III.13 States must provide victims/survivors of CRSV with access to justice

The obligation to treat all civilians and persons not taking an active part in hostilities without 'adverse distinction' requires States to remove and prevent barriers that victims/survivors of CRSV may face before accessing the protections guaranteed under IHL. The prohibition of 'adverse distinction' comprises seemingly neutral measures that have the effect of adversely affecting certain persons.

Counter-charges are examples of such measures: they include laws that criminalise acts such as adultery, 'even where the act is non-consensual', and laws that criminalise homosexuality. Their enforcement results in the victim/survivor having to choose between silence or a risk of facing charges after reporting sexual violence. Victims/survivors must be able to obtain justice without suffering negative consequences.

III.16 States must provide CRSV victims/survivors with access to justice

States must provide CRSV victims/survivors with access to justice. Specific obstacles that impede access to justice and should be removed include, but are not limited to:

Inadequate national legislation. States should review and improve their national laws 'in accordance with the Committee's concluding observations and views adopted on individual communications'. Examples of inadequate national legislation are domestic laws and policies that permit exemption from punishment of a rapist 'if he marries the victim', legislation that allows for the incarceration of female detainees for crimes linked to domestic violence and polygamy, and restrictive and discriminatory legislation and policies relating to redress for civilian victims of war, including survivors of war-time sexual violence; Inadequate measures 'for securing the custody of alleged perpetrators'; State secrecy laws, which severely undermine 'the availability of information about torture, criminal justice and related issues'. Their broad application prevents the disclosure of crucial information that would enable the Committee to identify possible patterns of abuse requiring attention; Delays in processing CRSV claims; Evidential burdens and procedural requirements that interfere with the right to redress. States should:
Make readily available to victims/survivors all evidence of acts of torture or ill-treatment, upon request; Ensure that all proceedings apply gender-sensitive procedures which avoid re-victimisation and stigmatisation of victims of torture or ill-treatment. Rules of evidence and procedure on gender-based violence must afford equal weight to the testimony of women and girls, and prevent the introduction of discriminatory evidence and harassment of victims/survivors and witnesses; Ensure that national courts do not require evidence of physical resistance to sexual violence by the victims/survivors to show lack of consent;
The failure to provide sufficient legal aid and protection measures for victims/survivors and witnesses. Proceedings should not impose a financial burden on victims/survivors that would prevent or discourage them from seeking justice. Special measures should be adopted to ensure access by persons belonging to groups which have been marginalised or 'made vulnerable'. States should:
Prevent interference with victims/survivors' privacy and protect victims, their families and witnesses and others who have intervened on their behalf against intimidation and retaliation at all times 'before, during and after judicial, administrative or other proceedings that affect the interests of victims'; Provide witnesses at serious risk with long-term or permanent protection measures, including changing their identity or relocating them within or outside States; Give more attention to the psychological needs of witnesses to minimise possible re-traumatisation of victims/survivors in court proceedings; Ensure that witnesses 'have appropriate means to travel to and from the court'. States should provide escorts for their travel, as necessary;
The associated stigma, and the physical, psychological and other related effects of torture and ill-treatment. In particular, the Committee has been concerned about the culture of silence and stigma surrounding sexual violence and its victims/survivors; The failure of a State Party to execute judgments providing reparative measures for a victim/survivor of torture, handed down by national, international or regional courts; Any religious or traditional justification that would violate the absolute prohibition of torture and ill-treatment.