Failure to Protect: Limitations of the Legal Framework in Preventing Sexual Exploitation and Abuse
by Taryn Kurtanich Spring 2019
In the #MeToo era, the international aid sector must confront the power dynamics in international assistance and critically evaluate the present legal structures that perpetuate sexual exploitation and abuse of vulnerable populations. The global nature of the sector complicates efforts to hold perpetrators accountable, as the legal regimes often fail to address these violations of human dignity. Sexual exploitation and abuse, as a form of sexual and gender-based violence, is addressed through international law, political commitments, and domestic legislation. However, the impact of the legal framework is muted by flawed and incomplete implementation of the laws, leaving survivors with limited or no access to justice. To meet these needs, systems that focus on the survivors will orient the aid sector toward accountability to prevent sexual exploitation and abuse and protect vulnerable populations.
The #MeToo movement has sparked a call for action to combat sexual violence. In this moment, the international aid sector had to confront its own culture, power structures, and gender dynamics as accounts of sexual exploitation and abuse in the international aid community emerged. These allegations are not new, nor are efforts to address them. But sexual exploitation and abuse persist, driven by the power imbalances in the aid sector and systemic gender inequality. Vulnerable people within vulnerable communities have been raped, forced to exchange sex for food or medical services or otherwise extorted and harassed or abused by aid workers who are meant to protect and restore these communities. Sexual exploitation and abuse in the aid sector undermine the entire premise of international development and humanitarian assistance. The most recent allegations, from Haiti, Chad, Liberia, Bangladesh, Syria, and South Sudan, have reinvigorated efforts by survivors, governments, multilaterals, and non-governmental organizations to address the institutional structures which permit sexual exploitation and abuse. The international laws surrounding these issues of sexual and gender-based violence provide protections for vulnerable populations, but the flawed implementation and limited incorporation in domestic laws limit their effectiveness.
Sexual exploitation and abuse (SEA) is a form of sexual and gender-based violence (SGBV) rooted in the power dynamics of the aid sector. Defined by the United Nations (UN) Secretary-General Bulletin on Protection from SEA, sexual exploitation refers to, “any actual or attempted abuse of a position of vulnerability, differential power, or trust, for sexual purposes, including, but not limited to, profiting monetarily, socially or politically from the sexual exploitation of another1”. Sexual abuse means, “actual or threatened physical intrusion of a sexual nature, whether by force or under unequal or coercive conditions2”.Reports from Bosnia and Cambodia, in the 1990s, and West Africa, in 2002, revealed the pervasive nature of SEA in humanitarian operations3. Although the nature of SEA makes it difficult to provide statistics or measure prevalence due to massive underreporting of cases, surveys found that these practices were widespread. The West Africa study found that the majority of affected children knew at least one other sexually exploited or abused child4. During the conflict in Syria, SEA was so prolific that communities assumed that those who accessed aid had to exchange sex for the assistance5. The most recent allegations of SEA provide examples of the broad range of violations that SEA manifests as, including rape, child exploitation, sex trafficking, extortion of sexual acts in exchange for aid, and identified major inadequacies in the framework designed to address SEA. In common use, SEA focuses on acts perpetrated by the aid community, while SGBV captures a wider range of actors, actions, and structures as enumerated in international law6. At the international level, international treaties, resolutions, and customary international law address sexual and gender-based violence. Additional resolutions provide standards on SEA and abuse, including obligations for states, requirements for staff, and organizational standards. Domestic laws, including criminal, civil and employment laws, overlay this structure and incorporate international law to some degree. The implementation of the international legal protections provides some safeguards through legal remedies as SGBV is incorporated as criminal or civil offenses in domestic laws. The domestic legal regimes can also limit efforts to addressing SEA, with laws or procedures that punish survivors or that do not address SGBV as a crime or civil offense or do so with severe gaps.
The international standards and responsibilities for nations regarding SGBV have been established primarily through resolutions, treaties and customary international law. Several international instruments incorporate obligations on SGBV. The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), ratified by 187 of the 194 UN member-states, established the foundation of SGBV in international law, obligating states to, “adopt appropriate legislative and other measures, including sanctions where appropriate, prohibiting all discrimination against women7.”Established by the Convention, the Committee on the Elimination of Discrimination against Women affirms in a non-binding recommendation that, “violence against women and girls is a form of discrimination prohibited by the Convention and is a violation of human rights8.” Although General Assembly Resolutions are non-binding international law, the Declaration on the Elimination of Violence Against Women further defines violence against women and the specific acts involved. It also obligates states to prevent, investigate, and address SGBV committed by state and non-state actors in their respective nations9, 10. In armed conflicts, international humanitarian law, through the Geneva Convention (IV), also prohibits sexual violence and classifies rape, forced prostitution, and indecent assault as war crimes11, 12.The International Criminal Court Statute affirms that SGBV constitutes a violation of the Geneva Convention (IV) Article 313.
Domestic laws on SGBV and SEA, across the world, vary in content and strength, resulting in additional complexities for implementing SEA protections. At least 144 countries have established some form of law on SGBV, although the laws are not necessarily implemented nor in accordance with international law14. In the past decade, 35 countries implemented laws addressing sexual harassment, often spurred by the #MeToo movement15.In 2018, Kenya passed its first law on domestic violence and Iraq and Afghanistan established criminal penalties for sexual harassment16. However, serious structural gaps remain:49 countries do not have laws prohibiting domestic violence, 57 offer no protections from sexual violence in the workplace and 67 countries provide no criminal or civil remedies for survivors17. The uneven incorporation of international law into the national context prevents the full realization of protections for vulnerable people as the enforcement mechanisms are usually dependent on domestic implementation.
