Under common article 1 of the Geneva Conventions, States must respect and ensure respect for the Conventions in all circumstances and must take measures necessary to suppress acts contrary to their provisions.³¹ Under customary IHL, the obligation of States to respect and ensure respect for international humanitarian law also applies more generally to all IACs and NIACs.³² Even States that are not parties to a specific conflict have obligations in this respect.³³ As part of implementing this more general obligation, criminalising sexual violence in all its forms and in all armed contexts is an important step for ending CRSV.³⁴

Private actors including private military and security companies (PMSC). Under IHL, States have obligations to prevent and respond to violations of IHL committed by private actors.³⁵ In certain circumstances, States can also become directly responsible for the violations, which entails further obligations such as to provide reparations.³⁶

States’ obligations have been given particular consideration in relation to the activities of PMSCs, including: ‘armed guarding and protection of persons and objects, such as convoys, buildings and other places; maintenance and operation of weapons systems; prisoner detention; and advice to or training of local forces and security personnel’.³⁷

The obligations of States that hire PMSCs, States on whose territory PMSCs operate, and States where PMSCs are based, are broadly similar.³⁸ All must take effective measures towards ensuring that PMSCs and their personnel respect IHL. IHL directly applies to PMSC personnel in situations of armed conflict, just as it does to other private individuals.

Whether PMSCs are categorised as a civilian or a combatant is irrelevant: to meet their common article 1 obligations, States should prevent damages caused not just by their agents, but also private individuals, and guarantee their repression ‘with due diligence’ once they have taken place. All States must prosecute war crimes committed by PMSC personnel and other private individuals.³⁹ Depending on the circumstances, States must also prosecute a company’s chief executive officer and upper management, as well as military and civilian authorities, for failing to properly exercise control over the perpetrators.⁴⁰

The open-ended nature of the IHL provisions concerning outrages upon personal dignity and honour, in addition to significant developments in international and national jurisprudence,⁴¹ have clarified that sexual violence is not limited to physical invasion of the body.⁴²

CRSV describes acts of a sexual nature forced on any person under circumstances which are coercive. Coercive circumstances may include ‘force, threat of force, or coercion caused, for example, by fear of violence, duress, detention, psychological oppression or abuse of power’.⁴³

Armed forces, medical personnel and chaplains. ‘In time of peace as in time of war’, States must disseminate IHL ‘as widely as possible’ (language which does not afford States absolute discretion),⁴⁴ ‘in particular to the armed fighting forces, the medical personnel and the chaplains’.⁴⁵ They must include IHL in military instruction programmes. Specifically, commanders must ensure that armed forces under their command are aware of their obligations under IHL.⁴⁶

In addition, States should make IHL known to persons empowered to exercise governmental authority, as well as persons acting on their instructions or under their direction or control. States may assign the task of disseminating IHL to State organs or, if needed, other persons and groups which can be given a mandate at the national level to assist the State in the fulfilment of this obligation. National Societies can play a significant role in disseminating IHL.⁴⁷

Disseminating should not be interpreted as spreading knowledge only: while awareness of the law may act as a deterrent, it is not enough to generate respect. ‘Doctrine, education, training and equipment, as well as sanctions, are key factors in shaping the behaviour of weapon bearers during operations’.⁴⁸ States should issue military materials on IHL and CRSV or integrate them into their field manuals. They may develop detailed materials, courses and movies for the teaching of their armed forces, depending on the specific target audience’s roles and responsibilities. Finally, they should include IHL in regular practical training and exercises: ‘integration should aim to inspire and influence the military culture and its underlying values’.⁴⁹ Values that may appropriately be complemented by the study of international human rights law (IHRL).⁵⁰

‘In time of peace as in time of war’ designates this obligation as one of both prevention and humanitarian response. States’ dissemination efforts should not start only after an armed conflict has begun, when IHL principles are more difficult to teach. Spreading IHL in times of peace allows for programmes and materials to be developed for the needs of more specific audiences, and for IHL knowledge to settle and be assimilated more thoroughly.⁵¹

