THE WHISTLE BLOWER (2010)

CAST:

 Rachel Weisz as Kathryn Bolkovac

 David Strathairn as Peter Ward
 Nikolaj Lie Kaas as Jan
 Anna Anissimova as Zoe
 Monica Bellucci as Laura Leviani
 Vanessa Redgrave as Madeleine Rees
 Benedict Cumberbatch as Nick Kaufman
 Roxana Condurache as Raya Kochan
 Paula Schramm as Luba
 Rayisa Kondracki as Irka
 Liam Cunningham as Bill Haynes
 Demetri Goritsas as Kyle
 David Hewlett as Fred Murray
 William Hope as John Blakely
 Stuart Graham as McVeigh
 Alexandru Potocean as Viko

WHEN PEACEKEEPERS BECOME PERPETRATORS;

“IMMUNITY OR IMPUNITY”

The Whistleblower is based on the experiences of Kathryn

Bolkovac, an American police officer who in 1999 was assigned to
serve as a peacekeeper with the United Nations in post-war Bosnia.
While there, she reportedly discovered a sex-trafficking ring which
served and was facilitated by other peacekeepers. Bolkovac was fired
after trying to investigate the ring, but she later won a wrongful-
dismissal lawsuit.1

PLOT:
Kathryn Bolkovac is a police officer from Lincoln, Nebraska,
who accepts an offer to work with the United Nations International
Policein post-war Bosnia and Herzegovina for a UK company,
Democra Security (a pseudonym for DynCorp International). After
successfully advocating for a Muslim woman who experienced
domestic abuse, Kathryn is appointed head of the department of
gender affairs.

1
Karpel, Ari (July 28, 2011). "Exposing Injustices, the Real-Life Kind". The New York Times. (Retrieved April 18, 2018)
 Raya, a young Ukrainian woman, and her friend Luba are sold
to a Bosnian sex-trafficking ring by a relative. Raya escapes with Irka,
another girl forced into prostitution, and they are sent to a women's
shelter for victims of human trafficking. While investigating their
case, Kathryn uncovers a large-scale sexual slavery ring utilized by
international personnel (including Americans). She persuades Raya
and Irka to testify against their traffickers in court, guaranteeing
their safety; however, an indifferent UN official drops Irka at the
border between Bosnia and Serbia when she cannot produce a
passport. A corrupt peacekeeper tips off the traffickers, and Raya is
recaptured and tortured. Although rescued from the woods by
Kathryn, Irka is too afraid to proceed with the trial.
When she brings the scandal to the attention of the UN, Kathryn
discovers that it has been covered up to protect lucrative defense and
security contracts. However, she finds allies in her
investigation: Madeleine Rees, head of the Human Rights
Commission, and internal-affairs specialist Peter Ward. When Raya
is found dead, Kathryn sends an email to fifty senior mission
personnel detailing her findings; she is then fired from her job. She
and Ward acquire evidence of an official admitting the scandal before
she is forced to leave the country, and she brings it to the BBC News.
The final credits note that after Kathryn's departure, a number of
peacekeepers were sent home although none faced criminal charges
because of immunity laws, and the U.S. continues doing business
with private contractors such as Democra Security including billion-
dollar contracts in Iraq and Afghanistan.2

DISCUSSION:
The Whistleblower focuses on sexual slavery, human
trafficking, and corruption. abuse of power featured prominently
in The Whistleblower; a number of government officials participate in
the sex trade or turn a blind eye to it including peacekeepers, UN
members and mercenaries.3 There are clear and vivid monsters in
this film, but there are also those existing in the shades-of-gray
middle, nice-enough guys tolerating crimes of unspeakable
barbarity.4 Justice, another prominent theme, does not materialize
by the end. The sex trafficking victim Raya is killed, and none of the
peacekeepers who participated in the trafficking are prosecuted
although several are sent home.
The sex trade is facilitated by a large, influential
organization. When she tries to report her findings to the UN and
2
https://en.wikipedia.org/wiki/The_Whistleblower#cite_note-Karpel-6
3
Griffin, Blake (May 11, 2011). "Exclusive Interview With Larysa Kondracki On The Whistleblower". We Got this Covered. (Retrieved
April 18, 2018)
4
Baine, Wallace (August 18, 2011). "'Whistleblower' focuses on horrors of sex trafficking". Santa Cruz Sentinel. (Retrieved April 18,
2018)
local officials, she receives threats and is shunned by co-workers and
thwarted by higher-ups.
Human Trafficking
Trafficking in persons is a serious crime and a grave violation of
human rights. Every year, thousands of men, women and children
fall into the hands of traffickers, in their own countries and abroad.
Almost every country in the world is affected by trafficking, whether
as a country of origin, transit or destination for victims. United
Nations Office on Drugs and Crime (UNODC), as guardian of the
United Nations Convention against Transnational Organized Crime
(UNTOC) and the Protocols thereto, assists States in their efforts to
implement the Protocol to Prevent, Suppress and Punish Trafficking
in Persons (Trafficking in Persons Protocol).5

