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Summary: The overall purpose of this Manual is to eliminate the knowledge gap about strategies women may adopt to seek justice for sexual violence. It is also to encourage women to use and exhaust all available avenues of justice within their domestic legal system and, if these systems fail them, to explore bringing complaints under regional or international mechanisms.
1. INTRODUCTION Sexual violence is the most pervasive form of violence in many of the conflict-ridden countries in Africa and continues to remain so, through various post-conflict stages even after the conflict has ended. Violence, particularly of a sexual nature and against women, that was characteristic of a prolonged conflict, comes to be accepted as the norm and part of the culture more so than it was prior to the conflict. 1.1 What is sexual violence? Sexual violence - though understood primarily as physical violence of a sexual nature such as rape - is an attack on the sexuality of the victim that may or may not involve physical attack. It includes sexual harassment, sexual exploitation, sexual abuse, sexual assault or other behaviour of a sexual nature without the consent of the victim. Silence or failure to say ‘no’ does not imply consent. Stripping of clothes, parading naked, being forced to wear certain forms of clothing, to urinate in public are examples of violence of a sexual nature or violence that the victim perceives to be of a sexual nature. 1.2 Prohibition and Accountability for Sexual Violence National legal systems and institutions offer women different avenues of justice for sexual violence, albeit with limited or difficult accessibility. However, the prohibition on sexual violence is often limited to rape in many national legal systems. Moreover, rape is most of the time understood as an offense against morality and not as a crime against the bodily integrity of a woman. Other forms of sexual violence are often understood and articulated in the law as an outrage upon the modesty of a woman or against her dignity. There have been significant developments in international law moving away from understanding sexual violence as a crime against the dignity of a woman, to an invasion or an attack on the body of a person. Such developments are yet to be incorporated in the national laws of many countries around the world, including Africa. In the meantime, victims of sexual violence, women’s rights and human rights groups must work within what may be a restrictive definition of sexual violence available in national laws. Women’s general experience with accessing legal systems is often fraught with impediments ranging from lack of knowledge, awareness or resources; the distant location of the courts, non-existence of medical or forensic facilities and the gender bias of the officials in institutions of justice. Additionally, the general lack of support to victims of sexual violence from the family, community and society does not make the pursuit of justice among the first responses of a woman victim of sexual violence. 1.3 Why Justice through a Legal Process? Throughout the world, the number of women experiencing rights violations is far more than the actual number of women filing reports of violations or bringing complaints before the national courts. Women are also under-represented in bringing complaints before regional and international treaty bodies. The proportion of cases brought is even lower in the specific context of violence against women generally and sexual violence in particular. For example, of the 31 cases decided between January 2007 and May 2009 by the United Nations Committee Against Torture, women were the principal complainants in only two cases. There have been more cases by women under the torture prohibition claiming non gender-specific torture than gender-related harms such as sexual violence. The overall gross under-utilisation of legal processes by women to address all forms of violations, and specifically gender-related ones, needs to be remedied. It is often argued that given the general difficulties in accountability for sexual violence, victims, particularly in conflict situations, are better off seeking social justice by participating in demands and processes that deal with the larger social issues such as reconstruction and development. The idea is that these processes benefit society as a whole and may help change gender biases and attitudes in the long run. While such other forms of justice are as important, justice through the legal process is among the only response to sexual violence that institutionally acknowledges the seriousness of sexual violence, validates a woman’s suffering and establishes it as a crime or harm worthy of condemnation, accountability and a remedy. 1.4 The Manual National constitutions, legislation and judicial institutions in various countries offer a host of rights, the violation of which gives rise to a remediable legal action. Where conflict has destroyed or significantly impaired existing legal systems and institutions, there is an opportunity to build new ones that are compliant with international human rights standards and the developments in international humanitarian and criminal laws. Countries like the Democratic Republic of the Congo (DRC), Rwanda, Burundi and Kenya are among those that have adopted new constitutions, made significant reforms in their national laws and strengthened their enforcement agencies to improve the prospects of accountability for crimes during conflict. Other States rely on their existing laws, systems and institutions, lacking as they may be with regard to their compliance with international human rights standards. This Manual examines the different legal options available to a victim/survivor of sexual violence or a rights group on her behalf. Although these legal options serve the overall goal of justice, they have different requirements of documentation, need different levels of victim participation and focus on a specific aspect of the remedy. In some national laws, a victim cannot choose from among the legal options as the choice is made for her by the State. For example, in some countries an investigation and prosecution begins as soon as the police come to know of a murder; finding a rape victim or knowledge of a rape sue motto triggers an investigation and prosecution. In other national legislation, the action depends on the victim/survivor who may choose not to initiate a criminal proceeding but file for a remedial action in civil courts. In yet others, the civil courts depend on a prior criminal finding of guilt to proceed with the award of any civil or related remedy. This Manual aims to provide an overview of the legal options available to women to pursue justice for sexual violence and discusses the legal strategies that influence the choice of any given option. The overview of the legal options at the domestic level are provided by laying out laws and systems typical of the three broad types of legal system in Africa – the common law system, the civil law system and Islamic law. For options at regional and international levels, the manual lays out the basics of various regional and international human rights mechanisms and the instruments applying international humanitarian and criminal law. From a discussion of the practical possibilities or impediments at the domestic level; the decisions of the regional and international human rights mechanisms; and the judgments of the regional and international courts and tribunals emerge strategies that women and victims of sexual violence may employ in their pursuit of justice, with varying degrees of potential success. 