1. INTRODUCCIÓN
1.6. OBJETIVOS
2.1.12. Estrategias educativas para el aprendizaje activo
Among the reported allegations of crimes by peacekeepers in Burundi, there are sexual
offences and one case of murder.222 It may be assumed that a certain percentage of the
misconduct was never reported, whether it constituted violations of international law or of
domestic legislation.223
217
Article 446 (3) of the Somali Penal Code.
218
Built on the concept of sovereignty, criminal jurisdiction follows the law of the state where a crime was committed. See Musselman GS (ed) Law of War Deskbook (International and Operational Law Department U.S. Army Charlottesville 2011) 198; Cahillane A ‘International Law, Sexual Violence and Peacekeepers’ 2010 (17) Irish Student Law Review 1-16, 15. The principle of territoriality is not an absolute principle to preclude from observing engagements under SOFA for instance. See PCIJ Collection of Judgments the Case of the S.S. "Lotus" (Publications of the Permanent Court of International Justice Series A -No.70 of 7 September 1927) 20.
219
Zappala S ‘Are Some Peacekeepers Better Than Others? UN Security Council Resolution 1497 (2003) and the ICC’ 2003 (1) Journal of International Criminal Justice 671-678, 673.
220
Para 47(b) of the Model Status of Forces Agreement (SOFA) UN. Doc. A/45/594 of 9 October 1990. No country has been willing to subject its military contingents to the jurisdiction of a foreign nation. See Defeis EF ‘U.N. Peacekeepers and Sexual Abuse and Exploitation: An End to Impunity’ 2008 (7) Washington University Global Studies Law Review 185-214, 206.
221
If not prosecuted back home, their immunity amounts to impunity with the effect of future repetition. See O’Brien M ‘The Ascension of Blue Beret Accountability: International Criminal Court Command and Superior Responsibility in Peace Operations’ 2010 (15) Journal of Conflict & Security Law 533–555, 553-554.
222
Supra 2.2.2.
223
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2.3.2.1 Rape
(a) Definition of rape
Burundian law defines rape as ‘any act of sexual penetration, whatever the nature of such an
act, committed by an adult person against another person without the consent of the latter’.224
The Burundian Criminal Code not only defines what is understood by the term ‘rape’, but also who the perpetrator or the victim of such a crime may be, the punishment incurred, and
aggravating circumstances.225 In Burundian criminal law, the crime of rape is established if its
material elements, unlawfulness, and the culpability of its perpetrator have been established. These elements will be discussed below in more depth.
(b) Definitional and Consent elements of rape
According to the Burundian criminal code, rape is an act of sexual penetration, regardless of its nature or the means used to perpetrate the act. It must be perpetrated against a person who did not give an informed consent. Thus any act of sexual penetration by an adult person against a person who has not celebrated his or her eighteenth birthday, even if such a person
has consented is regarded as rape.226 Rape is also committed in the circumstances indicated in
article 555 of the Burundian Penal Code, and the perpetrator may be male or female.227 The
224
Loi N°1 / 05 du 22 avril 2009 portant révision du code pénal burundais. This Code will be referred to as the Burundian Penal Code. Article 554 equates the minority of the victim to lack of consent. Therefore sex with a person below the age of 18 is considered rape even if such a person consented to the act.
225
Articles 554-562 or the Burundian Penal Code.
226
Article 554 of the Burundian Penal Code. This article deals specifically with sex with minors. The following articles then describe what acts between adults also constitute rape. The age of consent to sexual intercourse is 18 under Burundian Law.
