The Responsibility of Governments
International law imposes clear obligations on governments to prohibit rape and other forms of sexual violence. At a minimum, such abuses violate the right to security of the person.6 Rape committed by or acquiesced in by a state agent is torture under international law, which defines torture as any act:
. . . intentionally inflicted on a person for such purposes as obtaining from him [sic] or a third person information or a confession, punishing him [sic] for an act he [sic] or a third person has committed or is suspected of having committed, or intimidating or coercing him [sic] or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the acquiescence of a public official or other person acting in an official capacity.7
International human rights norms also require governments to ensure that all individuals within their territories, regardless of citizenship, enjoy the equal protection of the law.8 The U.N. Human Rights Committee, whichmonitors the compliance of all state parties with the International Covenant on Civil and Political Rights, has further held that state parties have a duty to safeguard persons from such violations as well as to investigate violations when they occur and to bring the perpetrators to justice.9 In the case of refugees, the responsibility to protect "remains the primary responsibility of the countries where the refugees find themselves."10
Notwithstanding human rights standards, host governments often show little concern for the violence experienced by refugees, including rape of refugee women. Their indifference is demonstrated by ineffective security arrangements in the camps and by inadequate investigation and prosecution of rape and other forms of sexual violence against refugee women, even when the perpetrators are state agents tasked with refugee protection.
Aside from international norms, the domestic laws of virtually all host governments also prohibit rape. However, the ability of refugee and displaced women actually to seek legal redress is undermined for a number of different reasons. They are often destitute, unable to speak the local language, fearful of dealing with authorities, or situated in remote areas miles from the nearest police post or court. Where the local criminal justice system is unresponsive to allegations of rape, many refugee survivors of sexual violence consider legal redress futile. In particular, local police often are unwilling to investigate complaints against fellow police, military or immigration officials. These factors, alone or in combination, effectively deny refugees who have survived rape access to justice.
Recognizing the frequent, and in some situations, rampant occurrence of rape and sexual assault of refugee women, the UNHCR in 1995 promulgated "Sexual Violence Against Refugees: Guidelines on Prevention and Response" [hereafter "Sexual Violence Guidelines"]. These guidelines note that governments have an obligation to investigate, prosecute and punishperpetrators of sexual violence. They urge governments to adopt a "firm and highly visible policy against all forms of sexual violence" by (1) enacting and enforcing national legislation; (2) maintaining cooperative contact with national women's organizations; (3) facilitating the investigation of complaints of sexual violence; (4) ensuring protection of the victim and any witnesses from reprisal; (5) taking disciplinary action in cases involving government officials; and (6) providing adequate security at refugee camps and, where appropriate, deploying female security forces or guards. Unfortunately, as discussed below, these and other guidelines to improve refugee protection have been inconsistently implemented.
6 International Covenant on Civil and Political Rights (ICCPR), Article 9.
7 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature by General Assembly resolution 39146 of December 10, 1984, art. 1. In addition, Article 7 of the ICCPR and the U.N. Code of Conduct for Law Enforcement Officials, adopted by the General Assembly by resolution 34/169 on December 17, 1979, also prohibit torture.
8 Article 2(1) of the ICCPR states: "Each State Party to the Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdictionthe rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status." Article 26 further provides that all persons are "equal before the law and are entitled without any discrimination to the equal protection of the law."
9 See Report of the Human Rights Committee, 37 U.N. GAOR Supp. (no. 40) Annex V, general comment 7(16), paragraph 1(1982) U.N. Doc. A/37/40(1982).
10 Report of the U.N. High Commissioner for Refugees, 38 U.N. GAOR Supp. (no. 12) p. 8, U.N. Doc. A/38/12 (1983).
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