This chapter discusses remedies under national law and practical steps to be taken having regard to national and international law The effect of sexual violence on the refugee status determination process is also examined.
4.1 National Law
The Government on whose territory the sexual attack has occurred is responsible for taking diligent remedial measures, including conducting a thorough investigation into the crime, identifying and prosecuting those responsible, and protecting victims from reprisals.
Advocacy of the Enactment and/or Enforcement of National Laws
UNHCR can help States to appreciate that serious, concerted action is needed in this regard. UNHCR should advocate the enactment and/or enforcement of national laws against sexual violence in accordance with international legal obligations. This will include prosecution of offenders and the implementation of legal measures for the protection of the victim (for example, restraining orders).
Awareness of the National Laws and Practices
National law and practice vary from country to country. A country may be based on the common law system, such as England, the civil law system, such as France, or on Islamic (Sharia) law, as in Saudi Arabia. Different issues and problems will arise according to the cultural, legislative and judicial context.
The local UNHCR legal adviser or protection officer must be familiar with the national criminal and civil law on the subject of rape and sexual violence in general. Research should include a review of the relevant legal provisions, rules of criminal procedure, role of the authorities and any medical requirements. The advice of legal counsel familiar with the domestic law and procedure should be sought.
Research should take place before an incident occurs in order to know, in advance, what procedural steps should be taken in the particular country and what advice should be given to refugee victims of sexual violence.
In addition to being familiar with the law and prepared to assist a refugee victim of sexual violence, it may be appropriate in some countries for a UNHCR or NGO staff member to accompany the victim in any dealings with the police.UNHCR should adopt a supportive role once a local lawyer has been appointed, but care must be taken to ensure that the legal counsel diligently represents the victim.
Examples of Relevant Information to be Researched
Defining the Applicable Legal Standards
* What is the applicable law and procedure?
* What is the legal definition of rape?
* What are the legal definitions of other forms of sexual violence?
* Does the offense of "statutory rape" exist?
Instigating Legal Proceedings
* What are the legal requirements for reporting an incident of sexual violence?
* Is there, for example, a time limit for reporting an incident?
* What type of legal procedure is applicable and/or appropriate?
* In criminal proceedings, is it the responsibility of the victim to press charges or is this at the discretion of the State?
* Is the option of commencing civil proceedings open to the victim, in addition or as an alternative, to criminal action?
* What are the evidentiary requirements?
* Is witness corroboration necessary?
* What is the requisite standard of proof?
* What is the likely time frame?
* Are there any special medical forms to be completed by the examining doctor in relation lo possible court proceedings?
* Are there any special procedures relating to child victims of sexual abuse?
* Are there any special programmes operating, such as the victim/advocate system?
* Are there any other legal provisions that are relevant to protection, assistance and counselling?
Protection of Victims and Witnesses
* Are there any specific legal provisions that are relevant to protection of the victim and witnesses giving testimony?
Traditions and customs of the refugee community
Some refugee communities may have traditional means of responding to incidents of sexual violence within their community.
* What are these traditional procedures?
* Are they fair, just and in accordance with international human rights standards?
* In particular, do they take into account the interests and protection requirements of the victim?
* Do they take into account the protection of the refugee community?
Sentences or Punishment
* If conviction is obtained, what is the likely sentence or punishment to be given to the perpetrator?
* Are there any procedures through which a victim can apply for compensation?
* Is the burden on the State or on the individual?
* What are the likely financial costs to the victim of any legal proceedings?
* Can a victim obtain any legal aid funding in the country of asylum?
* What are the laws in relation to abortion?
* If abortion is generally illegal, are there any special circumstances under which it may be allowed? (For example, where a woman becomes pregnant as a result of rape, where the life of the baby or the woman is endangered, or where there are reasons in relation to the psychological welfare of the woman).
* What evidence is needed to satisfy the special circumstances, e.g. medical reports?