227
Article 555 : Commet un viol, soit à l’aide de violences ou menaces graves ou par contrainte à l’encontre d’une personne, directement ou par l’intermédiaire d’un tiers, soit par surprise, par pression psychologique, soit à l’occasion d’un environnement coercitif, soit en abusant d’une personne qui, par le fait d’une maladie, par l’altération de ses facultés ou par toute autre cause accidentelle aurait perdu l’usage de ses sens ou en aurait été privé par quelques artifices, et même si la victime est l’époux de cette personne : 1°. Tout homme, quel que soit son âge, qui introduit son organe sexuel, même superficiellement dans celui d’une femme ou toute femme, quel que soit son âge, qui a obligé un homme à introduire, même superficiellement, son organe sexuel dans le sien ; 2°. Tout homme qui a fait pénétrer, même superficiellement, par la voie anale, la bouche ou tout autre orifice du corps d’une femme ou d’un homme son organe sexuel, toute autre partie du corps ou tout autre objet quelconque; 3°. Toute personne qui introduit, même superficiellement, toute autre partie du corps ou un objet quelconque dans le sexe féminin ; 4°. Toute personne qui oblige à un homme ou une femme de pénétrer, même superficiellement, son orifice anal, sa bouche par un organe sexuel ; Est puni de cinq ans à quinze ans de servitude pénale et d’une amende de cinquante mille francs à cent mille francs. (Below this author’s non official translation in English).
A rape is committed, either by means of violence or serious threats or by duress against a person, directly or through the intermediary of a third person, either by surprise, by psychological pressure, on the occasion of a coercive environment, either while abusing a person who, by the fact of an illness, by the change of his/her
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absence of consent is critical for the crime to be committed,228 and official capacity is not a
defence.229 Penetration is still an element of the crime but it is no longer limited to the
vagina.230 Penetration of the vagina, anus, or mouth whether by the male genital organ or by
an object or by any part of the body is sufficient.231 The actus reus of rape includes the action
of sexual intercourse and the circumstances in which such action occurred. The circumstances may be connected to the victim, to the perpetrator, or to the presence of the public. They all constitute aggravating facts that elevate the punishment incurred by the perpetrator if found
guilty.232 Rape against a person under the age of 18 is always considered to have been
committed with violence.233
The criminal act of rape has to fulfil the following requirements:
(1) The sexual penetration must be committed by means of a sexual organ, other body parts, and objects. The body parts concerned by penetration are the vagina, anus, mouth, and other
bodily orifices.234 When the vagina is the target to invade the victim’s body, the crime is
performed by the perpetrator’s penis, or by means of other parts of the body or objects. The
perpetrator can be a man or a woman.235 Resorting to the anus or mouth as the place to
perpetrate rape, the penetration is deemed to be by means of the male sexual organ.236
Otherwise, the act is not of a sexual character. This will be the case, for example, where the actor intended to inflict serious bodily harm. With respect to any other opening of the body, the means used must be the male sexual organ.
faculties or by all other accidental reasons would have lost the use of his/her senses or would have been deprived of suchby some artifices, and even though the victim is this person's spouse:
1. by any man, whatever his age, who introduces his sexual organ, even superficially into that of a woman or any woman, whatever her age, who obliged a man to introduce, even superficially, his sexual organ into hers; 2. by any man who did penetrate, even superficially, the anus, the mouth or any other opening of the body of a woman or a man with his sexual organ, or any other part of the body or any other any object;
3. by any person who introduces, even superficially, any other part of the body or any object in the woman’s sexual organ;
4. by any person who obliges a man or a woman to penetrate, even superficially, his/her anal opening, his/her mouth by a sexual organ;
Rape is punished by five years to fifteen years of penal servitude and a fine worth fifty thousand francs to hundred thousand francs.
228
Articles 554 and 555 combined.
229
Article 560 of the Burundian Penal Code.
230
Penetration of anus and mouth has been added.
231
Article 555 of the Burundian Penal Code.
232
Articles 556-558 of the Burundian Penal Code.
233
Article 554 of the Burundian Penal Code. Thus the case of raping Therese Nkeshimana, 14-year-old.
234
Articles 555 of the Burundian Penal Code.
235
Ibid.