Elements of Human Trafficking

 The Act (What is done)

Recruitment, transportation, transfer, harboring or receipt
of persons.
 The Means (How it is done)
Threat or use of force, coercion, abduction, fraud,
deception, abuse of power or vulnerability, or giving
payments or benefits to a person in control of the victim.
 The Purpose (Why it is done)
For the purpose of exploitation, which includes exploiting
the prostitution of others, sexual exploitation, forced
labor, slavery or similar practices and the removal of
organs.
To ascertain whether a particular circumstance
constitutes trafficking in persons, consider the definition
of trafficking in the Trafficking in Persons Protocol and the
constituent elements of the offense, as defined by relevant
domestic legislation.

Provided the elements of the crime of Human trafficking as

defined by the UNODC and as showed in the movie of “The
Whistleblower”, the UN peacekeepers who was portrayed in the movie
clearly committed the crime. However, a number of peacekeepers
were sent home although none faced criminal charges because of
immunity laws and the U.S. continues doing business with private

5
https://www.unodc.org/unodc/en/human-trafficking/what-is-human-trafficking.html
contractors such as Democra Security including billion-dollar
contracts in Iraq and Afghanistan.

The United Nations Peacekeepers involving violation of Human

rights

At UN’s inception in 1945, the framers of the UN Charter

created an international organization entrusted with maintaining
peace and security, protecting human rights and the rule of law, and
promoting better living standards for the world’s poorest people.
Throughout its history, the UN has operated in some of the most
troubled regions in the world and under the most difficult of
circumstances, where rule of law institutions are often weak or
absent altogether. It was clear to member states from the outset that
in order to work effectively and, crucially, free from outside
interference the UN would require legal protection. Venturing into
what was then uncharted territory, the General Assembly set out to
establish the UN’s legal immunity from the national courts of host
states.6
In recent years, cases have emerged involving UN personnel who
have violated international and domestic law, including criminal law,
as well as their duties under the UN’s Standards of Conduct. This
has led to concerted action on perhaps the most widely known
category of cases incidents of sexual abuse perpetrated by UN
peacekeepers. Although peacekeeping troops still remain under the
sole criminal jurisdiction of their sending states, the UN now has a
comprehensive strategy for the prevention of sexual abuse by its
personnel and the organization reports that the number of
allegations of this nature have more than halved since 2007.7
The status of military and civilian personnel participating in
peace operations

Military and civilian personnel of sending states operating on

the territory of a host state have a special legal status.8 They enjoy
immunity from legal process in any other state, including the host
state and transit states. Indeed, this immunity applies not only to
heads of state or government or secretaries of foreign affairs ratione
personae, but also to any organ of the state ratione materiae. The
development of the so-called restrictive theory of immunity, which
holds that immunity is only required with respect to transactions

6 https://www.una.org.uk/magazine/summer-2013/un-immunity-who-guards-guardians (Retrieved April 18, 2018)

7 Id.
8 Ola Engdahl, Protection Of Personnel in Peace Operations: The Role of the ‘Safety Convention’ against the Background of General

