International human rights law requires governments to provide protection against violence to all persons within their territory, to investigate and punish perpetrators of violence, and to ensure equal access and protection under the law to all without discrimination on the basis of race, color, sex, national origin, or other grounds.121 These obligations extend to all refugees and asylum seekers within a host country, and the duty to protect such individuals is a primary responsibility of that host country.122 Since the basic rights of refugees are no longer protected by the governments of their home countries, the international community also assumes the responsibility of ensuring that the rights of refugees are respected,123 and the office of the UNHCR has been mandated to provide such international protection to refugees and works with host governments in pursuit of this objective.124
Many governments have been slow to respond to violence against women when perpetrated by private individuals, regardless of whether the individuals are nationals of the country, visitors, or refugees. Nonetheless, states have anaffirmative obligation to "exercise due diligence to prevent, investigate, and, in accordance with national legislation, punish acts of violence against women, whether those acts are perpetrated by the state
s or by private persons."125 Thus, the Tanzanian government has an affirmative obligation to protect women refugees from sexual and domestic violence and to ensure that women who are subjected to these assaults have full access to the Tanzanian legal system. By failing to ensure that police and court officials investigate, prosecute, and punish perpetrators of domestic and sexual violence against refugee women, Tanzania fails to comply with its international law obligations to provide women equal protection of the law as described below.
The 1951 U.N. Convention Relating to the Status of Refugees (Refugee Convention)126 requires host governments to apply their national laws and make their national courts and legal assistance equally available to refugees.127 Tanzania ratified the Refugee Convention in 1983 and thus must ensure that its national laws and courts are accessible to refugees in Tanzania who are in need of pursuing legal redress through the courts. Tanzania ratified the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) in 1985. This convention details states' obligations to ensure non-discrimination on the basis of gender and to ensure equal access to the law for all women in its territory, including refugee women.128 When the government of Tanzania does not prohibit, or routinely fails to respond to, sexual and domestic violence against refugee women within its territory, it sends the message that such attacks will be tolerated without punishment. In doing so, Tanzania fails to exercise due diligence to protect refugee women's rights to physical integrity and, in extreme cases, to life.
In international human rights law there is increasing recognition of a woman's right to sexual autonomy, including her right to be free fromnonconsensual sexual relations, including within marriage, and her right to engage in consensual sexual relations. At the U.N. International Conference on Population and Development held in October 1994 in Cairo, Egypt, and the U.N. Fourth World Conference on Women held in September 1995 in Beijing, China, governments explicitly endorsed women's reproductive and sexual autonomy.129 In the 1994 Cairo Programme of Action on Population and Development, delegates from governments around the world pledged to "eliminate all practices that discriminate against women; assist women to establish and realize their rights, including those that relate to reproductive and sexual health."130 In the 1995 Beijing Declaration and Platform for Action,131 delegates from governments around the world recognized that "human rights of women include their right to have control over and decide freely and responsibly on matters related to their sexuality, free of coercion, discrimination and violence."132 Sexual autonomy is closely linked to the rights to physical security and bodily integrity, the right to consent to and freely enter into a marriage, as well as equal rights within the marriage.133 When women are subjected to sexual coercion, be it outside a marriage or within, with no possibility for redress, a woman's right to make free decisions regarding her sexual relations is violated. Lack of sexual autonomy may also expose women to serious risks to their reproductive and sexual health. Victims of rape may facereproductive health problems, including sexually transmitted diseases such as HIV/AIDS, unwanted pregnancy, miscarriages, complications resulting from unsafe abortions and other gynecological injuries, maternal mortality, psychological trauma, and social stigmatization.
In theory, Tanzanian law provides female victims of violence with some protection and recourse when they are raped or otherwise physically assaulted. In 1998, Tanzania passed the Sexual Offences Special Provisions Act, which adopted more targeted penalties for crimes including rape, attempted rape, and statutory rape. Under the act, rape is punishable by up to thirty years of imprisonment and attempted rape is punishable by a prison sentence of up to ten years.134 Statutory rape, defined as sex with a girl under fifteen years old, is punishable by a death sentence or life imprisonment.135 Tanzania has not yet enacted explicit legislation that criminalizes domestic violence, but physical assault within a domestic setting should be punishable under the common law of assault in Tanzania.
Refugee women in Tanzania have been largely unable to obtain the legal redress to which they are entitled, particularly in cases of domestic violence. Since the beginning of 1999, there has been an increase in efforts by unhcr to mobilize Tanzanian officials, including police, to assist refugee women victims of rape in accessing justice through the Tanzanian courts. Unfortunately, this has not been the case with regard to domestic violence.136 Women victims of domestic violence face significant obstacles in mobilizing the law to protect them. There is overwhelming resistance among Tanzanian officials, including the police, to prosecuting cases of domestic violence, as discussed below. Further, women refugees are reluctant to turn to the Tanzanian justice system as a means of resolving domestic violence cases for a variety of reasons-because they lack confidence in the police, because they fear being ostracized by other refugees if they report their compatriots, and for fear that their husbands or partners, on whom they may be dependent, or to whom they retain and emotional attachment, may bejailed. In short, the current system provides them little or no recourse or remedy against domestic violence.