This article traces the historical development of the term “genocide” and discusses how it evolved from a post-World War II concept into a key component of international criminal law. Dr. O’Brien outlines some of the legal challenges that attend several of the key terms in the generally accepted definition of genocide: ‘destroy’, ‘in part’, ‘groups’, ‘intent’, and so on. She then concludes with an important and politically nuanced point essential to understanding the politics and afterlife of the Rwanda genocide – the weight of the “g” word.
Allegations and confirmed cases of misconduct by peacekeeping personnel have been revealed by non-governmental organisations, the press and UN investigations. The majority of misconduct has fallen under the term 'sexual exploitation and abuse'. Sexual exploitation and abuse has encompassed rape, sex with minors, trafficking, prostitution-related conduct, sexual exploitation, and other sexual abuse. This article discusses accountability in international criminal law for such conduct, first exploring the development of gender-based crime in international criminal law. The core of this article consists of an examination of the applicable law under the Rome Statute of the International Criminal Court, to determine whether or not the provisions could be used to prosecute peacekeepers for the crimes of rape, sexual slavery, sexual exploitation, prostitution-related conduct, and trafficking. Real life examples of criminal conduct by peacekeeping personnel will be given to test the applicability of the Rome Statute provisions.
Since 2005, the United Nations has been undertaking investigations into allegations of sexual exploitation and abuse by peacekeeping personnel, and establishing new rules and regulations to help prevent this misconduct. However, the UN is not capable of conducting criminal prosecution to ensure accountability for criminal conduct by peacekeepers; states are. States have a responsibility under international law to criminalise violence against women such as sexual exploitation and abuse. Failure to do so is a violation of obligations to prevent, punish, and investigate acts of violence, and to provide remedy for violence perpetrated against women. At the level of customary law, states have an obligation to exercise due diligence to prevent harm committed by both state and private actors. There are several international and regional instruments, such as CEDAW, which obligate states to criminalise violence against women, whether directly or more generally. This obligation raises the question of the extraterritorial application of human rights to invoke state responsibility and ensure the protection of such rights during peacekeeping missions. The issue of the extraterritorial application of human rights is one of controversy, particularly as human rights engage state responsibility. The existence of extraterritorial application of human rights has been discussed in regional and international case law, the findings of which can be applied to peacekeeping operations. An examination of the case law such as Behrami and Saramati (European Court of Human Rights) demonstrates a lack of willingness to attribute state responsibility for the actions of peacekeepers. However, this paper argues that the specific circumstances of sexual exploitation and abuse (and certain other criminal misconduct), when applied through the interpretation of the case law, can be attributable to sending states, thus enabling states to be held responsible for failing to hold perpetrators criminally accountable for sexual exploitation and abuse.