1.5 The Purpose and Objectives of the Manual The overall purpose of this Manual is to eliminate the knowledge gap about strategies women may adopt to seek justice for sexual violence. It is also to encourage women to use and exhaust all available avenues of justice within their domestic legal system and, if these systems fail them, to explore bringing complaints under regional or international mechanisms. The exercise is undertaken with the understanding that these systems and mechanisms have their limitations and are flawed in their structure or their ability to provide justice to women. Accordingly, the different legal strategies for justice may not be available to all women, may not be accessible by all women, may not provide immediate or effective remedy and/or may have other limitations and constraints. Advocacy for law reform, ratification of regional or international treaties and/or general national compliance with international human rights standards with regard to sexual violence take on an added 1.6 The Structure of the Manual The first substantive section of the Manual (Section 2) is on domestic processes of justice. It lists the different possible avenues of justice in three legal systems broadly found in Africa – the common law system, the civil law system and the Islamic law system. The possibilities and limitations of justice for sexual violence are examined using examples of laws and institutions of justice in Uganda, Democratic Republic of the Congo and Sudan as a typical model of each of these legal systems. Also discussed is the relative advantage, if any, of any one legal option over another. Section 3 is on the admissibility criteria for bringing complaints to regional or international human rights mechanisms. The criteria are explained by reference to decisions of the treaty bodies on admissibility issues. One of the key admissibility issues that are often raised by the respondent State is that the complainant has not exhausted domestic remedies. This criterion is of particular concern for women victims given that domestic remedies are often not responsive or are inaccessible to women raising gender-related violations. Understanding the basics of the rule of exhaustion of domestic remedies and its interpretation and application is central to raising complaints of sexual violence at the regional and international levels. Sections 4 and 5 examine the possibility of bringing complaints of violations to regional and international human rights treaty bodies. Since the Manual is about litigation strategies for sexual violence in Africa, African regional treaty bodies, including their various provisions that could be used for litigating claims of sexual violence and their decisions that may impact on cases of sexual violence are the focus of the study. The decisions and judgments of European and Inter-American human rights bodies and courts are used to examine precedents that may have an influence on the African mechanisms. Similarly, the international human rights instruments with provisions to address gender-related violations are examined along with some of the relevant decisions of their respective treaty bodies. The decisions and judgments are analysed with the objective to explore their potential to address sexual violence. Possibilities of addressing sexual violence under international humanitarian and criminal laws are the focus of Section 6. While providing information on the articles that relate to addressing sexual violence in the Geneva Conventions and the Rome Statute of the International Criminal Court, this Section explores the judgments of international courts and tribunals that address sexual violence. An analysis of the judgments that apply the laws, rules and principles of the Geneva Conventions and the Rome Statute provides a glimpse on the potential or limitation of successfully using these instruments. The concluding section of the manual (Section 7) discusses the specifics of the ‘how to’ and the ‘why’ of the legal strategies that emerge from the previous sections. It provides a non-exhaustive list of the documentation that may be required for raising the issue of sexual violence at different forums of justice and addresses the question of strategic advantage of using one legal option over another. The advocacy needs of women and victims for whom none of the legal options are available or accessible is also raised with suggestions on ‘how to’ use international human rights standards for advocacy purposes domestically. The section pulls and links together all the previous sections in a manner that provides women information and knowledge that is required to explore possibilities of justice at all levels – domestic, regional and international. The victims/survivors and the rights groups working on their behalf in Africa and elsewhere, are already using some of the legal strategies discussed in this Manual to pursue justice for sexual violence. The section provides a comprehensive listing of all possible legal options and an analysis of their strategic advantage. 1.7 Manual+ While the information in the document is and is meant to be a manual, the extensive listing and gender-analysis of decisions and case law may indicate otherwise. A clarification therefore is in order that the case law of different international human rights treaty bodies, courts and tribunals are used as an analytical tool to guide victims and survivors, human rights and women’s rights lawyers to fully explore the potential of justice through the use of these mechanisms. Some of the cases are not directly about sexual violence but are related in some form to litigating sexual violence. For example, decisions that hold States accountable for a failure to exercise due diligence to prevent torture or domestic violence can be similarly used to argue State failure to prevent sexual violence. The judgments that affirm sexual violence as torture provide arguments of how torture provisions may be used to litigate sexual violence nationally. And, decisions on discrimination are discussed to show that sexual violence is a form of discrimination against women. The analysis thus is used to serve the objectives of the Manual on the best ways of ‘how to’ go about litigating sexual violence. More information: