also clearly illustrated in the approach of the
Constitution of the Republic of South Africa, 1996 (the Constitution)
and the courts.
The unanimous decision of the Const itutional Court in t he Tor tur e
Docket case4 began with a quote from former President Nelson Mandela,
who in 1993 expressed that the future of South Af rica’s foreign
relations will be based on the ‘belief that human rights should be the
core concern of international relations’. Even though apartheid made
it difcult and delayed the process of South Af rica taking its rightful
and responsible place among the community of nations, Mandela
believed that South Afr ica had the resources and commitment to allow
the country to make a positive contribution to peace, prosperity and
goodwill in the world.5
The preamble to the Constitution echoes this aspirational
statement on foreign policy:
We, the people of South Africa, … adopt th is Constitution as t he
supreme law of the Republic so as to … build a un ited and democratic
South Africa able to ta ke its rightful place as a s overeign state in the
family of nations.6
Against this backdrop, the Constitutional Court has made it clear
that constitutional and general legal interpretation is informed by
international law.7 The reasoning of the court can be interpreted to
provide that the extent of South Africa’s ‘responsibilities as a member
of the family of nations is to investigate [international crimes]’.8
2 Gustavo de Carval ho ‘A changing environ ment for peacekeeping in Af rica:
South Africa n perspect ives’ (2014) New Trends in Peacekeeping: In Search for a
New Direction 17th International Symposium on Se curity Affairs 96.
3 Walter Lotze, Cedric de C oning and Theo Neeth ling ‘Peacekeeping Contr ibutor
Prole: South Af rica’, available at forpeacekeeping.
org/2014/04/03/contributor-prole-south-af rica/>; United Nations Peace-
keeping ‘Troop and Police Contr ibutors’, available at
un.org/en/troop-a nd-police-contributors> (accessed on 29 May 2018).
4 National Commissioner of th e South African Police Ser vice v Souther n African
Human Rights Litigation Cent re 2015 (1) SA 315 (CC) (hereafter the Torture Docket
case) .
5 Ibid at para 1.
6 Preamble to the Const itution of the Republic of South A frica, 1996 (hereafter
Constitution).
7 See Glenister v Presid ent of the Republic of South Africa 2011 (3) SA 347 (CC).
8 See Torture Docket case supra note 4 pa ra 3.
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PEACEKEEPERS AND SEXUAL VIOLENCE 3
This rationale forms the cornerstone of this article which analyses
an avenue for the development of South African law, particularly the
prosecution of South African troops for sexual violence as a war crime
committed while on a United Nations (‘UN’) peacekeeping operation.
Sexual violence committed in wa rtime has been termed both
‘one of history’s greatest silences … [and] the oldest crime of war’9.
The gravity of this offence is reected in the classication of sexual
violence as a war crime, a label attached to the most serious crimes of
concern to the international community.10 Thus, perpetrators of sexua l
violence, regardless of their station in life, must be held accountable.
This article is divided into four parts. The rst part sets the tone for
the rest of the discussion by providing a backg round to peacekeeping
and the sexual exploitation and abuse problem by peacekeepers. T he
second part considers the applicability and application of international
humanitarian law to UN peacekeeping operations. Following that, the
discussion turns to the prohibition of sexual violence in international
humanitarian law. The third par t considers, from a South African
perspective, how the Implementation of the Geneva Convention Act 8
of 2012 gives effect to the international obligations established in the
preceding sections.
This approach is preferred because the International Criminal
Court (‘ICC’) is unli kely to prosecute a single act of sexual ex ploitation
and abuse by UN peacekeepers as a wa r crime. After all, except in
exceptional circumsta nces, such a single act will not be considered of
sufcient gravity un less linked to a wider attack.11 Even if the act meets
the war crime criteria, several major troop-contributing countries
are not party to the Rome Statute which has obvious implications
for prosecution by the ICC.12 Moreover, the Implementation of the
Rome Statute of the International Criminal Cou rt Act 27 of 2002 (‘ICC
Act’) faces repeal and replacement with the International Crimes Bill
9 ‘UNIFE M commends unanimous Sec urity Council cal l to end sexual violence’,
Statement by Ines Alberd i, Executive Direc tor, UNIFEM 2 0 June 2008; ‘A call
to action: Accountabilit y to women in all aspects of conic t prevention, peace
building and re covery’ Statement by Ines Alberdi, E xecutive Director, UNI FEM
at International Colloqu ium on Women’s Empowerment, Leadership, Securit y,
Monrovia, Liber ia 7 March 2009.
10 See Edward Wis e ‘International Crimes and Domest ic Criminal Law’ (1989) 38
DePaul L Rev 923 928 929 and art 5 of the Rome Statute of t he International
Criminal C ourt (1 July 2002) 2187 UNTS 38544 (herea fter Rome Statute).
11 Roisin Burke ‘United Nations M ilitary Peacekeeper C omplicity in Sexual A buse:
The International Cr iminal Cou rt or a Tri-hybrid Cour t’ in Morten Ber gsmo
(ed) T hematic Prosecution of Intern ational Sex Crimes (2018) 3 40.
12 Ibid. See also Naom i R Cahn ‘Beyond Retr ibution and Impunit y: Responding
to War Crimes of Sexua l Violence’ (2005) 1 Stanford Journ al of Civil Rights and
Civil Liberties 240.
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4 AFRICAN YEARBOOK OF INTERNATIONAL HUMANITARIAN LAW
which would essentially ll the gap.13 This resolve to repeal the ICC
Act is rooted in the executive’s thwarted attempt to withdraw South
Africa from the ICC for several reasons, including that membership
hindered the state from being an act ive and effective mediator in peace
processes.14 The implementing legislation of the Geneva Conventions
does not face similar resistance. These reasons justify the approach of
the study to focus on the universa lly ratied 1949 Geneva Conventions.
The fourth section offers some concluding remarks.
2 FRAMING THE CONTEXT
UN peacekeeping operations have for decades provided essential
security and support to millions of people and fragile inst itutions
emerging from conict.15 However, ‘peacekeeping’ is a technique
pioneered and developed by the UN that dees simple denition. Its
foundational principle is that the impartial presence of multinational
troops on the ground can ease tensions and allow negotiated solutions
in a conict situation.16 The UN Secretariat, specical ly the UN
Department of Peacekeeping Operations (‘DPKO’) and the Depar tment
of Field Support (‘DFS’) dene peacekeeping in the United Nations
Peacekeeping Operations Principles and Guideli nes (also known as the
Capstone Doc trine) as:
a technique designed to preser ve the peace, however fragi le, where
ghting has been ha lted, and to assist in implementing agr eements
achieved by the peacema kers … [it] has evolved from a primarily
military mode l of observing cea se-res and the sep aration of forces
after inter-state wars, to incor porate a complex model of many
13 See Memorandum on the objec ts of the International Crimes pa ra 2.1 25 Inter-
national Crimes Bi ll (B37-2017) GG 41309 of 8 December 2017, available at
29 June 2020).
14 Democratic Alliance v Mini ster of Internati onal Relations and Coope ration and
Others (Council for t he Advancement of the South A frican Const itution
Intervening) 2 017 (3) SA 212 (GP); Mail and Guardian ‘Ramaphosa has a rare
chance to stop SA from withd rawing from the ICC’, available at
za/article/2 018-06 -12-ramaphosa-h as-a-rare -chance -to-stop -sa-withd rawing-
from-the-icc> (accesse d on 28 November 2018); Daily Maverick ‘SA revives
threat to leave ICC using the laws b ack door’, available at events/peacekeepersday/2010/factsheet.pdf> (acces sed
dailym averick.co.z a/article/2 018-06 -12-sa-rev ives-th reat-to-leave- icc-using-
the-laws-back-do or/> (accessed on 28 November 2018).