236
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(2) Violence with respect to rape is inferred from the means resorted to by the perpetrator, viz
violence or serious threats or duress (either directly or through the intermediary of a third person), surprise, psychological pressure, coercive environment, exploiting the victim’s
weaknesses (physical or psychological weaknesses).237 Spousal status is not an excuse,238 and
the Code itself indicates that the official position of a person accused of offences of sexual violence cannot, on any account, exonerate him or her from his or her criminal liability of
rape or constitute a reason to reduce the punishment.239 What is important to note is that the
defence of superior orders or the command of a civil or military legitimate authority is not
available to the perpetrator of a crime of sexual violence.240
(c) Unlawfulness
Articles 27, 28 and 31 of the Burundian Penal Code recognise that, if some circumstances are present, the perpetrator may be exonerated from criminal liability. These circumstances
include any situation in which sexual violence does not amount to international crimes.241 The
Code should have also excluded any possibility of exemption regarding ordinary sexual
crimes. No defence should be available to a perpetrator of rape,242 except where it may be
shown that he or she was mentally disordered at the time of the act, and where it has been shown that the mental disorder actually suppressed his or her capacity to understand what he
or she was doing.243 Indeed, the defence of mental illness relates to culpability, even though
the distinction is not of any practical avail since the accused who asserts insanity and the one
asserting any ground of justification at the time of the act incurs no punishment.244
With respect to the specific case of the UN peacekeepers in Burundi, it must be indicated that the defence of superior orders cannot be available to UN soldiers because it does not seem possible to imagine a UN force commander or one commander of a national contingent involved in peacekeeping to threaten the life of a soldier if the latter does not perform an 237 Ibid. 238 Ibid. 239
Article 560 of the Burundian Penal Code.
240
Article 561 of the Burundian Penal Code.
241
The said circumstances are duress, minority of age (under 15), legal authorisation and lawful superior order, necessity, and private defence. See articles 27-28 and 31 of the Burundian Penal Code.
242
The situation where the accused was deceived as to the age of the victim, a defence to culpability should be considered available.
243
Article 25 of the Burundian Penal Code.
244
Article 25 considers acts of persons who are mentally ill as not prosecutable. It does not provide that the person has to be assigned to psychiatric facilities.
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illegal act. If this happens, the order given is manifestly and palpably unlawful, and in such a situation the subordinate is under no duty to obey such an order, and, therefore, the defence
cannot stand.245
(d) Culpability: capacity and mens rea
As indicated earlier, criminal capacity refers to the question whether the perpetrator possessed the mental ability to realise the nature of his/her conduct and to the ability to act in accordance
with this realisation of unlawfulness.246 Thus, a person who lacks the mental ability to
appreciate the nature of his or her actions or to align such actions to the appreciation she or he
has made, cannot be held criminally responsible for his or her conduct.247 A person, therefore,
who has not reached a given age, or a mentally ill person at the moment of action, is
considered to lack criminal capacity.248 Mental illness is considered as a defence. It is never
presumed.
Regarding lack of criminal capacity, the United Nations General Assembly adopted the UN Convention on the Rights of the Child in December 1989. One of its provisions recommends that States enact laws setting up the minimum age under which a child shall be presumed
criminally irresponsible for lack of criminal capacity.249 In fulfilment of this requirement,
Burundi set the minimum age of criminal capacity at 15. Before an individual has reached such an age, his or her ‘would be criminal’ actions can entail only civil responsibility, but not criminal responsibility since any person under the age of fifteen is presumed totally incapable
of giving a thorough thought to criminal activity.250
Since the question here is that of crimes committed by peacekeepers in Burundi, one needs to
take cognisance of the fact that UN forces are made up of adult soldiers.251 Rape is an
245
See Burundian Penal Code, article 27.
246
Ibid.
247
To stand as a defence, the privation of the capacity to understand or to make one’s conduct conform to legal norms must not be the fault of the performer of the criminal act. See article 26 of the Burundian Penal Code.
248
A person who has not reached his/her 15th birthday is considered criminally incapable. See article 28 of the Burundian Penal Code.
249
Article 40 (3) Convention on the Rights of the Child, U.N. Doc. A/RES/44/25 (12 December 1989).
250
Article 28 of the Burundian Penal Code reads (in French): Les mineurs de moins de quinze ans sont pénalement irresponsables. Les infractions commises par ces derniers ne donnent lieu qu’à des réparations civiles.