Civilian population. In time of peace as in time of war, States must disseminate IHL in civil instruction programmes ‘as widely as possible’.⁵² In particular, they should do so to ‘members of the executive, legislature and judiciary, as well as law enforcement officers’. Civil instructions programmes could take the form of specific training courses held for media professionals to encourage accurate reporting on legal and humanitarian issues in armed conflict. The study of IHL may also be included in programmes directed to the civilian population, for example through school or university curricula.⁵³

States must apply IHL without discrimination.⁵⁴ The protection of persons in the hands of a party to the conflict must be guaranteed without adverse distinction based on race, colour, sex, language, religion or belief, political or other opinion, national or social origin, wealth, birth or other status, or any other similar criteria.⁵⁵ To prohibit discrimination is not to prohibit differentiation in treatment: States must be mindful of the ways in which the implementation of the obligations listed in this chapter affects different, diverse groups, and may have to adopt additional measures to ensure their protection.

The express reference to ‘sex’ in IHL means that States must prohibit outrages upon personal dignity regardless of the sex of the victim or perpetrator.⁵⁶ . While some types of sexual violence (such as forced pregnancy, forced abortion and forced inspection of virginity) cannot impact everyone, the prohibition of CRSV covers not just women, but any person, including men and boys.⁵⁷ Indeed, IHL specifically provides for the protection of women and children (boys and girls) against CRSV in some provisions, while other provisions prohibit it regardless of gender.⁵⁸

‘Women, girls, men and boys are particularly vulnerable to rape and other forms of sexual violence’⁵⁹ when deprived of their liberty in relation to an armed conflict. Those who are made POWs, a status applicable only in an IAC to persons taking an active part in the hostilities,⁶⁰ are ‘in all circumstances entitled to respect for their persons and honour’; States must treat them humanely at all times and protect them against ‘acts of violence or intimidation’.⁶¹ This is significant in situations of detention, which may constitute coercive circumstances.⁶² ‘Respect for their persons’ imposes a due diligence obligation on States to be mindful of the distinct risks each prisoner faces and covers gender and sexual orientation, which is important because women and sexual and gender minorities are disproportionately at risk of CRSV.⁶³

Individuals who may have participated in the conflict, but are not currently taking an active part in the hostilities and are nevertheless deprived of their liberty, are also entitled to protection. States must treat them humanely at all times and protect their person and honour from all acts or threats of violence.⁶⁴

In a NIAC, persons deprived of their liberty are entitled to the same kind of protection.⁶⁵

Women POWs. States must treat all POWs alike, and this requires the understanding that the prohibition of discrimination is not a prohibition of differentiation in treatment.⁶⁶ Under article 14(2) of the Fourth Geneva Convention, women POWs must be treated with all the regard due to their sex and in all cases benefit from treatment as favourable as that given to men. This obligation has numerous implications for non-discrimination in the treatment of women, including taking into account the heightened risk of CRSV for women POWs. As a result, States must take proactive measures to prevent its occurrence at the hands of either guards or fellow inmates.

In camps where both women and men POWs are accommodated, women must be provided with separate dormitories and sanitary conveniences, such as clean toilets and shower facilities with sufficient and suitable sanitary products, including sanitary towels and means to dispose of them, and with clothing to deal with personal hygiene in dignity and privacy.⁶⁷ Moreover, they must be under the immediate supervision of women when undergoing disciplinary punishment or following a sentence.⁶⁸

Women deprived of their liberty. Women who cannot qualify for POW status but are nevertheless arrested, detained or interned during an IAC are entitled to separate quarters and sanitary conveniences when accommodated in the same place as men, unless they belong to the same family unit. They must not be searched except by other women. Moreover, they must be under the immediate supervision of women when undergoing disciplinary punishment or following a sentence.⁶⁹

Similarly, during a NIAC and as long as a State’s capabilities allow it, women must be held in quarters separate from those of men and be under the immediate supervision of women ‘except when men and women of a family are accommodated together’.⁷⁰ While in a NIAC this is contingent on a State’s available resources, provision should still be made for separate sleeping and washing facilities if separate quarters are not possible.⁷¹

Under the Fourth Geneva Convention, ‘protected persons’ are those who, at a given moment and in any manner, are in the hands of a party to the conflict or occupying power. Refugees who qualify as protected persons within the meaning of the Convention benefit from the protection owed to non-nationals in the hands of a party to the conflict or occupying power.⁷² Stateless persons also qualify as protected persons.⁷³

