Redeeming Peacekeeping: Using the U.N. Security Council to Internationalize the U.S. Military Ban On Prostitution Patronage

• Author: Commander Patrick Joseph Gibbons
• Pages: 03

MILITARY LAW REVIEW

Volume 200 Summer 2009

REDEEMING PEACEKEEPING:

USING THE U.N. SECURITY COUNCIL TO INTERNATIONALIZE THE U.S. MILITARY BAN ON PROSTITUTION PATRONAGE

COMMANDER PATRICK JOSEPH GIBBONS*

I. Introduction

At the beginning of 2005, roughly 250,000 American troops were deployed in almost 130 nations worldwide; if servicemembers stationed at permanent overseas garrisons in Germany, Japan, and elsewhere were added, the number of personnel abroad was on the order of 350,000.1 An important benefit of having those troops forward-deployed is that they create a favorable impression of the United States through their commendable behavior. Activities such as patronage of prostitutes and establishments that facilitate human trafficking are detrimental to that image. While the frequency of military prostitution patronage might be gauged from the number and proximity of brothels in the area of a military base, the Department of Defense (DoD) recently criminalized prostitution patronage as an offense under the Uniform Code of Military Justice (UCMJ). The new policy was a step taken to reduce the demand for victims of human trafficking in accordance with international treaty commitments, and to avoid the embarrassing scandal of U.S. troops

participating in human rights violations in the far corners of the world to which they carry the flag.

The United Nations (U.N.) and North Atlantic Treaty Organization (NATO), facing reports of forced prostitutes exploited by peacekeepers deployed under their banners, have struggled to prevent embarrassing recurrences. Peacekeeper use of prostitutes undermines the peacekeeping mission by flouting the rule of law, repeating the violations of the trafficking victims' human rights, and channeling cash to sources of the instability they are deployed to remedy. But compared to the United States, international organizations are hobbled in their attempts to enforce discipline in that they have no jurisdiction over the troops at their disposal. There were 83,000 uniformed servicemembers from 119 nations deployed supporting seventeen different peacekeeping missions around the world at the end of 2007.2 Troop-contributing States retain a sovereign right to discipline themselves, leaving international organizations relatively powerless to prevent incidents of military misconduct that tarnish their reputations. That disability could be remedied by appropriate U.N. Security Council action.

Because the authority to set and enforce standards of conduct for troops currently resides with the sending States, the United States should introduce a Security Council resolution under U.N. Charter Chapter VII requiring contributor States to prohibit prostitution patronage by their armed forces. Chapter VII empowers the Security Council to bind Member States to act according to its requirements when it determines that a threat to international peace and security exists. Recent Security Council resolutions on terrorism and the proliferation of weapons of mass destruction have set precedent for the Security Council's power to require legislation by Members to combat general phenomena threatening the peace, rather than specific actors or transgressor States. Human trafficking is sufficiently destabilizing that Chapter VII action to prevent peacekeeper support for it is justified. Furthermore, a Resolution setting standards for peacekeepers would be an important step toward Security Council leadership of peacekeeping missions envisioned by the U.N. Charter but abdicated in practice.

Part II of this article begins with a survey of human trafficking generally before turning to its manifestation as sexual slavery. That will

include a discussion of how military patronage of prostitutes creates demand for trafficked women and affects security. The article will then review international law related to trafficking in persons, and U.S. implementation of it in Part III. This section will highlight the current relative powerlessness of international organizations to undertake an enforceable abolitionist policy such as that adopted by the United States. Part IV will then turn to the scope of Security Council authority, both as the U.N. Charter provides for it and as the Council has chosen to exercise it. Finally, it will conclude in Part V by arguing that the United States should introduce a Security Council resolution prohibiting peacekeeper prostitution patronage, drawing on the analysis of recent Security Council resolutions to remedy the institutional disabilities previously discussed. A Chapter VII resolution would require troop-contributing States to enforce prescribed norms of conduct, forcing those States to do what the U.N. itself cannot. This argument will be made, however, recognizing that there are significant political challenges to successful passage of such a resolution.

