联合国维和人员性犯罪的刑事管辖障碍与改进建议

联合国维和人员性犯罪问题严重侵犯东道国受害者的人权并使联合国声誉受到重创。各管辖主体在对犯罪嫌疑人实际行使刑事管辖权时,存在诸多障碍:维和人员在东道国享有豁免;各国刑法在域外适用上的规定不同和派遣国主观上不愿对本国维和人员性犯罪行使管辖权;维和人员性犯罪难以被认定构成国际罪行;混合法庭须经东道国同意才能成立;维和人员性犯罪是否构成《罗马规约》中规定的国际罪行和受《罗马规约》约束的国家有限。改进建议包括:多方管辖权相互补充;成立对性剥削和性虐待作出快速反应的小组;起草《联合国官员和特派专家刑事责任公约草案》;联合国在东道国设立混合法庭;派遣国在东道国进行实地军事审判等。

Obstacles and Improving Suggestions of Criminal Jurisdiction over Sex Crimes by UN Peacekeepers

The sex crimes committed by UN peacekeepers infringes human rights of victims in host states and seriously damages the reputation of UN. Nevertheless, there are several obstacles when subjects of jurisdiction exercise criminal jurisdiction. In particular, host states mainly have obstacle on immunity of peacekeepers;sending states mainly have obstacles including criminal laws of different states have different extra-territorial application rules and sending states are unwilling to exercise criminal jurisdiction over peacekeepers of their own;third states mainly have obstacles that sex crimes are difficult to be identified as international crimes;ad hoc or hybrid tribunals mainly have obstacle that they could only be established based upon consent of host states;the International Criminal Court mainly have obstacles that whether sex crimes by peacekeepers constitute the international crimes formulated in the Rome Statute and only a few states are bound by this Statute. The improving suggestions include: the jurisdictions of different actors supplement each other;establishment of a team tasked with responding to sexual exploitation and abuse in missions and/or regions, as appropriate;drawing up the Draft Convention on the Criminal Accountability of United Nations Officials and Experts on Mission;establishing hybrid tribunal in host states by the UN;establishment of on-site court martial in host states by sending states.