International Law, International Humanitarian Law Series, Martinus Nijhoff, Leiden, 2007, pp. 29–56; Dieter Fleck (ed.)
involving the exercise of governmental authority (acta iure imperii) as
distinct from commercial or other transactions which are not unique
to the State (acta iure gestionis).9 This understanding of immunity
and its application to military forces is broadly shared today.
The principle of immunity applies not only to organs of states,
but likewise to military and civilian personnel of entities enjoying
international legal personality, such as the UN and other
international or regional organizations. The immunity of
peacekeepers is foremost that of their sending states, and the latter
remain accountable for wrongful acts committed under their
control.10 It is important to understand that immunity does not imply
impunity for military or civilian members of the forces of a sending
state or international organization. Neither can immunity limit the
accountability of that state11 or international organization.12 Rather,
it bars the host state from taking direct action against the members
of a visiting force, whereas the sending state and/or the international
organization is accountable. Individual perpetrators are to be
prosecuted by the sending state.

Purpose of Immunity
This immunity derives from the principle of state sovereignty as
recognized in customary international law and does not depend on
consent of the host state.13 The purpose of such immunity is not to
provide personal benefits to individuals, but rather to ensure an
unimpeded performance of their official functions, to respect the
equality of states under the law and to exclude any outside
interference inconsistent with the Purposes of the United Nations.14
State immunity is of utmost importance for the effectiveness of any
peace operation. For the members of participating military forces,
including their civilian component, immunity is essential for an
impartial and effective performance of the mandate which is a
prerequisite for the success of the mission.15
As a rule, UN forces engaged in peace operations enjoy full
immunity from host state jurisdiction while the sending state
exercises exclusive criminal jurisdiction. It must be underlined that
the privileges and immunities of the sending state’s military and
civilian personnel in the host state are crucial for the mission.

9 James Crawford, Brownlie’s Principles of Public International Law, 8th ed., Oxford University Press, Oxford, 2012, p. 488.
10 . United Nations Secretariat, ‘Responsibility of International Organizations: Comments and Observations Received from International
Organizations’, 56th Session, UN Doc. A/CN.4/545, 25 June 2004, p. 17.
11 Articles on Responsibility of States for Internationally Wrongful Acts, United Nations, International Law Commission, Report on the

Work of Its Fifty-Third Session (23 April–1 June and 2 July–10 August 2001), General Assembly, Official Records, 56th Session,
Supplement No. 10 (A/56/10), available at: http://legal. un.org/ilc/texts/instruments/english/commentaries/9_6_2001.pdf.
12 Draft Articles on Responsibility of International Organizations, United Nations, International Law Commission, Report on the Work of

Its Sixty-Third Session (26 April–3 June and 4 July–12 August 2011), General Assembly, Official Records, 63rd Session, Supplement
No. 10 (A/66/10), available at: http://legal. un.org/ilc/texts/instruments/english/commentaries/9_11_2011.pdf
13 D. W. Bowett et al., ‘United Nations Forces: A Legal Study of United Nations Practice’, Stevens & Sons, London, 1964, pp. 428–467; T.

D. Gill and D. Fleck (eds), above note 1, p. 143.

14 Charter of the United Nations, 26 June 1945, XV UNCIO 335, Art. 1.
15 Dieter Fleck, ‘Securing Status and Protection of Peacekeepers’, in Roberta Arnold and Geert-Jan Alexander Knoops (eds), Practice and

Policies of Modern Peace Support Operations Under International Law, Transnational Publishers, New York, 2006, p. 155.
 The immunity of members of foreign armed forces for acts
committed in their official capacity has always been honored in
jurisprudence. In the Armed Activities on the Territory of the Congo
case, the International Court of Justice (ICJ) confirmed the
customary rule that ‘the conduct of individual soldiers is to be
considered as the conduct of a State organ.16 In the Jurisdictional
Immunities of the State case, the ICJ had no doubt that acts
committed by armed forces abroad in the performance of a duty must
be characterized as acts iure imperii, that is, acts covered by a full
immunity.17
Legal Issues
Does the United Nations’ Peacekeepers involved on the
international crime of Human Trafficking can validly invoke
Immunity granted to them it relation to their official functions?
The UN Charter
UN Charter, Article 105 states:
1. The Organization shall enjoy in the territory of each of its
Members such privileges and immunities as are necessary
for the fulfilment of its purposes.
2. Representatives of the Members of the United Nations
and officials of the Organization shall similarly enjoy such
privileges and immunities as are necessary for the
independent exercise of their functions in connexion with
the Organization.
3. The General Assembly may make recommendations with
a view to determining the details of the application of
paragraphs 1 and 2 of this Article or may propose
conventions to the Members of the United Nations for this
purpose.
Under paragraph 3, the General Assembly adopted the
Convention on Privileges and Immunities of the United Nations,
which endows the UN with “legal personality” understood as the
ability to enter into contracts and institute legal proceedings.18
Article 2 of the Convention on Privileges and Immunities of the
United Nations:
The United Nations, its property and assets wherever
located and by whomsoever held, shall enjoy immunity