Before outlining the problem of trafficking in persons, however, some important aspects of this problem should be noted as beyond this study's scope. First, because this article proposes a course of action to give further effect to an existing U.S. policy on trafficking and prostitution, it accepts as a given that prostitution is a social ill. It therefore will not delve into the debate among activists as to whether the interests of prostitutes are better served by legalization or prohibition. Second, because this article deals with penalizing individual misconduct, this article will not discuss procurement-related issues. Although U.S. policy guidance deals extensively with regulating conduct of contractor employees, those provisions do not apply directly to the individual servicemember.

II. Human Trafficking & Military Culpability

Slavery is a practice universally condemned and outlawed as jus cogens. Yet it exists today still, in nearly all parts of the world. The traffic in humans for purposes of exploiting coerced, unpaid labor feeds organized crime.3 With a relatively low cost and high return,4 it is now

estimated to be the third most profitable international criminal enterprise, after arms and drugs.5 Its destruction is a goal the international community often announces, but abolition has proven difficult to achieve.

The common denominator in slavery-what makes a slave a slave- is the use of fraud, force, or other coercion to exploit labor for a profit.6

The International Labor Organization estimates that there are 12.3 million people enslaved globally.7 A 2006 U.S.-sponsored research project approximated the number of persons trafficked across borders at 800,000, plus millions more trafficked within transnational borders.8

Eighty percent of international trafficking victims are female, and fifty percent are underage; the majority of these are trafficked for commercial sexual exploitation.9 From January 2000 to June 2003, over five thousand women were trafficked into southeast Europe.10 Although discussions of trafficking of women and children often center on prostitution, these groups also form the majority of victims trafficked for non-sexual labor.11

While trafficking is sometimes confused with migration issues,12 the push/pull factors that drive voluntary migration nevertheless influence the slave trade as well. The "pushes" include poverty, instability, lack of opportunity, the low status of females in some societies, and armed conflict.13 The "pull" is the demand for cheap labor, whatever the industry: agriculture, textiles and garments, or sexual services.14 While

globalization contributes to demand, the U.N. cautions against overlooking the impact of local demand.15

Slavery takes many forms. It includes practices such as debt bondage and involuntary servitude, commercial sexual exploitation, and exploitative labor conditions in private homes.16 Children are pressed into service as child soldiers, as well as into combat support roles as camp cooks, couriers, and porters.17 Authorities have found men and boys from Burma, Thailand, Ghana, and the Ukraine working as forced labor on the high seas on commercial fishing vessels.18 Women have been trafficked into Lebanon and the Gulf States to work as domestics and prostitutes;19 Lebanon has also been the destination for children trafficked to beg on the streets.20 Depending on the culture and conditions, women are trafficked as forced brides to settle a debt, relieve their families' poverty, or display the groom's wealth.21 Whatever its manifestation, violence and abuse underpin trafficking.22

Victims are brought into the traffickers' web by various means. Some begin as voluntary migrants; a favored tactic of Japanese organized crime, the Yakuza, is to prey on foreign workers who have overstayed or strayed beyond the limits of their work visas.23 Traffickers are creative and ruthless in developing means to entrap their victims.24 They often promise employment, education, or even marriage to lure their victims

into their network.25 Once entrapped, a victim may be sold or transferred several times.26

In many countries with large populations of guest workers, trafficked victims initially were taken in with deceptive recruiting promises, only to find out that the worker-sponsorship program placed them in situations of indentured or involuntary servitude.27 A U.N. study of three Gulf States provides a good example of the sponsorship system. A worker in a poor country, attracted by the prospect of better pay, pays a fee to a recruiting agency in the sending country.28 An agency in the receiving country pays for a one-way ticket and processes all immigration and labor documents such as visas and work permits at the expense of the prospective employer, who will be the worker's sponsor.29

Once the worker arrives in the receiving country, he is presented with an employment contract, often in the language of the receiving country.30 Regardless of whether he had previously signed a contract in the sending country, or whether the terms match, or even if he can understand the...