15 United Nations ‘Backgr ound Note: United Nations Peacekeeping ’, available at
on 13 July 2017).
16 Ben F Klappe ‘T he law of international peac e operations’ in Dieter Fle ck (ed)
The Handbook of Inter national Humanitarian Law 2ed (20 08) 635.
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PEACEKEEPERS AND SEXUAL VIOLENCE 5
elements – militar y, police and civilian – workin g together to help lay
the foundations for sustainable pe ace.17
For the purposes of this article, the denition of peacekeeping as
proffered by the DPKO and DFS shall be adopted as it is provided for
in a publication that sits at the highest level of the current doctrinal
framework for UN peacekeeping. Most importantly, this denition
identies the categories of personnel that a peacekeeping operation may
comprise of, which are military, police and civilia n. This distinction is
signicant because each component has a distinct legal status.
The conditions under which the men and women who serve
the blue ag do so are often arduous and dangerous.18 Even so, the
history of UN peacekeeping which dates back to 1948, has been one
of distinguished collective accomplishment and personal sacrice.19
A Nobel Peace Prize was awarded to the U N in 1988 in recognition of
its peacekeeping achievements.20 As of May 2020, in excess of 100 00 0
personnel serves on thi rteen peacekeeping operations led by the DPKO
in Africa, Asia, Europe and the Middle East.21
The unique mandate of UN peacekeepers deployed in conict
settings involves inter alia the protection of civilians alongside the
protection and promotion of human rights. Through this role,
peacekeepers are direc tly involved in the lives of the local populations
17 United Nations Peacekeeping O perations ‘Pri nciples and Guidelines’ 18,
availa ble at ng.un.org/sites/default/le s/capstone_eng_ 0.
pdf> (accessed on 23 Apr il 2020).
18 The modern peace keeping environme nt is often remote and dif cult, with
little infr astructu re or communications. O ne of the largest UN peac ekeeping
operations, the UN m ission in the DRC is deployed in a count ry the size
of Western Europe that has abo ut 480 kilometres of pave d road. Most eld
missions face practic al challenges suc h as limited or severely wea kened local
markets for goods or serv ices, lack of housing stock, potable water, or suf cient
fresh food supply. The logistic and supply c hallenges facin g many missions
make deployment a highly complex i ssue.
19 UN General A ssembly ‘A comprehensive strategy to eli minate future
sexual exploitat ion and abuse in United Nations peac ekeeping operations’
(A/59/710) para 1, available at g/en/section s/nobel-peace -prize/u nited-nation s-peace-
asp?symbol=A/59/710> (accessed on 23 July 2017) (hereafte r the Zeid report).
20 United Nations ‘United Nations Peacekeepin g Forces’ (undated), available at
keeping-forces/index.htm l> (accessed on 23 July 2017). Nobel Peace Pr ize
Organisation ‘T he Nobel Peace Pri ze 1988’, available at
prize.org/pri zes/peace/1988/summary/> (accessed on 13 November 2018).
21 UN Peacekeeping ‘ UN Peacekeeping Op erations: Where we oper ate’, available
at -we-operate> (accessed on 3 May
2020). UN Missions ‘ United Nations Peacekeeping Op erations’, available at
political missions a nd good ofces engagements led by the UN Depar tment of
Political Affairs.
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6 AFRICAN YEARBOOK OF INTERNATIONAL HUMANITARIAN LAW
hosting the UN peacekeeping operation.22 Human rights violations
are deeply unsettling irrespective of their source.23 Therefore, it is
particularly distressing when UN peacekeepers, g iven their unique
mandate, violate the human rights of conict-ravaged civilians that
they arrived to protect. Yet, such abuse has become common.24
There has been increasing documentation of peacekeepers’
engagement in a wide range of severe human rights violations.25 One
such violation, which is the focus of this article, is sexual exploitation
and abuse. In the context of UN peacekeepers, the terms ‘sexual
exploitation’ and ‘abuse’ are often used interchangeably with the term
‘sexual violence’. However, each of these terms have specic meanings.
In 2003, the UN Secretary-General at the time, Ko Annan, issued
a bulletin, Special measures for protection f rom sexual exploitation and
sexual abuse, which contained measu res to prevent and address cases of
sexual exploitation and abuse, applicable to all UN staf f.26
In this Bulletin, the phrase consists of two terms, namely ‘sexual
exploitation’ and ‘sexual abuse’. Sexual exploitation is dened in the
bulletin as ‘any actual or attempted abuse of a position of v ulnerability,
differential power or trust, for sexual purposes, including, but not
limited to, proting monetarily, socially or politically from the
sexual exploitation of another’.27 Examples of such conduct include
‘transactional sex, solicitation of transactional sex, and exploitative
relationships’.28 Sexual abuse is dened as t he ‘actual or threatened
physical intrusion of a sexual natu re, whether by force or under unequal
22 UN Peacekeeping ‘ What We Do’, available at
what-we-do> (accessed on 3 May 2020).
23 Tom Dannenbaum ‘Translating the St andard of Effective Control into a Sys tem
of Effective Accou ntability: How Liability Should b e Apportioned for Violations
of Human Rights by Memb er State Troop Contingents Servi ng as United Nations
Peacekeepers’ (2010) 51 Harvard International L aw Journal 113 119.
24 Dannenbaum op cit note 23 at 114.
25 See Pam Spees ‘Gender Just ice and Accountability in Peace Supp ort Operations:
A Policy Brieng Pape r by International Ale rt’ 21, available at
www.un.org/womenwatch/osagi/feature/postconflict/gender%20justice-
international%20 alert.pdf> (accessed on 23 April 20 20); Human Rights Watch
‘Human Rights Watch World Report, 1994: Somal ia’, available at
hrw.org/reports/1994/W R94/Africa-0 8.htm#P356_163056> (accessed on 2
August 2017); CNN ‘Photos revea l paratroopers’ ab use in Somalia’ (17 April
1997), available at D/9704/17/belgium. soma
lia/> (accessed on 1 July 2017).
26 UN Secretar y-General’s Bul letin ‘Specia l measures for protect ion from sexual
exploitation and sexua l abuse’ ST/SGB/2003/13, 9 October 2 003 section 1
(here after UN Secreta ry-General’s 2003 Bullet in).
27 Ibid.
28 UN ‘UN Conduct i n Field Missions’, available at
org/sea-overv iew> (accessed on 16 September 2018).
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PEACEKEEPERS AND SEXUAL VIOLENCE 7
or coercive condition s’.29 Examples of this form of abuse include sexual
assault and rape.30 Also, ‘all sexual activity with a child (under 18
years of age)’31 is considered sexual abuse. The aforementioned acts
constitute serious misconduct subject to disciplinary measures.32
This Bulletin repres ents the rst time the UN publicly acknowledged
the problem of sexual exploitation and abuse and sought to enforce
system-wide measures to counter it.33 This ter m is, therefore, commonly
used by UN entities and media reports to describe certain conduct or
behaviour of a sexual nature that is a breach of UN internal r ules.34
However, the same act of sexual exploitation and abuse may also
constitute a form of sexual violence as a cri me which is prohibited and
criminal ised in both international law and national crimi nal law.35 This
article focuses on conduct reported a s a form of sexual exploitation and
abuse, that may constitute the crimes of rape and sexua l violence as
prohibited and criminalised in law – both international and national.