251
States are not allowed to recruit children under the age of fifteen into their armed forces, nor implicate them in hostilities. See articles 38 of the Convention of the Right of the Child: States Parties shall take all feasible measures to ensure that persons who have not attained the age of fifteen years do not take a direct part in hostilities. And 38 (3) provides that States Parties shall refrain from recruiting any person who has not attained
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intentional offence in Burundian law. The prosecution must demonstrate that the mens rea in
the form of intent did exist. This can easily be inferred from the means used by the perpetrator. Since the age of consent to sexual activities is 18 in Burundian criminal law, any sexual intercourse consented to by a person under the above age is considered not to be
valid.252 Any sexual contact with a person under that age, even consenting, is considered rape.
Whether the child-victim consented and received money to make the act appear as prostitution is irrelevant.
2.3.2.2 Other sexual acts and sexual offences involving children
As far as ONUB is concerned, it is important to mention that sexual activities involving children, other than the case of rape aforementioned, have not been reported. This does not necessarily mean that they did not occur in Burundi. Sex with children is rape if the victim, at
the time of the act, was not capable of giving a valid consent.253 Therefore, prostitution is the
remaining sexual offence relevant to the present discussion.
The Burundian Penal Code defines prostitution as ‘the fact of submitting his/her body to the
pleasure of others and to make a profession of it.’254
Prostitution per se is not a crime in
Burundian law, with the exception of soliciting, which consists of any acts tending to attract
some customers.255 Living upon the earnings of another person’s prostitution, either by
brothel-keeping or by inciting, procuring, or facilitating prostitution, is criminalised.256 All
these offences are characterised as offences against good mores and do not qualify as
enforced prostitution.257 Enforced prostitution falls under Burundian provisions regarding
domesticated international law, namely under crimes against humanity and war crimes.258 It is
within the latter category that peacekeepers may be considered to commit prostitution, since
the ‘client or customer’ of voluntary prostitution does not infringe any domestic law.259
But keeping a brothel or coercing a person into prostitution suffices to qualify as enforced the age of fifteen years into their armed forces. In recruiting among those persons who have attained the age of fifteen years but who have not attained the age of eighteen years, States Parties shall endeavour to give priority to those who are oldest.
252
Article 554 of the Burundian Penal Code.
253
Ibid.
254
Article 538. Present author’s translation from French.
255
Article 548.
256
Articles 539, 542-547 of the Burundian Penal Code.
257
Articles 538-548 of the Burundian Penal Code.
258
Article 196, 7° for crimes against humanity and Articles 198 (2) (v) and 198 (5) (f) of the Burundian Penal Code.
259
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prostitution. Although it is reported that some peacekeepers had acted with sexually promiscuous behaviour and, by so doing, had contributed to the encouragement of prostitution
among young girls in Burundi,260 their conduct did not amount to enforced prostitution261 or
to pimping or brothel-keeping.262
2.3.2.3 Murder
(a) Definition of murder
In Burundian criminal law, murder is ‘any act by which a person voluntarily inflicts death
upon another person.’263
This definition does not differ from any other definition found in other legal systems. For the crime of murder to be established, the following elements must be present, material elements, unlawfulness of the conduct, and culpability.
(b) Definitional elements of murder
The definitional act of murder consists in a positive act that causes the death of a human
being.264 Although the provisions of the code do not specify the means by which murder can
be perpetrated,265 article 211 is formulated in a manner that indicates that murder is brought
about by an act of direct commission, therefore excluding omissions.266 An abstention can
indeed be considered as a positive by inference from the conduct of the accused in the
material circumstances under which death occurred.267 The relationship between the
perpetrator and the victim,268 as well as the reason why the perpetrator killed the victim, is
irrelevant.269
260
Krasno J External Study: Public Opinion Survey of ONUB's Work in Burundi (City College of New York and Yale University New York 2006) 6.
261
Enforced prostitution is a crime against humanity in the Burundian Penal Code [article 196(7)] and it may amount to war crime [article 198 (v)].