16 ICJ, Democratic Republic of the Congo v. Uganda, Judgment, 19 December 2005, ICJ Reports 2005.
17 ICJ, Germany v. Italy: Greece Intervening, Judgment, 3 February 2012, ICJ Reports 2012.
18 https://www.una.org.uk/magazine/summer-2013/un-immunity-who-guards-guardians (Retrieved April 18, 2018)
 from every form of legal process except insofar as in any
particular case it has expressly waived its immunity.
Given the risks faced by the UN in the operation of its
peacekeeping missions where it is often situated in the middle of
hostile forces the UN’s status of immunity from all legal processes,
as set out in the Convention, is also embedded within every status of
forces agreement (SOFA). This is the document that sets out the legal
relationship between the UN and the host state of every peacekeeping
mission.19
Status of Forces Agreement (SOFA)
The conclusion of SOFAs is of practical value for each mission.20
While the sovereign immunity of peacekeepers derives from
customary law rather than SOFAs, the latter may have three
important effects: to confirm the principle of immunity; to jointly
agree on certain limitations to existing privileges where this may be
appropriate; and to establish rules and procedures for cooperation
between the sending state and the host state.21
A significant part of SOFA negotiations will focus on the extent
to which the law of the host state applies to military and civilian
personnel of the sending state.
Article 6 of the UN Safety Convention provides in rather general
terms that:
1. Without prejudice to such privileges and immunities as they
may enjoy or to the requirements of their duties, United Nations and
associated personnel shall:
(a) Respect the laws and regulations of the host State and
the transit State; and
(b) Refrain from any action or activity incompatible with
the impartial and international nature of their duties.
2. The Secretary-General of the United Nations shall take all
appropriate measures to ensure the observance of these obligations.

What then is the status of the international official with respect

to his private acts?
Section 18 (a) of the General Convention has been interpreted
to mean that officials of the specified categories are denied
19 Id.
20 William Thomas Worster, ‘Immunities of United Nations Peacekeepers in the Absence of a Status of Forces Agreement’, in Military Law
and the Law of War Review, Vol. 47, No. 3–4, 2008, pp. 277–375.
21 Dieter Fleck, The legal status of personnel involved in United Nations peace operations,

https://www.icrc.org/eng/assets/files/review/2013/irrc-891-892-fleck.pdf ( Retrieved April 18, 2018)

immunity from local jurisdiction for acts of their private life and
empowers local courts to assume jurisdiction in such cases without
the necessity of waiver. Historically, international officials were
granted diplomatic privileges and immunities and were thus
considered immune for both private and official acts. In practice, this
wide grant of diplomatic prerogatives was curtailed because of
practical necessity and because the proper functioning of the
organization did not require such extensive immunity for its
officials. Thus, the current status of the law does not maintain that
states grant jurisdictional immunity to international officials for acts
of their private lives. This much is explicit from the Charter and
Headquarters Agreement of the ADB which contain substantially
similar provisions to that of the General Convention.22

Who is competent to determine whether a given act is

private or official?
Prior to the regime of the United Nations, the determination of this
question rested with the organization and its decision was final. By
the new formula, the state itself tends to assume this competence. If
the organization is dissatisfied with the decision, under the
provisions of the General Convention of the United States, or the
Special Convention for Specialized Agencies, the Swiss Arrangement,
and other current dominant instruments, it may appeal to an
international tribunal by procedures outlined in those
instruments. Thus, the state assumes this competence in the first
instance. It means that, if a local court assumes jurisdiction over an
act without the necessity of waiver from the organization, the
determination of the nature of the act is made at the national level.
It appears that the inclination is to place the competence to
determine the nature of an act as private or official in the courts of
the state concerned. That the prevalent notion seems to be to leave
to the local courts determination of whether or not a given act is
official or private does not necessarily mean that such determination
is final. If the United Nations questions the decision of the Court, it
may invoke proceedings for settlement of disputes between the
organization and the member states as provided in Section 30 of the
General Convention. Thus, the decision as to whether a given act is
official or private is made by the national courts in the first instance,
but it may be subjected to review in the international level if
questioned by the United Nations.23