Members of the local populations, particularly women and
children, in the countries hosting UN peacekeeping operations are
the victims of sexual exploitation and abuse by UN personnel.36
Generally, the perpetrators are UN military, police or the civilian
personnel engaged in the peacekeeping operations, who are in a
position to use humanitarian aid and ser vices intended to benet
local populations as tools of exploitation. The economic inequality
between the peacekeepers and the local populations, linked with
the limited supply of basic goods and the lack of income-generating
opportunities, have been identied as factors that leave the locals
vulnerable to exploitation and abuse.37 The widespread basis of sexual
29 See UN Secret ary-General’s 2003 Bul letin op cit note 26.
30 See UN Conduct in Field M issions op cit note 28.
31 See UN Sec retary-General’s 2003 Bu lletin note 26.
32 UN Conduct in Field Mi ssions op cit note 28 at section 3.
33 Suk Chun ‘Sexua l Exploitation and Abuse by UN Peacekeepers’ 1, avai lable at
(accessed on 23 April 202 0).
34 UN Glossary on Sexual Exploit ation and Abuse: The matic Glossary of cur rent
terminology related t o Sexual Exploitation and Ab use (SEA) in the context of the
United Nations 2ed (24 July 2017) 8.
35 Marco Odello ‘Tackli ng Crimina l Acts in Peacekeeping O perations: The Accoun-
tability of Peacekeep ers’ (2010) 15:2 Journal of Conict and Secur ity Law 1 11;
A crime is an act or om ission that the law makes pun ishable. See Black’s Law
Dictionary.
36 Vanessa Kent ‘Protecting c ivilians f rom UN peacekeepe rs and humanita rian
workers: Sexual ex ploitation and abuse’ in Chiyuki Aoi, Ce dric de Coning and
Ramesh Thaku r (eds) Unintended Consequences of Peacekeeping Operatio ns (2007)
52; Chun ‘Sexual E xploitation and Abuse by U N Peacekeepers’ Inter national
Peace Research Institute 1–2.
37 Ibid.
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8 AFRICAN YEARBOOK OF INTERNATIONAL HUMANITARIAN LAW
exploitation and abuse evidenced by investigations and reports reveals
that peacekeepers who commit these acts do so with i mpunity.38 This
absence of fear for any serious repercussions for their actions is rooted
in peacekeepers’ perception of having im munity from prosecution
for crimes committed while on deployment. This approach has been
justied because in numerous cases it has been the norm.39
As has been stated above, peacekeeping operations may comprise
different categories of personnel: military, civilian and police.
Nevertheless, all these personnel are peacekeepers str icto lat u. This
division of labour corresponds with the d istinct legal status each group
has.40 The article focuses on peacekeepers str icto sensu that is, members
of the military component of a UN peacekeeping operation. These
peacekeepers are the most likely offenders41 and are immune from host
state jurisdiction for crimes committed but must undergo a judicial
process in their home state.42 Forms of this general statement are
repeated in documents governing peacekeepers, such as the Status of
Forces Agreement (‘SOFA’)43 and the Memorandu m of Understa nding
38 See UN Genera l Assembly ‘Promotion and Protec tion of The Rights of Child ren:
Impact of Armed C onict on Child ren’ 26 August 1996, UN doc A /51/306,
available at 7B65BFCF9B-
6D27-4E9C-8CD3-CF6E4FF96FF9%7D/CAC%20A51%20306.pdf> (accessed 3
October 2017) para 98; Kent op cit note 36; Spe es op cit note 21 at 21; UNHCR
and Save The Childre n-UK Note for Implement ing and Operational Part ners on
Sexual Violence and Exploitat ion: The Experi ence of Refugee Children in Guine a,
Liberia And Sierra Leo ne Based on Initial Findings and Recom mendations f rom
Assessment Mission, 22 Oc tober – 30 November 2001 (2002), available at
www.unhcr.org/en-au/3c7cf89a4.pdf> (accesse d on 29 June 2020).
39 Zeid Report para 37; Zeid Report pa ra 66; Keith J Allr ed ‘Peacekeepers a nd
Prostitutes: How Deployed Forces Fu el the Demand for Trafcked Women and
New Hope for Stopping It’ (2006 ) 33:5 Armed Forces and Society 8.
40 Kathleen Jenni ngs ‘The Immunit y Dilemma: Peace keepers’ Crimes a nd
the UN’s Response’ (18 September 2018) 3, available at ps://www.e-ir.
info/2017/09/18/the-immunity-dilemma-peacekeepers-crimes-and-the-uns-
response/> (accessed on 9 August 2 018).
41 Corinna Csá ky No One to Turn to: The Under-Report ing of Child Sexual Exploitation
and Abuse by Aid Workers and Peacekeepers (20 08), available at
resourcece ntre.savethe children .net/node/2732/pdf/no_ one_to_t urn_to _1.
pdf> (Accessed on 29 June 2 020). Additionally, ofcial statistics show a higher
incidence of allegations re ported against pe acekeeping forces tha n any other
UN staff. See U N annual rep orts of the Secre tary Genera l bulletin ‘Sp ecial
Measures for Protec tion from Sexual Exploitation and Se xual Abuse’ A/59/782
(15 April 2005); A/60/861 (24 May 2006); a nd A/61/957 (15 June 2007), available
at (accessed on 23 April 2 020).
42 Fleck op cit note 16 at 640.
43 The SOFA is concluded between t he UN and the host State. It is key legal
instrument t hat sets out the basic framework of t he peacekeeping operat ion
and denes the legal po sition of the personnel i nvolved. A model SOFA was
drafted in 1990 by t he UN Secretary General to s erve as a basis for indiv idual
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PEACEKEEPERS AND SEXUAL VIOLENCE 9
(‘MOU’),44 but no clarity is provided on the legal basis for their
prosecution.45 Further more, section 2.2 of the UN Secretary-General’s
2003 Bulletin wh ich contains the denition of sex ual exploitation and
abuse does not per se apply to members of the military contingent of a
peaceke eping operati on.46 The UN may merely urge these peacekeepers
to adhere to the measures because its powers to ensure compliance are
limited.47 Thus, it is argued that this ambiguity on the means against
which they can be held accountable and to what extent, contributes
to the impunity of the peacekeepers. This vagueness of the legal
framework also arguably weakens any attempt at accountability of
perpetrators through implementation and subsequent enforcement.
Troops from the South African National Defence Force (‘SANDF’)
are currently ser ving as peacekeepers on the UN Organisation
Stabilisation Mission in the Democratic Republic of the Congo
(‘MONUSCO’).48 These South A frican troops have not been immune
from allegations of sexual exploitation and abuse while serving on a
UN peacekeeping operation.49 It is not inconceivable to conclude that
South African troops commit such abuse while on a mission without
any fear of serious repercussions. According to the model SOFA and
conrmed by the model MOU, these troops are protected by im munity
agreements. It applies unt il a mission speci c SOFA is concluded. See Model
SOFA A/45/594.
44 A legal agreement betwe en the UN and the se nding State that governs the
relationship betwee n the two. See Memorandu m of understandi ng between
the United Nations and part icipating state contributing re sources to the United
Nations Peacekeeping Ope rations A/C.5/63/18, available at
org/pdf?sym bol=en/A/C.5/63/18> (accessed on 23 April 2020) (herea fter model
MOU).
45 Paragraph 47(b) of the Model SOFA A/45/594 provides that members of national
contingents are subject to t he exclusive criminal jurisd iction of their sending
State regarding any c riminal offences which m ay be committed by them in the
host State. This is con rmed in para 7.22 of the model MOU.
46 Zeid Report paras A 32–A33.
47 Kwame Akonor UN Peacekeeping in Afr ica: A Critical Examin ation and Recom-
mendations for Improvement (2016) 63.
48 UN peacekeeping ‘ Troop and police contributors’, available at s://peace-
keeping.un.org/en/troop -and-police- contributors> (accessed on 10 Octobe r
2018); Section 11 of Defence Force Act 42 of 200 2, available at w.
un.org/depts/los/legislationandtreaties/pdfles/zaf_defence_act_2002.pdf>
(accessed on 29 June 2020).