In addition, refugees who are not, in fact, under any government’s protection, enjoy special protection under article 44 of the Convention. In applying measures of control and security in regard to protected persons as may be necessary because of the war,⁷⁴ States must not treat refugees as enemy non-nationals exclusively on the basis of their nationality, in law, of an enemy State. Refugees in occupied territory that are not considered protected persons also enjoy certain protections under article 70(2) of the Convention. For the purposes of IHL, the term ‘refugee’ should be understood in a broad sense; the only criterion being that the individual in question does not ‘enjoy the protection of any government’.⁷⁵

In armed conflicts, IHL prohibits ‘[p]arties to the conflict from transferring persons in their power to another authority when those persons would be in danger of suffering a violation of those fundamental rights upon transfer’.⁷⁶ This protection is even stronger for protected persons in international armed conflicts.⁷⁷

Parties to an IAC may not deport or forcibly transfer an occupied territory’s civilian population, in whole or in part, unless the security of the civilians involved or imperative military reasons require it.⁷⁸ Similarly, parties to a NIAC may not order the displacement of the civilian population, in whole or in part for reasons related to the conflict, unless the security of the civilians involved or imperative military reasons require it.⁷⁹ In case of displacement, States must take all possible measures to provide the civilians concerned with satisfactory conditions of shelter, hygiene, health, safety and nutrition, and to ensure that members of the same family are not separated.⁸⁰

This obligation is general in nature: IHL does not expressly list what steps States must take to safeguard women from CRSV, but it does highlight that they are an at risk section of the population requiring special protection.⁸² Under rule 134 of the Customary IHL Study, States must respect the ‘specific protection, health and assistance needs of women affected by armed conflict’.

Expectant mothers and maternity cases. Civilian ‘expectant mothers and mothers of children under seven years’ are an especially at risk group. An occupying State must not hinder the application of any preferential measures in regard to medical care and protection against the effects of war which may have been adopted prior to the occupation in their favour.⁸³ States are encouraged to establish hospital and safety zones in their own territory or occupied areas to host civilian ‘expectant mothers and mothers of children under seven years’.⁸⁴

In an IAC, maternity cases and expectant mothers who do not participate in the hostilities must enjoy the same general protection as that accorded to the sick and wounded.⁸⁵ States must endeavour to conclude agreements to have them removed from besieged or encircled areas.⁸⁶ Further, they must give them (as well as nursing mothers) priority in receiving relief by virtue of the ‘privileged treatment or special protection’ they require.⁸⁷

Under rule 134 of the Customary IHL Study, States must pay attention to women’s specific needs, including mothers’, which also applies in a NIAC.⁸⁸

This obligation is general in nature: IHL does not expressly list what steps States must take to safeguard children from CRSV, but it does highlight that they are a particularly at risk section of the population.⁸⁹ Children are the ‘object of special respect’ and must be ‘protected against any form of indecent assault’.⁹⁰ States must provide them with the care and aid they require,⁹¹ as experience has shown that children, even the very youngest children, ‘are not immune from sexual assault’.⁹²

Children deprived of their liberty. Children deprived of their liberty must be held in quarters separate from the quarters of adults, except where families are accommodated as family units.⁹³ This separation should support the prevention of violence against children by non-family adult members, though notably is not a guarantee – children in situations of detention remain particularly at risk of abuse.

Where children in detention have been victims of sexual violence, States should take particular care to explain their options and the possible consequences, and to seek their own views on the action which corresponds to their best interests. Their treatment should be adapted to their physical and psychological needs, and there should be procedures and documentation which can demonstrate that their best interests have been considered and responded to. The ICRC, in its ‘Sexual Violence in Detention’ report, has stated that ‘detention should be the last resort for any child, particularly for a child who has suffered sexual violence’, with a preference for alternative forms of accommodation and care.⁹⁴

Recruitment and use of children in hostilities. States must prohibit the recruitment and use of children in both IAC and NIAC.⁹⁵ Underage recruitment and participation in hostilities ‘entails a high risk of irreparable harm’, including recruitment not only as a combatant but also to provide sexual services for the military.⁹⁶