4.2 International Law
International law prohibits sexual violence. This prohibition is found in several international human rights instruments as well as in customary international law. Even if international law may not be applied at a national level, it may be useful in discussions with the authorities in reinforcing a point. It is therefore essential to be aware of the international norms which may be violated when sexual violence occurs.
Stress[es] the importance of international instruments relating to refugees, human rights and humanitarian law for the protection of asylum-seekers, refugees and returnees against sexual violence,
Executive Committee Conclusion No. 73 (XLIV) (1993), Preamble
Refugee Protection and Sexual Violence
a) The Declaration on the Elimination of Violence against Women (1993)
* This is the first set of international standards dealing specifically with violence against women.
* The Declaration was adopted, without a vote, by the General Assembly at its forty-eighth session in 1993. (Resolution 48/104 of 20 December 1993).
* It affirms that violence against women constitutes a violation of the rights and fundamental freedoms of women and impairs or nullifies their enjoyment of those rights and freedoms.
* It recognizes that effective implementation of the Convention on the Elimination of All Forms of Discrimination against Women would contribute to the elimination of violence against women.
* It is noted in the preamble that refugee women are "especially vulnerable to violence.
The Declaration is reproduced in Annex 6.
b) Systematic Mass Rape as a Crime against Humanity
* A report in 1993 by the Secretary-General of the United Nations to the Security Council specifically includes within the definition of "crimes against humanity" any acts of rape which are committed "as part of a widespread or systematic attack against any civilian population on national, political, ethnic, racial or religious grounds". It is noteworthy that systematic mass rape is an offence covered by the InternationalCriminal Tribunal for Former Yugoslavia and the International Criminal Tribunal for Rwanda.
c) Appointment of a Special Rapporteur on violence against women
* In 1994 the Commission on Human Rights appointed a Special Rapporteur on violence against women for a three-year period. (Resolution 1994/45 entitled "The question of integrating the rights of women into the human rights mechanism of the United Nations and the elimination of violence against women"). The Special Rapporteur's preliminary report outlines the most basic issues with regard to violence against refugee and internally displaced women and makes preliminary recommendations, which in the most part have been incorporated in these Guidelines.
* The Special Rapporteur is mandated, inter alia, to seek and receive information on any forms of violence against women. In this connection, UNHCR and NGOs can contribute significantly to the work of the Special Rapporteur by forwarding information on violence against women and by providing accurate, current data and statistics. A standard format for documenting violations of human rights of women is being developed by the Special Rapporteur and may be obtained from the Centre for Human Rights in Geneva. (Palais des Nations, 8-14 avenue de la Paix, 1211 Geneva 10, Switzerland. Fax: (41 22) 917 0212).
* Readers of these Guidelines are encouraged to inform national and regional non-governmental organizations active in the field of women's human rights of the appointment of the Special Rapporteur to enable the establishment of a wide network for the collection and dissemination of information on this issue.
National Plans of Action
* The Special Rapporteur is calling upon all Governments to elaborate and implement a national plan of action on violence against women, as suggested in the Declaration on the Elimination of Violence against Women. UNHCR field staff should enquire about the existence of such a plan of action with the relevant authorities and ensure the inclusion of a component on violence against refugee women. UNHCR and other fieldstaff, in cooperation with the Governments concerned, may be instrumental in the implementation of national plans of action, which, inter alia, call for the provision of specialized assistance for the support and rehabilitation of women victims of violence and for the initiation of strategies to develop legal and administrative mechanisms to ensure effective justice for these women.
d) Treaty monitoring bodies
Some of the human rights conventions have created treaty bodies to monitor the implementation and compliance of the conventions.
* The Committee on the Rights of the Child established under the Convention on the Rights of the Child (Article 43)
* The Committee on the Elimination of Discrimination against Women (CEDAW) established under the Convention on the Elimination of All Forms of Discrimination Against Women (Article 17)
* The Committee against Torture established under the Convention against Torture (Article 17)
* The Human Rights Committee established under the International Covenant on Civil and Political Rights (Article 28)
* The Committee on Economic, Social and Cultural Rights established by ECOSOC Resolution 1985/17
States are required to submit reports on a periodic basis to these Committees. Specifically in relation to the Committee on the Elimination of Discrimination against Women (CEDAW), in 1989 the Committee requested that States include in their reports information about violence against women and the measures taken to eliminate such violence. (General Recommendation No. 12).
e) Suggested action which UNHCR Staff and NGOs can take in the field
* Find out what international instruments have been ratified by the State and how these have been incorporated into national law.
* Find out what international instruments have not been ratified and ascertain the reasons for not doing so. Similarly, find out whether the State has made any reservations to international instruments, and if so the reasons for these.
* Lobby for the ratification of instruments and withdrawal of any reservations.
* Promote and disseminate international norms to raise awareness.
* Draw attention, as appropriate, to the nature, severity and magnitude of the problem of sexual violence against refugees.
Influence Reporting of States to Treaty Bodies
* Be involved in the preparation of country reports to the various treaty bodies by finding out which government section is writing them and provide input on any concerns.
* Lobby for fair and thorough reporting by States to the treaty bodies.
Provide Information to UNHCR Headquarters
* Reporting to UNHCR Headquarters on violations by a State of its international obligations relating to refugees will enable UNHCR to raise these concerns with the appropriate treaty bodies who can raise these issues with the State concerned.
* Be active in monitoring any recommendations made to the State by the treaty bodies. Such recommendations could include that the State amend its national legislation, the State improve practices, or that the State undertake special protection or assistance programmes and activities on behalf of refugees.
* Include in training sessions of government officials, such as police, military and immigration officers, information on the various international obligations as undertaken by the State and their incorporation into national laws.
In Situations of Armed Conflict
* Join the International Committee of the Red Cross (ICRC), and others, in disseminating international humanitarian law and lobbying the parties to the conflict to respect these principles.
Refer to the UNHCR Training Module Human Rights and Refugee Protection, 1995, for more detailed discussion.
f) The International Instruments Relevant to Sexual Violence include the following:
The Universal Declaration of Human Rights (1948)
Article 3 Everyone has the right to life, liberty and security of person.
Article 5 No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.
The International Covenant on Civil and Political Rights (1966)
Article 7 No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment
Article 9 1. Everyone has the right to liberty and security of person...
Article 10 1. All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.
The International Covenant on Economic, Social and Cultural Rights (1966)
Article 12 The States Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.
The Convention on the Elimination of All Forms of Discrimination against Women (1979)
Article 6 States Parties shall take all appropriate measures, including legislation, to suppress all forms of traffic in women and exploitation of prostitution of women.
In 1992 the Committee on the Elimination of Discrimination against Women (CEDAW) issued a recommendation (General recommendation No. 19) dealing exclusively with violence against women. The Committee stated that gender-based violence is a form of discrimination which seriously inhibits a woman's ability to enjoy rights and freedoms on an equal basis with men. They defined gender-based violence as that which is directed against a woman because she is a woman or which affects women disproportionately. They included "sexual harm or suffering" and "threats of such acts" as constituting gender-based violence. They noted that: "Gender-based violence may breach specific provisions of the Convention, regardless whether those provisions expressly mention violence".
The UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984)
Article 16 requires, inter alia, that the State "prevent... acts of cruel, inhuman or degrading treatment or punishment..., when such acts are committed by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity...."
The Convention on the Rights of the Child (1989)
Article 19 Protection from Abuse and Neglect
1. States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child.
2. Such protective measures should, as appropriate, include effective procedures for the establishment of social programmes to provide necessary support for the child and for those who have the care of the child, as well as for other forms of prevention and for identification, reporting, referral, investigation, treatment and follow-up of instances of child maltreatment described heretofore, and, as appropriate, for judicial involvement.