49 News24 ‘18 New Sexual Abu se Claims Agai nst UN peacekeep ers in the DRC’,
available at
claims-aga inst-un-peacekeep ers-in-dr c-20180214> (accessed on 29 May 2018);
News 24 ‘SA troops acc used of beating a b oy and sexually e xploiting women
in the DRC’, available at outhAfr ica/News/sa-
troops-accused-of-beating-boy-and-sexually-exploiting-women-in-dr-congo-
un-20180212> (accessed on 29 May 2018).
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10 AFRICAN YEARBOOK OF INTERNATIONAL HUMANITARIAN LAW
while on a mission. Therefore, any crimes they commit w ill have to be
prosecuted by their home state, South Africa.
Peacekeepers are often deployed into conict or unstable post-
conict environments. In accordance with the rationale of the
International Court of Justice (‘ICJ’) in the Legality of the T hreat or
Use of Nuclear Weapons advisory opinion, international humanitarian
law (‘IHL’) – the law that governs armed conict – is designated as lex
specialis because it contains the most specic r ules for the prevailing
circumstances. T he ICJ reasoned that specic rules are more effective
than general ones.50 Therefore, IHL is the rst port of cal l to establish
obligations of UN peacekeepers while on duty. This determination
contributes to clarifying what crime peacekeepers can be prosecuted
for in their home state.
3 INTERNATIONAL HUMANITARIAN LAW AS LEX
SPECIA LIS
The designation of IHL as lex specialis does automatically mean it applies
to the prevailing circumstances. Certa in criteria set out in Common
Articles 2 and 3 of the 1949 Geneva Conventions would have to be
fullled. T his involves a determination of whether an armed con ict
exists and the classication of that conict as either international
(between two or more states) or internal (between a state and a non-
state armed group or between non-state armed groups).51
The distinction between the two is a consequence of political
history rather than military necessity or humanitar ian need. There
is a difference in the applicable law: the four Geneva Conventions
and Additional Protocol I apply to international armed conicts,
while Common Article 3 to the Geneva Conventions provides a
‘minimum yardstick’ of norms applicable in non-international armed
conicts. Additional Protocol II develops and supplements the law in
non-international armed conicts subject to its applicability which
is dependent on inter alia a threshold of violence. The four Geneva
Conventions hold a particular signica nce because they have been
universally ratied, while the Additional Protocols have not enjoyed
equal status.52 However, the dichotomy between the two appears to be
50 ICJ Legality of the Threat or Use of Nuclear Weapons (Adv isory Opinion of
8 July 1996) ICJ Repor ts (1996) para 25 p 226 (her eafter Nuclear Weapons
Advisory Opin ion).
51 ICTY (Appeal s Chamber) Prosecutor v Tadic (2 October 1995) Ca se No IT-94-1-
AR72 para 70. Decision on t he Defence Motion for Interlocutor y Appeal on
Jurisdic tion.
52 ICRC ‘Geneva Conventions achieve u niversal acceptance’, available at
www.icrc.org/eng/resources/documents/news-release/2009-and-earlier/
geneva-conventions-news -210806.htm> (accessed on 13 Septemb er 2018).
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PEACEKEEPERS AND SEXUAL VIOLENCE 11
blurring through the emergence of customary international law (‘CIL’)
which applies to both conicts.53
Additionally, an unavoidable question, which has been the subject
of debates for decades, is the applicability of IHL to UN peacekeeping
operations.54 It is beyond the scope of this ar ticle to analyse these
debates, however, what is t for this purpose is to outli ne the conclusion
of the discourse. An examination of applicable treaty law and the
jurisprudence of international judicial bo dies has led to the conclusion
that the legal classication of a situation involving peacekeepers
depends on the facts on the ground and the fullment of criteria
stemming from Common Article 2 for international armed conicts
and Common Article 3 for non-international armed conicts.55
While these established conditions do not differ when a peace-
keeping operation is involved, the mere presence of a peacekeeping
operation in armed conict does not make it a party thereto. The
signicance of the determination of whom the party to the conict is,
whether it is the UN or troop-contributing state, it claries on whom
IHL obligations rest. As a consequence of its command and control over
the peacekeeping operation, thus exercising effective control of it for
the purposes of attribution of conduct, the UN is identied as a party
to the conict.56 From another angle, the fact that U N peacekeeping
operations form a subsidiary organ of the organisation means they are
bound by IHL mutatis mutandi s.57
53 Ola Engadahl noted that t he ICRC study formulated 161 rules of which a
majority of those apply accordi ng to the study to non-internat ional armed
conicts as wel l.
54 See for example Daphna Shraga ‘ The United Nations as an Actor B ound by
International Huma nitarian Law’ (1998) 5 International Peacekeeping 65 66– 81;
31st Round Table on Current Problems of Internationa l Humanitari an Law,
International Huma nitarian L aw, Human Rights and Peace Ope rations, 4– 6
September 200 8, International I nstitute of Humanita rian Law, San Remo,
20 09 90 –107.
55 See for example, ICTR ( Trial Chamber I) The P rosecutor v Rutaganda (6 December
1999) Case No ICTR-96- 3-T para 92 ‘the denit ion of an armed conic t per se
is termed in the abst ract, and whether or not a situation can be desc ribed as an
“armed conict”, meeting the c riteria of Common A rticle 3, is to be decide d
upon on a case-by-ca se basis’; ICTY (Trial Chamber) The Prosecu tor v Milutinovic
(26 February 20 09) Case No IT-05 -87-T para 125 ‘that “the existence of a n
armed conic t does not depend upon the views of the part ies to the conict”’.
56 See Art 7 of the Dra ft Art icles on the Responsibilit y of International Orga ni-
sations; ICJ Application of the Conve ntion on the prevention and punishme nt of the
crime of genocide ( Bosnia and Herzegovina v Se rbia and Montenegro) (judgement
of 26 February 2 007) ICJ Reports (20 07) para 404; Some s cholars such as Ola
Engdahl have used t he overall control test instea d as test to determine parties
to an armed con ict.
57 International Law C ommission, Responsibility of Intern ational Organisations:
Comments and Obser vations Received by Inter national Organis ations, 63rd
session, 2011, UN Doc A/CN.4/637/Add. 1 13.
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12 AFRICAN YEARBOOK OF INTERNATIONAL HUMANITARIAN LAW
At this juncture, it is importa nt to recall that, in line with clauses
in the SOFA and MOU,58 even though IHL obligations rest on the UN,
troop-contributing states like South Africa maintain the obligation to
exercise jurisdiction over their personnel. The qualication is because
the UN does not have the necessary judicial a nd administrative
structures to en force laws, therefore, the agreements the UN enters
into with troop-contributi ng countries gain more relevance. Moreover,
states are not released from their Common Article 1 obligations to
respect and ensure respect of IHL.59
South Africa has peacekeepers on MONUSCO’s Force Intervention
Brigade (‘FIB’) which is the ‘rst-ever offensive combat force’ of its
kind.60 The FIB is established within the operation’s existing force ‘on
an exceptional basis and without creating a precedent or any prejudice
to the agreed principles of peacekeeping’.61 The FIB operates under
the direct command of MONUSCO Force Commander and bears
the responsibility to neutralise armed groups and the objective of
contributing to a reduction of the threat posed by the armed groups,
both to state authority and civilian se curity in eastern Democratic Repu-
blic of the Congo (‘DRC’) and to make space for stabilisation activities.62
The UN Secur ity Council (‘UNSC’) references Chapter VII of the
UN Charter authorising MONUSCO to take all necessary measures to
perform mandated tasks, through its military component that is its
regular forces and the FIB.63 The explic it authorisat ion of the ma ndate
to take all necessary measures to neutralise and disarm rebel groups
through targeted operation makes it plausible to involve the military
personnel of the FIB in hostil ities. These actions in fullment of their
mandate (and not merely the words of the mandate) will form part of
the determination of the factual observation of whether MONUSCO
and thus the UN is a part y to the armed conict. T his determination,
as stated above is made based on the usual interpretation of Common
Articles 2 and 3 of the Geneva Conventions. The U N has acknowledged
that forces placed at its disposal such as in MONUSCO, form a subsidiar y
organ of the organisation and thereby are subject to IHL obligations.
58 Paragraph 47(b) of the Model SOFA A/45/594 and para 7.22 of the model MOU.
59 ICRC ‘Commentary of 2 016: Application of the Convention: Article 1’ para
133.
60 Press Release UN Se curity Co uncil ‘Intervent ion Brigade Authorized a s
Securit y Council Grants Mandate Renewal’ U N Doc SC/10964, March 28, 2013,
available at ss/en/2013/sc10964.doc.htm > (accessed
on 23 April 2020).
61 Ibid at para 9.
62 Ibid.
63 Ibid at para 12(b).
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PEACEKEEPERS AND SEXUAL VIOLENCE 13
The applicability of IHL is further afr med by the 1999 Secretary-
General’s Bulletin, which, although an internal document, was
promulgated ‘for the purpose of setting out funda mental principles and
rules of [IHL]’ to UN forces conducting operations under U N command
and control. It may be seen as a means to full Common Article 1
obligations to respect and ensure respect of IHL.64 Also, SOFAs which
the UN concludes with the host state such as the DRC65 typically ensure
that the operation is conducted ‘with full respect for the principles
and rules of international conventions applicable to the conduct of
military personnel including’ the 1949 Geneva Conventions and their
Additional Protocols.66 Although such provisions were not included
in the model SOFA, they have since been included in relevant SOFAs
since the UN Assistance Mission in Rwa nda SOFA in 1993. Therefore, it
is reasonable to conclude that such a provision is present in the SOFA
the UN concluded to establish MONUC (now, MONUSCO).
From the above, it is clear that IHL and the obligations it gives
rise to apply to MONUSCO as a UN peacekeeping operation. The
question as to when IHL applies is not addressed beyond the
restatement that the criteria set out in Common Articles 2 and 3 as
interpreted by the jurisprudence of international judicia l bodies to
involve a determination based on the prevailing facts on the ground
is decisive. Without being privy to the facts on the ground, there are
missing pieces of the puzzle. An examination of the mandate of this
consensual peacekeeping operation, for example, which uses certain
phrases like ‘all necessary measures’ in the execution of the mandate
against ‘armed groups’ (both local and foreign) could lead to different
scenarios involving the use of force: (1) in defence of their mandate
which would not amount to participation in the armed conict; (2)
the use of force that amounts to direct participation in hostilities; (3)
the use of force as a requirement for the existence of armed con ict.
64 ICRC ‘Commentary of 2016: Application of the C onvention: Article 1’ para
141.
65 In MONUSCO SOFAs were concluded b ut are condential and therefore c annot
be analysed for the pu rpose of a more den ite conclusion. See Depar tment
of Peacekeeping Operat ions (‘DPKO’), Ofce of the Under-Secre tary-Ge neral
(OUSG) (1992-present) Summary of AG 050.
66 See The Status of Forces A greement betwee n the United Nations and the
Government of Republic of Sout h Sudan concerning t he United Nations Mission
in South Sudan (‘U NMISS’), Juba, 8 August 2011, paras 6(a) and (b). While such
provisions are not included i n the ‘Model status-of-forces ag reement for peace-
keeping operations’ as prep ared by the UN Se cretary- General at the request
of the General Ass embly (UN Doc A/45/594, 9 October 1990), they have bee n
included in relevant SOFAs si nce the UN concluded such a n agreement with
Rwanda in respec t of the UN Assista nce Mission in Rwanda ( UNAMI R) on 5
November 1993, 1748 UNTS 1993, 3–28.
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14 AFRICAN YEARBOOK OF INTERNATIONAL HUMANITARIAN LAW
These scenarios, which are extensive studies on their own, justify the
approach taken in this art icle.
South Africa, as a troop-contributing state, is not released from
its obligations in terms of Common Article 1 to respect and ensure
respect of IHL. The rst leg of the obligation as previously outlined
mandates states such as South Africa to apply IHL provisions, inte r
alia to their organs, which include their armed forces. Specically, in
the context of peacekeeping operations, this entails ensuring militar y
personnel is adequately trained, equipped a nd instructed. South Africa
is also obligated to exercise criminal and disciplinar y jurisdiction
over its members when offences are committed. Having outlined the
applicability of IHL to peacekeepers, the discussion turns to a sy nopsis
of the prohibition of sexual violence in the lex speci alis.
A synopsis of the recognition and prohibition of sexual v iolence of
this densely codied body of law reveals that the prohibition against
sexual violence and rape stems as far back to customs of war in the
sixteenth century.67 IHL instruments have been rightly criticised for
not always being as explicit with prohibition, for instance, either
by sparse mention in instruments or in prosecutions. However, it is
undeniable that rape and sexual violence is absolutely prohibited with
no attenuating circumstances. This is based on Art icle 27 of Geneva
67 Examples of this a re, in the sixteent h century jur ist Genetico exa mined
the literature on war time rape and contended t hat it was unlawfu l to rape
women in wartime, eve n if the women were combatants; Hugo Grotius i n the
seventeenth centur y argued that se xual violence comm itted in wart ime and
peacetime ali ke must be punished.
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PEACEKEEPERS AND SEXUAL VIOLENCE 15
Convention IV,68 Common Art icle 369 and customary rule 9370 which
give rise to corresponding obligations that must be respec ted by
peacekeepers. This prohibition fur ther constitutes a grave breach71 and
as a violation of Common Article 3 – a serious violation of the laws or
customs of war which are both war c rimes.72
The questions that then arise are amongst others: does all sexual
violence committed in the context of an armed con ict amount to a war
crime? Furthermore, how does sexua l violence which is not expressly
mentioned as a grave breach or in Common Article 3 constitute
a war crime? The answers to these questions may be found in the
jurisprudence of the International Criminal Tribunal for the former
Yugoslavia (‘ICTY’). In Prosecutor v Kunarac, the tribunal reasoned
that the paucity of precedent in IHL requires judicial bodies to seek
recourse in international human r ights law and international crimi nal
68 Article 27 explicit ly states that ‘women shall be esp ecially protec ted against
any attack on their honou r, in particular against r ape, enforced prostitution or
any form of indecent assau lt’; Article 4A of the Geneva Convention IV set s out
that the protection of the convent ion is afforded to ‘protected persons’ with in
the meaning of the a rticle. The local populations that a re often the victims of
the peacekeepers’ se xual exploitation a nd abuse are likely to fa ll within the
protection of this convention b ased on the generous interpretation of t he ICTY
(Trial Chamber) Prose cutor v Delalic (16 November 1998) Case No IT-96-21-T
para 263.
69 Commonly referre d to as a ‘convention in miniatur e’ because the protect ions
encompassed in the ar ticle are the absolute mi nimum that each pa rty to a
conict, regard less of classication, must respect. Com mon Article 3 therefore
applies in both intern ational and internal a rmed conict s. The protection
against sexua l violence has been i nterpreted to be encompassed u nder the
headings of a) violence to life a nd person, in part icular, b) cruel t reatment
and torture, and b) outrages up on personal dig nity, in humiliating a nd
degrading tre atment. See for example Prosec utor v Miroslav Kvocka at 63 held
Common Article 3 pr ohibits rape; It is also noted that rape i s a crime agains t
Art 27 Geneva Convention I V, Art 76(1) Additional Protocol I and Art 4(2)(e)
Additional Protocol II.