This obligation is general in nature: IHL does not expressly list what steps States must take to safeguard persons with disabilities from CRSV, but it does highlight that they are a particularly at risk section of the population ‘as a result of the breakdown in access to – and accessibility of – support structures’ in times of conflict.⁹⁷

Persons with disabilities, who already face discrimination and stigma in peacetime, often face even greater harm in armed conflicts – including being directly targeted or indiscriminately attacked. Women and girls with disabilities face an increased risk of sexual violence, while boys and men with disabilities are forcibly recruited or mistakenly targeted as members of parties to the conflict. Institutions housing or caring for persons with disabilities have been targeted or used as human shields.⁹⁸

In an IAC, persons with disabilities who do not participate in hostilities must enjoy the same general protection as that accorded to the ‘sick and wounded’. States must endeavour to conclude agreements to have them removed from besieged or encircled areas,⁹⁹ while taking into account and accommodating their specific needs.¹⁰⁰ Further, States must give persons with disabilities priority in receiving relief by virtue of the ‘medical assistance or care’ they may require.¹⁰¹

Under rule 138 of the Customary IHL Study, States must provide persons with disabilities affected by armed conflict with special respect and protection, which also applies in a NIAC.

A disability-inclusive understanding of IHL. IHL has been repeatedly criticised as taking an outdated, medicalised approach to persons with disabilities that solely views them as ‘sick and wounded’. Critics have argued that IHL conflicts with the contemporary social model of disability propounded by the Conventions on the Rights of Persons with Disabilities (CRPD). This model does not characterise disabilities merely as a medical condition, and instead recognises that systemic and structural barriers significantly interfere with persons with disabilities’ participation in society on an equal basis with others.¹⁰²

However, the ICRC has found that IHL and CRPD complement each other in protecting persons with disabilities.¹⁰³ As mentioned above,¹⁰⁴ persons in the hands or under the territorial control of a party to the conflict must be treated humanely without adverse distinction ‘based on race, colour, sex, language, religion or belief, political or other opinion, national or social origin, wealth, birth or other status, or any other similar criteria’.¹⁰⁵ The ICRC has interpreted ‘any other similar criteria’ to include disability, in line with the prohibition of discrimination on the basis of disability enshrined under the CRPD.¹⁰⁶

The prohibition of adverse distinction is not necessarily a prohibition of differentiated measures. To treat everyone humanely, differentiated measures and/or prioritising protection of persons with disabilities due to their specific needs ‘is expressly allowed and may be even required’.¹⁰⁷ In accordance with the CRPD’s principles of ‘reasonable accommodation’ and accessibility,¹⁰⁸ differentiated measures that parties to a conflict may take include:

• Issuing advance warnings before attacks in an accessible format so that persons with disabilities have the time needed to vacate or be evacuated from a certain area;¹⁰⁹
• Removing persons with disabilities under the control of a party to the conflict from the vicinity of military objectives to protect against the effects of attacks;¹¹⁰
• Prioritisation of persons with disabilities in humanitarian relief efforts.¹¹¹ Prioritisation includes ensuring that water and sanitation facilities are physically accessible, providing support to transport relief items, and/or ensuring that shelter is accessible to persons with physical disabilities;¹¹²
• Accessible health care and rehabilitation services, which should not be restricted only to the minimum necessary for a person’s survival or depend on the severity of a person’s condition.¹¹³ In particular, POW with disabilities may require ‘therapies necessary for their rehabilitation, adjustments to camp infrastructure like extra stools for amputees or making relevant information better accessible to them, such as through the use of Braille’.¹¹⁴

In situations of occupation, occupying States (also known as occupying powers) have heightened duties under IHL. Territory is considered occupied when under the authority of adverse foreign armed forces,¹¹⁵ and the occupation extends only to the territory where such authority has been established and can be exercised.¹¹⁶