SEA, as a specific form of SGBV, has particular regulations and commitments in the international space. Although no binding international legal agreements specifically govern SEA, a series of resolutions, principles and political commitments have developed standards and operating procedures on SEA. In 2003, the UN Secretary-General issued requirements to address SEA, establishing six principles for the responsibility and conduct of all UN military and civilian staff18. The Inter-Agency Standing Committee on Protection from SEA institutionalized these principles and operationalizes the standards19. International NGOs, such as Oxfam and IFRC, as well as small, local NGOs, incorporated these principles into their own codes of conduct and adjusted them to the cultural contexts that they operate in, as well. As a reflection of international law and principles, United States domestic law requires that government humanitarian assistance must be implemented consistent with the UN Secretary-General Bulletin. Other donor governments have additional and overlapping requirements for partners that duplicate systems and can overburden the partners, refocusing efforts to address the requests of the donors, rather than the needs of the survivor. To improve coordination and implementation of SEA protections, donor governments, including the U.S., U.K., ECHO, Japan, and Mexico, agreed to a set of political commitments designed to standardize expectations and requirements for humanitarian operations and development20.
Despite the plethora of laws and regulations that obligate states and organizations to protect populations from SEA, the abuse continues. The current international framework lacks accountability for SEA, which creates real or perceived impunity for these acts. Although international law obligates states to investigate SGBV, most cases of SEA remain unresolved as both international and local mechanisms are inadequate to address aid personnel who commit acts of SGBV. Aid workers with the UN possess functional immunity under international law, as the Convention on the Privileges and Immunities of the United Nations grants UN staff immunity from legal proceedings, except those that are waived21. In the current system, neither states nor the UN waive the immunities to permit investigations of SEA, because the current structure focuses on liability reduction rather than accountability. Whether from international organizations, governments or NGOs, aid workers are often expatriate staff. One mechanism utilized to hold expatriates accountable would be the application of domestic laws related to sexual exploitation, extraterritorially, as seen in the United States PROTECT Act. Under the PROTECT Act, United States citizens can be prosecuted for United States citizens engaging in child sexual exploitation abroad, outside of the traditional jurisdiction of U.S. courts22. However, this type of legislation is rare and investigations and prosecutions rarely happen in the perpetrators’ home countries, and the survivors have no access to other justice mechanisms.
The international legal framework designed to prevent and address SGBV and SEA is insufficient to protect vulnerable populations or to hold perpetrators accountable. The slow and uneven implementation of the obligations outlined in international treaties and commitments leave survivors to suffer without redress. Vulnerable populations lack access to domestic justice or international resolution mechanisms due to the fragmented nature of the aid sector that the international system fails to address. The full incorporation of the commitments and protections for vulnerable populations into domestic laws is the first critical step to holding those that commit these abuses accountable whether they are expatriates or national staff. International commitments require investigations, protections and accountability for instances of SGBV, but there is a clear gap between those high-level commitments and domestic enforcement, often due to systemic gender inequalities, lack of political will and governmental failures. The international and diverse nature of the aid sector makes combatting SEA within it challenging; however, the very nature of the work requires it and proper legal protections can facilitate it.
United Nations Secretary-General Bulletin, ST/SGB/2003/13 (2003).
United Nations Secretary-General, A/59/710.
United Nations High Commissioner for Refugees (UNHCR) and Save the Children, (2002).
James Landale & Vinnie O'Dowd, Syria conflict: Women 'sexually exploited in return for aid' BBC News 2018), https://www.bbc.com/news/world-middle-east-43206297.
Committee on the Elimination of All Forms of Discrimination Against Women, CEDAW/C/GC/30.
United Nations General Assembly, A/RES/48/104.
Human Rights Watch, (2000).
International Committee of the Red Cross.
Geneva Convention IV Relative to the Protection of Civilian Persons in Time of War, (1949).
The World Bank Group, (2019).
Inter-Agency Standing Committee (2014).
Commitments made by donors, in 2018, to tackle sexual exploitation and abuse and sexual harassment in the international aid sector.
United Nations, (1946).
PROTECT Law of 2003, PL 108-21 (2003).
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3 (United Nations Secretary-General, A/59/710).
6 Committee on the Elimination of All Forms of Discrimination against Women, CEDAW/C/GC/30.
4 (UNHCR & Save the Children, 2002).
13 International Committee of the Red Cross.
14 The World Bank Group (2019).
19 Inter-Agency Standing Committee, (2014).
20 Commitments made by donors to tackle sexual exploitation and abuse and sexual harassment in the international aid sector, 2018.
21 United Nations (1946).
22 PROTECT Law of 2003, PL 108–21).
1 United Nations Secretary-General Bulletin (2003).
5 Landale & O'Dowd, (2018).
7 Convention on the Elimination of all Forms of Discrimination Against Women.
8 Committee on the Elimination of All Forms of Discrimination against Women, CEDAW/C/GC/30).
9 (United Nations General Assembly, A/RES/48/104.
10 Human Rights Watch, (2000).
11 International Committee of the Red Cross.
12 Geneva Convention IV.
18 United Nations Secretary-General Bulletin, ST/SGB/2003/13.
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