Article 24 Health and Health Services
3. States Parties shall take all effective and appropriate measures with a view to abolishing traditional practices prejudicial to the health of children.
Article 34 Sexual Exploitation
States Parties undertake to protect the child from all forms of sexual exploitation and sexual abuse. For these purposes, States Parties shall in particular take all appropriate national, bilateral and multilateral measures to prevent;
(a) The inducement or coercion of a child to engage in any unlawful sexual activity.
(b) The exploitative use of children in prostitution or other unlawful sexual practices.
(c) The exploitative use of children in pornographic performances and materials.
Article 37 Torture and Deprivation of Liberty
(a) No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment
(b) Every child deprived of liberty shall be treated with humanity and respect of the inherent dignity of the human person
Article 39 Rehabilitative Care
States Parties shall take all appropriate measures to promote physical and psychological recovery and social reintegration of a child victim of: any form of neglect, exploitation, or abuse; torture or any other form of cruel, inhuman or degrading treatment or punishment; or armed conflicts. Such recovery and reintegration shall take place in an environment which fosters the health, self-respect and dignity of the child.
The European Convention for the Protection of Human Rights and Fundamental Freedoms (1950)
Article 3 No one shall be subjected to torture or to inhuman or degrading treatment or punishment.
Article 5 1. Every one has the right to liberty and security of person
The American Convention on Human Rights (1969) ("Pact of San Jos1, Costa Rica")
Article 5 Right to Humane Treatment
1. Every person has the right to have his physical, mental, and moral integrity respected.
2. No one shall be subjected to torture or to cruel, inhuman, or degrading punishment or treatment. All persons deprived of their liberty shall be treated with respect for the inherent dignity of the human person.
Article 7 Right to Personal Liberty
1. Every person has the right to personal liberty and security.
The Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women (Convention of Bel1m do Para) (1994)
Article 7 sets out State obligations in regard to the eradication of gender-based violence.
Article 8 sets out additional obligations regarding education and the development of a mass consciousness in relation to violence against women.
Article 10 obliges the States parties to include in their national reports to the Inter-American Commission of Women information on measures adopted to prevent and prohibit violence against women and to assist women affected by violence, as well as any difficulties they observe in applying those measures, and the factors that contribute to violence against women.
Article 12 provides for an individual right of petition and a right for non-governmental organizations to lodge complaints with the Inter-American Commission of Human Rights.
The African Charter on Human and Peoples' Rights (1981)
Article 4 Human beings are inviolable. Every human being shall be entitled to respect for this life and the integrity of his person. No one may be arbitrarily deprived of this right.
Article 5 Every individual shall have the right to the respect of the dignity inherent in a human being and to the recognition of his legal status. All forms of exploitation and degradation of man particularly slavery, slave trade, torture, cruel, inhuman or degrading punishment and treatment shall be prohibited.
Article 6 Every individual shall have the right to liberty and the security of his person
INTERNATIONAL HUMANITARIAN LAW
International Humanitarian Law is the body of law which governs situations of armed conflict, whether they be of an international or non-international character. Persons of concern to UNHCR, most particularly returnees and internally displaced persons, may be found in situations of armed conflict governed by international humanitarian law.
* International Armed Conflicts
The Geneva Convention Relative to the Protection of Civilian Persons in Time of War (The Fourth Geneva Convention) (1949)
Article 27 [Protected persons]... shall at all times be humanely treated, and shall be protected especially against all acts of violence or threats thereof and against insults and public curiosity. Women shall be especially protected against any attack on their honour, in particular against rape, enforced prostitution, or any form of indecent assault.
Protocol I relating to the Protection of Victims of International Armed Conflicts (1977)
Article 51.2 The civilian population as such, as well as individual civilians, shall not be the object of attack. Acts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited.