22 Liang v. People, G.R. No. 125865, March 6, 2001: Justice Puno’s opinion.
23 Id.
Invoking Diplomatic Immunity under Philippine Context
The Department of Foreign Affairs’ determination that a certain
person is covered by immunity is only preliminary which has no
binding effect in courts. The needed inquiry in what capacity
petitioner was acting at the time of the alleged utterances requires
for its resolution evidentiary basis that has yet to be presented at the
proper time. At any rate, it has been ruled that the mere invocation
of the immunity clause does not ipso facto result in the dropping of
the charges.24

Slandering a person could not possibly be covered by the

immunity agreement because Philippine laws do not allow the
commission of a crime, such as defamation, in the name of official
duty. The imputation of theft is ultra vires and cannot be part of
official functions. It is well-settled principle of law that a public
official may be liable in his personal private capacity for whatever
damage he may have caused by his act done with malice or in bad
faith or beyond the scope of his authority or jurisdiction.25

The Vienna Convention on Diplomatic Relations, a diplomatic

agent, assuming petitioner is such, enjoys immunity from criminal
jurisdiction of the receiving state except in the case of an action
relating to any professional or commercial activity exercised by the
diplomatic agent in the receiving state outside his official functions.
As already mentioned above, the commission of a crime is not part of
official duty.26

CONCLUSION:
Based on the discussions above, a diplomatic agent or a military
peacekeepers sent by the United Nations have the right to invoke
immunity from suit for their activities related to their official
functions or duties. However, this right is not absolute and cannot
be invoked if such activity done will not fall under the classification
of an official function or if such activity is a violation, tainted with
bad faith, of a domestic law, much worst if the act of such diplomatic
agent or military peacekeeper will fall under violation of an
International Crime such as Human Trafficking or Sexual Abuse.
The movie portrayed that clearly UN peacekeepers sent to
Bosnia to maintain peace and security violated an international
crime of Human Trafficking which was disclosed by Bolkovac. The
acts of the alleged UN peacekeepers do not fall under the
classification of an official function, rather it is a commission of a

24 Liang v. People, G.R. No. 125865, March 6, 2001

25 Id.
26 Id.
crime of Human Trafficking or Sexual Abuse. Sadly, there were no
reports that even one UN peacekeeper were not sentenced in
committing the crime, they were able to invoke their right to
immunity and others were just sent back to their local home.
This certain issue must be addressed and be given concern
within local or international level and must be accorded with proper
procedure with just, transparent and fair investigation or much
better if it will be addressed by enacting a specific law or a treaty
concerning such.
Therefore, this is a manifestation that such right to immunity
granted to a diplomatic agent or a military personnel of the UN
Peacekeepers is being taken as a shield in committing of crime
whether under national or international level giving them the
confidence that they could commit a crime against any person within
the respective territorial scope of their duty for their personal interest
with impunity.

Kathryn Bolkovac
A human rights advocate, consultant, former police investigator with the Lincoln Police
Department, and former monitor with United Nations International Police Task
Force in Bosnia and Herzegovina.

Originally hired by DynCorp Aerospace, a British subsidiary of US based DynCorp

International, in the framework of a UN-related contract, she filed a lawsuit in Great
Britain against DynCorp for unfair dismissal due to a protected disclosure
(whistleblowing), and on 2 August 2002 the tribunal unanimously found in her
favor. DynCorp had a $15 million contract to hire and train police officers for duty
in Bosnia at the time. She reported such officers were paying for prostitutes, raping
underage girls and participating in sex trafficking. Many of these officers were forced to
resign under suspicion of illegal activity, but none have been prosecuted, as they also
enjoy immunity from prosecution in Bosnia.27

27 https://en.wikipedia.org/wiki/Kathryn_Bolkovac