70 Rule 93 in Jean-Mar ie Henckaerts and L ouise Doswald- Beck Customar y
International Huma nitarian Law vol I: Rules (2005) 32 4; Customary internationa l
law is applicable in both inter national and interna l armed conic ts. It is
evinced from state prac tice and opinio juris.
71 Grave breaches are the most eg regious violations of IH L that can only be
committed in inter national armed con icts. These bre aches are subject to
universal jur isdiction, meaning states are o bliged to bring alleged perpet rators
regardless of thei r nationality before t heir own court s. See Art 49 Genev a
Convention I; Art 50 Genev a Convention II; Art 129 Ge neva Convention III;
Art 146 Geneva Convention IV.
72 Marco Sassòli, A ntoine A Bouvier and Anne Q uintin ‘How Does L aw Protect
in War? Grave Breaches’, available at grave-
breaches> (accessed on 18 November 2018).
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16 AFRICAN YEARBOOK OF INTERNATIONAL HUMANITARIAN LAW
law for denitions to aid interpretation.73 The discussion turns to how
the rationale of Prosecutor v Kunarac applies to the situation at hand
and thus answers each question.
Irrefutably, the link between ar med conict and the alleged acts
of sexual violence by peacekeepers is v ital to establish because it
inuences whether the sexual offence of the perpetrator constitutes
a war crime or a domestic offence. Acknowledging, each case needs
to be decided on its own merits, a probable argument based on the
approach in Prosecutor v Kunarac is advanced on how this nexus can
be established.74 Essentially, the context of the armed conict should
be what enables the perpetrator to commit the offence.75 At thi s
point, it is accepted (as has been argued above) that IHL applies to the
peacekeepers and the prevaili ng circumstances.
As a starting point, the context of the armed conict ought to be
what enables the peacekeeper to commit sexual violence. It is argued
that ongoing conict in a state creates an environment wherein
sexual offences can be committed more easily with relative impunity.
Particularly so because of unequal power dynamics bet ween civilians
and peacekeepers who are often in uniform and bearing arms. The
inequality has an economic dimension in which the limited supply
of basic goods and the lack of income-generating opportunities leave
civilians v ulnerable to exploitation and abuse. Peacekeepers who are
perpetrators of such acts are taking advantage of this environment,
thus rendering their conduct sufciently associated with the conict.
Some scholars argue that the mere existence of armed conict
in and of itself is not enough nexus and that relationships between
peacekeepers and local civilians cannot be presumed to be inherently
coercive.76 There are additional factors li ke the perpetrator’s status; the
victim’s status; circumstances in which the offence was committed;
assistance of parties to the con ict in the commission of the offence; and
the link between the conduct and ofcial duties.77 To a certain extent
they are right; however, it is asserted in line with the jurisprudence
73 ICTY (Trial Judgement) Prosec utor v Kunarac (22 February 2001) Case No IT-96 -
23-T &I T-96 -23/ 1-T p ara 465 –4 97.
74 ICTY (Appea ls Chamber) Prosecut or v Kunarac (12 June 2002) Case No IT-96 -
23&IT-96-23/1-A (hereaf ter Kunarac appeal) para 59 outlined seve ral indicative
factors of whether an al leged offence is suf ciently related to the ar med
conict, thus bot h a violation of IHL and a war crime. T hese factors include the
fact that the vict im is a member of the opposing par ty; the fact that the act may
be said to serve the u ltimate goal of a military campaig n; and that the crime is
committed as par t of or in the context of the perpetrator’s ofcia l duties.
75 Burke op cit note 11 at 337.
76 Schomburg and Peter son ‘Genuine Consent to Se xual Violence under I nter-
national Crimi nal Law (2007) 101 American Journal of Inter national Law 138.
77 Ibid at 131.
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PEACEKEEPERS AND SEXUAL VIOLENCE 17
and rationale outlined and discussed above, that once nexus with the
armed conict is proved, then consent to sexual relations is negated.
The latter question, which was born out of the lack of express
mention of sexual violence and rape in either the grave breaches
or Common Article 3, is answered by an analysis of ad hoc tribunal
decisions, particula rly Prosecutor v Delalic. This decision set a ‘precedent
of sorts’ by characterising sexual violence and rape as acts of torture
when the requisite elements are met.78 Thus, these offences through
torture provisions may constitute a grave breach or a violation of
Common Article 3 which are war crimes for which a peacekeeper can
be liable.
Taking the argument a step fur ther, several decisions of the ad hoc
tribunals have characterised rape and other forms of sexua l violence
as acts of torture.79 The seriousness of rape and sexual violence is
such that these offences constituting acts of torture have also been
recognised by international human r ights bodies. The Inter-American
Commission in Fernando and Raquel v Peru found the rape of Raquel
by Peruvian soldiers to constitute torture in breach of Article 5 of
the American Convention of Human Rights.80 In Aydin v Turkey the
European Commission of Human R ights held that the cruel act of rape
a woman was subjected to in a police station amounted to torture in
breach of Article 3 of the European Convention on Human Rights.81
In the African region, the African Commission on Human Rights
in Equality Now and Ethiopian Women Lawyers Assoc iation (EWLA)
v The Federal Democratic Republic of Ethiopia found in favour of the
complainant stating in particular that rape constitutes a violation of
the prohibition against torture as provided in Article 5 of the Banjul
78 ICTY (Trial Ch amber) Prosecutor v Delalic (16 November 1998) Case No I T-
96-21-T para 496; See also note 74 para 185; ICTY (Trial Cha mber) Prosec utor
v Furundzija (10 December 1998) Case No IT-95-17/1-T paras 162 and 267
(hereaf ter the Furundzija Trial Chamber) – rape as torture, w itnessing rape may
also constitute tort ure; ICTY (Trial chamber) Prosecut or v Kvocka (2 November
2001) Case No IT-98-30/1-T (hereaf ter Kvocka Trial Chamber) para 144 – threats
to rape may constitute tortu re; ICTY (Appeals Chamber) Pro secutor v Furundzija
(21 July 2000) Case No I T-95-17/1-A (hereafter Furundzjia Appeal Chamber)
par as 11–114.
79 Kunarac Appeal Chamber p ar 185; Ibid Furundzija Trial Chamber paras 162
and 267 – rape as tortur e, witnessing rape may al so constitute tortu re; Ibid
Kvocka Trial Chamber par a 144 – threats to rape may constitute tor ture; Ibid
Furundzija Appeal Chamber para s 113–114.
80 Annual Report of t he Inter-American Com mission on Human Rig hts, Report
No. 5/96, Case No. 10.970, 1 March 1996.
81 Opinion of the Europ ean Commission Human Rig hts, 7 March 1996, reprinted
in the European C ourt of Human Rights ECHR 1997 VI, p 1937 para 86.
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18 AFRICAN YEARBOOK OF INTERNATIONAL HUMANITARIAN LAW
Char ter.82 T he African Commission has also noted in the inter-
session reports that sexual v iolence and rape are used as forms of
torture especially in conict situations in Af rica.83 Based on the above
decisions of international judicial bodies, a persuasive argument can
be advanced for the existence of a rule of CIL that recognises rape and
other forms of sexual violence as acts of torture. The discussion turns
to how the above established conceptual framework applies in South
Africa to clar ify for what crime a peacekeeper can be held accountable.
4 PROBLEMS WITH THE IMPLEMENTATION OF SOUTH
AFRICAN LAW
The supremacy of the Constitution is established in sec tion 2. This
section furt her mandates that ‘law or conduct inconsistent with it
is invalid, and obligations imposed by it must be fullled.’ Section
231 which deals with international law, binds South Africa to
international agreements that were binding when the Constitution
took effect.84 By virtue of this section, South Africa is bound by the
1949 Geneva Conventions and the 1977 Additional Protocols which
it acceded to before 1996.85 In addition, the relevant portions of the
Geneva Conventions and their Additional Protocols form part of CIL
by operation of section 232 of the Constitution unless it is inconsistent
with the Constitution itself or an Act of Parliament.
However, South Africa’s obligations in terms of section 231(4)
of the Constitution and provisions of the Geneva Conventions
relating to the enactment of legislation on grave breaches and the
suppression of other violations,86 were fullled by the enact ment of the
Implementation of the Geneva Conventions Act 8 of 2012 (the Geneva
82 Commission 341/2007 para s 120–121; Additionally, the Afr ican Commission
in general comment 4 states th at sexual violence and rape constit ute torture in
violation of Art 5 of the A frican Charter. See Genera l Comment No 4 on Art 5
of the Africa n Charter on Human a nd Peoples’ Rights (adopted 27 June 1981
entered into force 21 October 1986) 1520 UN TS 217 paras 57–58.
83 Inter-Session Activit y Report (November 2 015 – April 2016) and Annual
Situation of the Torture and I ll-Treatment in Africa n Report, Afr ican Com-
mission on Human and Peoples’ R ights 11.
84 Section 231(5) of the Constitution.
85 The Geneva Conventions were rat ied on 31 March 1952 and the Additional
Protocols 21/11/95; ICRC Press release ‘South Af rica: law against wa r crimes
adopted’, available at s://www.icrc.org/eng/re sources/docume nts/news-
release/2012/south-afr ica-news-2012-07-24.htm > (accessed on 15 Sep tem ber
2018).
86 Article 49 Geneva C onvention I; Article 50 Geneva Convention II; Ar ticle 129
Geneva Convention III; A rticle 146 Geneva Convention IV.
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PEACEKEEPERS AND SEXUAL VIOLENCE 19
Conventions Act).87 The Geneva Conventions Act establishes two
categories of offences. Section 5 of the Act criminalises grave breaches
of the Geneva Conventions and Additional Protocol I,88 which are
breaches referred to in Art icle 50 of the First Convention, Article 51 of
the Second Convention, Article 130 of the Third Convention, Article
147 of the Fourth Convention, and Articles 11 or 85 of Additional
Protocol I.89 Such breaches can therefore only be committed in an
international armed conict.90 In addition, section 5(1) read with
section 7(1) provides for the exercise of universal jur isdiction over the
above stated grave breaches.
The Act also sets out that ‘any person who within the Republic
contravenes or fails to comply with a provision of the Conventions
not covered by subsection (2), is guilty of an offence’.91 This ‘catch-
all’ category which mirrors serious v iolation of the laws or customs
of war is important because it includes breaches of Common Ar ticle
3 and the relevant provisions of Additional Protocol II which apply
to non-international armed conicts. This ‘catch-all’ category creates
a war crimes regime applicable to internal con icts.92 These offences,
however, are not subject to universal jurisdiction because section 5(3)
in relation to the ‘catch-all’ category states specically that any person
‘within the Republic’ is gui lty of an offence.
Regarding forms of liability, the Geneva Conventions Act provides
for criminal responsibility for individuals for war crimes through
two avenues. First, section 5 provides for liability by way of direct
perpetration of the breaches of the Conventions. Secondly, the doctrine
of command responsibility which holds a militar y superior ofcer
liable for breaches committed by subordinates when certain elements
are met, is incorporated into South Africa n law. The signicance of this
is that the doctrine is a ‘unique construction of international criminal
jurisprudence’ of which there is no domestic equivalent.93
From the above, it is clear that a substantial part of the body of I HL
is incorporated into South Africa law. Most notably for this contribution
is the establishment of domestic offences for grave breaches and the
‘catch-all’ category which includes violations of Common Article 3.
The signicance of this is that rape and more broadly, sexual violence,
87 8 of 2012.
88 Section 5(1) of the Geneva Conventions Act.
89 Ibid at s 5(2).
90 Because the aforeme ntioned provisions only apply in inter national armed
conicts.
91 Section 5 (2) of the Geneva C onventions Act.
92 Institute for Secu rity Studies ‘ The Geneva Conventions a nd South Africa n
Law’ ISS Policy Br ief 43 June 2013, 2.
93 Ibid at 3.
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20 AFRICAN YEARBOOK OF INTERNATIONAL HUMANITARIAN LAW
constitute both grave breaches and violations of Common Article
3. Both these categories of offences constitute war crimes. Section 7
which covers jurisdiction and status as alluded to above, provides that
any court in South Africa may exercise jurisdiction over an offence
under this Act.94 The denition of court is set out in section 1 of the
Act and reads:
court –
(a) means a provincial d ivision of the High Court or a cour t of similar
status; and
(b) in the case of a membe r of the South African Nationa l Defence Force
who contravenes or fails to comply with thi s Act while in service or
on duty, includes a military cour t contemplated in section 1 of the
Military Di scipline Supplementary Measures Act, 1999 …95
This makes it possible for a peacekeeper who commits sexual v iolence
as prohibited by IHL to be tried by either a High Court (or court of
similar status) or a military court.96
Bringing the arg ument together, the conduct of South African
peacekeepers servi ng on a UN peacekeeping operation falls w ithin the
ambit of the Geneva Conventions Act.97 Their conduct, in terms of the
war crime regime in section 5 can amount to grave breaches or fall
within the ‘catch-all’ provision for other violations. Sexual v iolence
and rape as violations of IHL is the specic conduct that this article
has addressed. As a consequence of the lack of express mention in the
grave breach regime or Common Article 3, it has been shown how
by interpretation of the decisions of international judicial bodies that
these offences can amount to acts of tortu re, thus constituting a grave
breach and violation of Common Article 3 – which both constitute
war crimes.
In an application of the above understanding, domestic legislation
can be examined to determine whether the prohibited conduct in
question is criminalised in South Africa, to which a conclusion can
be drawn that the Sexua l Offences and Related Matters Amendment
94 Section 7(1) of the Geneva Conventions Act.
95 Ibid at s 1.
96 This is in line w ith s 54 of the Defence Act 4 4 of 1957 (which forms part of
the First Schedule wh ich is still in operation) which states that not hing in this
Code affect s the jurisdiction of any civil cou rt in the Republic to try a person
for any offence withi n its jurisdiction; Further s 1 of t he Military Disciplinar y
Supplementary Measu res Act, 1999 read with ss 6 and 9(3) set out the Court of
the Senior Milita ry Judge to hear charges of int er alia rape committed outside
the Republic. A quorum of t hree senior military judges is requ ired.
97 Section 5 refers to a ny person withi n or outside the Republic in refer ence
to grave breaches and any cit izen of the Republic for other v iolations. Both
references would apply to member s of the SANDF serving as peac ekeepers.
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PEACEKEEPERS AND SEXUAL VIOLENCE 21
Act (Sexual Offences Act) effectively criminalises sexual violence and
rape.98 In terms of terminology in South Africa the crime is sexual
assault, not sexual violence. However, the essence of the prohibited
conduct (of both crimes) corresponds with the interpretations of the
same conduct at an international level. The Act extends its application
to offences committed outside the Republic as well.99 Thus, peacekeepers
can be charged for the ‘ordinary cr ime’ of sexual assault or rape. South
Africa would still have effectively discharged of its twofold obligation
which in this case overlaps – to exercise jurisdiction over perpetrators
of grave breaches and peacekeepers who commit crimes.
There is no rule in international law which obligates states to
prosecute acts which can be characterised as war cr imes solely on
the basis of IHL, completely setting aside any classications of their
national criminal law.100 While such prosecution on the basis of
ordinary criminal law can be efcient, it argued that it is not ideal
because the specic war time context in which these crimes occur
is negated, consequently not reecting the gravity of the cr ime.101
Also, while not the case in this article, national criminal laws do not
generally match all specic aspects of crimes under IHL.102 Be that
as it may, studies have shown that grave breaches can and are often
prosecuted as ordinary crimes.103 This nding did not detract from
the argument made for the recognition of sexua l violence (read sexual
assault in the South African context) and rape as acts of torture – as
a rule of customary international law thus forming part of the law of
the Republic.104
The exible approach of the Constitutional Court a nd the Supreme
Court of Appeal to recogni se the existence of a customary rule such t hat
decisions of international judicial bodies have been sufcient without
substantiation of state practice and opinio juris is relied on.105 A s shown
98 Sections 3 and 5 of the Cr iminal L aw (Sexual Offenc es and Related Matters)
Amendment Act 32 of 2007.
99 Ibid at s 61.
100 ICTY (Tri al Chamber) Prosecutor v Hadzihasanov ic (15 March 2006 ) Case No IT-
01-47-T para 260.
101 Ward Ferdinanadusse ‘ The Prosecut ion of Grave Breaches in National Cou rts’
(2009) 7 Journal of Inter national Criminal Justice 723730 –731.
102 Ibid; For example, it may be di fcult to nd adequate prov isions in national
crimina l law for the prosecution of the g rave breach of wilf ully depriv ing a
prisoner of war of the r ights to fair and regular tria l in terms of Art 130 of the
Geneva Convention III or t he perdious use of the Red Cross emblem in ter ms
of Art 85(3)(f) of Additional P rotocol I.
103 Ferdinanadus se (2009) Journal of International Crimin al Justice 730.
104 Section 232 of the C onstitution.
105 Koyabe v Minister of Home Affairs 2 010 (4) SA 327 (CC) para 41; The Constitutional
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22 AFRICAN YEARBOOK OF INTERNATIONAL HUMANITARIAN LAW
above, several international judicial bodies such as the ICTY, the
European Commission on Human R ights and the African Commission
on Human Rights have characterised rape and other forms of sexual
violence as acts of torture. It is arg ued that this approach facilitates the
prosecution of sexual violence as a war crime in South Afr ica.
The signicance of this recognition is better understood by an
illustration: A South Afr ican peacekeeper serving on a UN p eacekeeping
operation commits an alleged act of either sexual violence or rape
which are violations of IHL. In exercising criminal jurisdiction over
the individual peacekeeper, the troop-contributing state establishes
that the peacekeeper’s conduct amounts to either sexual assau lt or rape
within the meaning of the Sexual Offences Act. However, with the
recognition of sexual assau lt and rape as torture, the peacekeeper can be
charged with a war crime as a grave breach offence in terms of section
5(3) of the Geneva Conventions Act (for conicts of an international
character) or section 5(4) which is the ‘catch-all’ provision of which a
violation of Common Article 3 (applicable in both international and
internal conicts) can be cha rged.106 This avenue reects the gravit y of
the crimes committed.
It is prudent to note that a counterargument based on efciency
can be raised to this approach. I f the ordinary crime reects t he essence
of the offence, it can yield an effective prosecution with fewer factors
to prove. Where time, resources and expert ise are limited, efciency is
crucial. Then, both t he proceedings and the judgment can reect on
the international background and context of the case. While this is a
desirable alternative, it is reiterated that this approach does not reect
the gravity of a war crime as it does not match all the specics of the
crime under IHL.
Litigation Centre v National D irector of Public Prosec ution [2012] 3 All SA 198
(GNP) para 80.
106 A necessary pr esumption is made that the re is a nexus bet ween the sexual
violence and rape in question a nd the armed con ict. A court dea ling with
such a matter before it would have to make a dete rmination whether t he
conduct in question is closely l inked to the armed conict as a whole to fu ll
the nexus requirement.
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PEACEKEEPERS AND SEXUAL VIOLENCE 23
5 CONCLUDING REMARKS
If the rule of law means a nything at all, it mean s no one, including
peacekeepers, is above the law.107
The UN Secretary-General has emphasised t he elimination of sexual
violence against women as ‘one of the most serious challenges of our
ti mes .’108 Rape, as the most serious manifestation of sexual violence,
has in all contexts been characterised by a cultu re of impunity which
has also been evident even with U N peacekeepers as perpetrators.109 To
change this cultu re, clarify ing (and improving where necessary) the
legislative framework on this matter is essential.110 The purpose of this
article was to determine whether a lacuna in the existing law causes
the impunity and hence lack of accountability of peacekeepers who
commit sexual violence.
To accomplish this purpose, the article sought to clarify an
applicable legal framework. It is not presumed that the clarication of
an applicable legal framework is the sole method to eliminate impunity.
However, the purpose of the article is premised on the understanding
that law entrenches ideas that may serve as a catalyst for social
change.111 This approach is supported by the recognition of ‘the power
of law’ as an essential tool to end violence against women.112 From
this, the importance of a legal framework that effectively prohibits
and criminalises all forms of sexua l violence to ensure accountability
through prosecution and punishment of per petrators regardless of
their station in life speaks for itself. The article sought to determine
a clear legal regime applicable to UN peacekeepers based on IHL
obligations as a possible means to ensure accountability for sexual
violence committed while deployed on a UN peacekeeping operation.
107 UN Secur ity Council ‘ The rule of law and tr ansitional justice i n conict
and post-conict s ocieties: repor t of the Secretar y-General’ 2 3 August 2004 ,
S/2004/616, available at /docid/45069c434.html>
(accessed on 19 June 2017) para 33.
108 UN ‘In- depth study on all for ms of violence against women: Re port of the
Secretar y-General’ A/61/122/Add.1 (2006) para 2.
109 Maria Er ikkson Dening Rape (2010) 4 .
110 Report of the Secr etary Gener al, Women and Peace and Secu rity, UN Doc
S/2009/465, 16 September 2009, para 4 2; UNSC Resolution on Women, Peace
and Securit y, UN Doc S/RES/1888, 30 S eptember 2009 para 6.
111 Erikk son op cit note 109 at 10.
112 Deputy Sec retary Gener al’s remarks to the Joint Dialog ue of the Commission
on the Status of Women and the Comm ission on Crime Preve ntion and
Criminal Ju stice, 53rd session, CEDAW, New York, 4th March 2009, available
at 09/dsgsm445.doc.htm> (accessed on 24
November 2018).
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24 AFRICAN YEARBOOK OF INTERNATIONAL HUMANITARIAN LAW
South Africa, whose greatest asset lies i n its power of example was used
to gain practical insight.
There is a complex relationship among the branches of international
and national law applicable when a peacekeeper commits a crime while
serving on a UN peacekeeping operation. This article has shown, at
least in the South Africa n context, that there is no gap in the lex lata. It
can, therefore, be said that the presence of relevant law regulati ng this
problem does not eliminate the impunity of the per petrators. However,
other states can draw from this exa mple by ensuring their national
legislation applies extraterritorially and effectively prohibits and
criminal ises sexual offences. South Afr ica has comprehensive and often
innovative legislation on its statute books, for instance, the Geneva
Conventions Act. The existence of the law on paper is insufcient to
address the concerns that caused its enactment. It may lull the public
into a false sense of security that the problem is being addressed. No
real success can be expected without the adequate implementation
of such legislation. Further, the effectiveness of legislation depends
on the state’s enforcement.113 South Africa has demonstrated its
commitment to Geneva Law through an act of domestication. This is
indeed welcome. However, the state must effectively implement this
legislation to ensure that perpetrators, even if they are peacekeepers,
are not above the law.
113 Nicolas King, Hen nie Strydom and Fra ncois Retief (eds) Environmental
Management in South Afr ica 3ed (2018) 232.
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