Article 75.2 Fundamental Guarantees
The following acts are and shall remain prohibited at any time and in any place whatsoever, whether committed by civilian or by military agents:
(a) violence to the life, health, or physical or mental well-being of persons, in particular
(ii) torture of all kinds, whether physical or mental,
(iii) corporal punishment; and
(b) outrages upon personal dignity, in particular humiliating and degrading treatment, enforced prostitution and any form of indecent assault;
(e) threats to commit any of the foregoing acts.
Article 76 Protection of women
1. Women shall be the subject of special respect and shall be protected in particular against rape, forced prostitution and any other form of indecent assault.
Article 77 Protection of children
1. Children shall be the object of special respect and shall be protected against any form of indecent assault.
* Non-International Armed Conflicts
The Geneva Conventions (1949)
Article 3 ... the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to [persons taking no active part in the hostilities...]:
(a) violence to life and person, in particular... mutilation, cruel treatment and torture;
(c) outrages upon personal dignity, in particular, humiliating and degrading treatment;...
Protocol II relating to the Protection of Victims of Non-International Armed Conflicts (1977)
Article 4 Fundamental guarantees
2....the following acts against [all persons who do not take a direct part in or who have ceased to take part in hostilities] are and shall remain prohibited at any time and in any place whatsoever.
(a) violence to the life, health and physical or mental well-being of persons, in particular murder as well as cruel treatment such as torture, mutilation or any form of corporal punishment;
(e) outrages upon personal dignity, in particular humiliating and degrading treatment, rape, enforced prostitution and any form of indecent assault;
(h) threats to commit any of the foregoing acts.
Also see the Declaration on the Protection of Women and Children in Emergency and Armed Conflict, General Assembly resolution 3318 (XXIX) of 14 December 1974.
The Declaration on the Elimination of Violence against Women (See 4.2(a) above and Annex 6).
4.3 Refugee Status Determination
Strongly condemns persecution through sexual violence, which not only constitutes a gross violation of human rights, as well as, when committed in the context of armed conflict, a grave breach of humanitarian law, but is also a particularly serious offense to human dignity;
Executive Conclusion No. 73 (XLIV) (1993), paragraph (a)
Refugee Protection and Sexual Violence
Calls upon States and UNHCR to ensure the equal access of women and men to refugee status determination...
Executive Committee Conclusion No. 73 (XLIV) (1993), paragraph (c)
Refugee Protection and Sexual Violence
Acts of sexual violence may bear on the refugee status determination process both for the applicant who is a victim and for the applicant or refugee status holder who is a perpetrator.
a) The Victim
Victims of sexual violence might not be forthcoming with this information at the outset and this reluctance to report sexual violence may have significant effects on refugee status determination. Experience has clearly shown that incidents may not come to light until refugees have been resettled and seek therapy which may be months or even years later. Individuals may have contact with many refugee workers without sometimes ever disclosing their experience. Information disclosed later by the victim may be disregarded, and may even be considered to reflectnegatively on the credibility of the applicant. Paragraphs 57 through 61 of UNHCR's Guidelines on the Protection of Refugee Women provide guidance.
Recommends that in procedures for the determination of refugee status, asylum-seekers who may have suffered sexual violence be treated with particular sensitivity;
Executive Committee Conclusion No. 73 (XLIV) (1993), paragraph (g)
Refugee Protection and Sexual Violence
Recommends the development by States of appropriate guidelines on women asylum-seekers, in recognition of the fact that women refugees often experience persecution differently from refugee men;
Executive Committee Conclusion No. 73 (XLIV) (1993), paragraph (e)
Refugee Protection and Sexual Violence
In this context, it is essential that status determination officers be conscious of possible reactions to trauma (see, for instance 3.9 a) Common Psychological Reactions) and are familiar with culturally different patterns of behaviour and language. The statement by the asylum applicant to have been "badly treated" may be an euphemism for rape. Training of the relevant officials is therefore highly recommended.
Recommends the establishment by States of training programmes designed to ensure that those involved in the refugee status determination process are adequately sensitized to issues of gender and culture;
Executive Committee Conclusion No. 73 (XLIV) (1993), paragraph (j)
Refugee Protection and Sexual Violence
When rape or other forms of sexual violence are committed for reasons of race, religion, nationality, membership of a particular social group or political opinion, it may be considered persecution under the definition of the term "refugee" in the Statute of the Office (paragraph 6.A(ii)) and the 1951 Convention relating to the Status of Refugees (Article 1A(2)) if it is perpetrated or "knowingly tolerated by the authorities, or if the authorities refuse, or prove unable, to offer effective protection". (UNHCR Handbook on Procedures and Criteria for Determining Refugee Status (1992), paragraph 65)).
Supports the recognition as refugees of persons whose claim to refugee status is based upon a well-founded fear of persecution, through sexual violence, for reasons of race, religion, nationality, membership of a particular social group or political opinion,
Executive Committee Conclusion No. 73 (XLIV) (1993), paragraph (d)
Refugee Protection and Sexual Violence
Recognize[s] that States, in the exercise of their sovereignty, are free to adopt the interpretation that women asylum-seekers who face harsh or in human treatment due to having transgressed the social mores of the society in which they live may be considered as a "particular social group" within the meaning of Article 1 A(2) of the 1951 United Nations Refugee Convention,
Executive Committee Conclusion No. 39 (XXXVI) (1985), paragraph (k)
Refugee Women and International Protection
A well-founded fear of sexual violence in such circumstances can thus provide the basis for a claim to refugee status. The experience of rape or sexual torture as a form of persecution might also constitute "compelling reasons arising out of previous persecution" for not applying the cessation clauses in Article 1 C (S) and (6) of the 1951 Convention.
In certain societies, a rape victim may be killed or banished, or considered to have no alternative but to marry her attacker or become a prostitute û all additional human rights violations. Where the return to the country of origin would have one of these results, and where no other basis for her recognition has been identified, she may be considered a refugee sur place.
b) The Perpetrator
A particular situation may arise where the alleged perpetrator of an act of sexual violence is a recognized refugee or an asylum-seeker whose claim to refugee status has not yet been finally determined.
The mere suspicion or an accusation against such a person should have no immediate consequences as far as that person's status is concerned, nor should it affect the continuation of the eligibility procedure. However, as a refugee or asylum-seeker, he is subject to the laws of the country of asylum and may therefore be subject to detention during the investigation of the crime or pending trial.
Should he be convicted by a final judgment of the judiciary in the country of asylum of having committed sexual violence, it is only in the most extremecircumstances that such conviction, apart from the penal sanction, also should affect his status as a refugee or asylum-seeker in the country.
The relevant provisions of the 1951 Convention dealing with the question of refugees who have committed crimes are found in Article 1 F on Exclusion, Article 32 on Expulsion, and Article 33 on Non-Refoulement. Both Article 32 and Article 33 require, as a precondition for any measures involving the expulsion or refoulement of the refugee, that the crime(s) he has been convicted of are of such grave character, that the refugee constitutes a "threat to the national security or public order (of the country of asylum)" (Article 32) or "a danger to the community of that country" (Article 33).
Acts of sexual violence, while grave, are seldom in themselves sufficient basis for expelling or refouling a refugee, except, perhaps, in situations of repeated offenses after a first conviction. The same applies for asylum-seekers, as they may be refugees and therefore fall under the 1951 Convention. The status of asylum seekers convicted for acts of sexual violence should therefore be determined prior to making any decision regarding expulsion.
Article 1 F deals with the question of the exclusion of persons from refugee status on the grounds that they do not deserve international protection. For a more detailed elaboration on the applicability of the exclusion clauses, please refer to the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status, paragraphs 147-163.
A central point in applying the exclusion clauses, as noted in paragraph 156 of the Handbook, is the need to strike a balance between the nature of the offence allegedly committed by the asylum-seeker and the degree of persecution feared. If a person has a well-founded fear of very severe persecution, e.g. persecution endangering his life or freedom, a crime must be very grave in order to exclude him.