If this is the case, occupying powers must take measures to restore and ensure public order and safety and, if possible, respect the laws in force in the occupied territory,¹¹⁷ including the applicable rules of IHRL and IHL.¹¹⁸ This obligation comprises the duty to protect the inhabitants of occupied territory against acts of violence, ‘and not to tolerate such violence by any third party’.¹¹⁹ Occupying powers can be held responsible for failing to take all measures in their power to prevent violations of IHRL and IHL by their armed forces and other actors present in occupied territory.¹²⁰

Additional duties of occupying powers include:

• Respecting ‘family honour and rights’, and the lives of persons that qualify as ‘protected’ under the Fourth Geneva Convention;¹²¹
• Treating protected persons humanely at all times and without adverse distinction;¹²²
• Not causing physical suffering or extermination of protected persons in their hands. This includes torture and any other measures of brutality, whether committed by civilian or military agents;¹²³
• To the fullest extent possible, ensuring the provision of food and medical supplies to the population under occupation, as well as sufficient hygiene and public health standards;¹²⁴
• Refraining from requisitioning civilian hospitals;¹²⁵
• Allowing humanitarian organisations to continue their activities;¹²⁶
• Ensuring the effective administration of justice by allowing the occupied territory’s courts to continue to function and apply that territory’s penal laws.¹²⁷ This obligation may be particularly relevant to occupied States that have already addressed sexual violence in legislation.

Persons deprived of their liberty must have the right to complain about the conditions they are being detained in to the authorities in whose power they are.¹²⁸ Complaints must be transmitted immediately and, if unfounded, should not result in punishment.¹²⁹

States should be mindful that persons deprived of their liberty often find themselves in ‘conditions so distressing that they may commit errors of judgment’, which may result in discrepancies in their complaints.¹³⁰ This is particularly true in cases of sexual violence. Many victims/survivors do not wish to report sexual violence to the authorities, as those that do run the risk of:

• Having their identity exposed, leaving them at risk of being stigmatised in their communities, or subjected to retaliatory violence and/or honour crime;
• Being traumatised by invasive forensic examinations;
• Prosecution in jurisdictions that criminalise adultery, homosexuality or sex work;
• Arrest, detention or potential deportation in the absence of adequate civil documentation, a situation common among victims/survivors of human trafficking as well as undocumented migrants, asylum-seekers, and internally displaced or stateless persons;
• Retraumatisation and revictimisation.¹³¹

These conditions also explain the necessity of immediacy in transmitting complaints, particularly with regard to CRSV.¹³² Given the closed environment of detention, persons deprived of their liberty may remain dependent on those inflicting sexual violence, be they staff or fellow detainees, if complaints are not promptly examined.

Persons deprived of their liberty should be able to make complaints directly and confidentially to higher authorities within the detention facility, to bodies that have a supervisory function over detention facilities, and be visited by external bodies independent of the place of detention, such as ombudsman offices and domestic or international monitors. They should know and understand these mechanisms and be able to use them. The mechanisms should have effective means of response.¹³³

Enquiries. Detaining States must conduct an official enquiry into every serious injury (i.e., injuries that are ‘significant or worrying in terms of danger or risk’¹³⁴) of persons deprived of their liberty which was caused, or suspected to have been caused, by guards, fellow inmates, or any other person. The evidence of any witness must be collected and compiled in a report. If the enquiry indicates the guilt of one or more persons, the detaining State must prosecute the person or persons responsible.¹³⁵

States must take all measures necessary for the suppression of all acts contrary to the Geneva Conventions.¹³⁶ Generally, States may determine the best way to fulfil this obligation, for example by instituting judicial or disciplinary proceedings for violations of the Conventions, adopting administrative or other regulatory measures, or issuing instructions to subordinates. The measures chosen depend on the gravity and the circumstances of the violation. The punishment should be proportional to its severity.¹³⁷

As serious violations of IHL, including CRSV, constitute war crimes in both IAC and NIAC,¹³⁸ a stricter response is required. Individuals are criminally responsible for their commission.¹³⁹ Accordingly, States must investigate war crimes allegedly committed by their nationals or armed forces, or on their territory, and, if appropriate, prosecute the suspects. They must also investigate other war crimes over which they have jurisdiction and, if appropriate, prosecute the suspects.¹⁴⁰

States have the primary responsibility to ensure compliance with IHL. In recognition of this, the ICRC has affirmed that States’ criminal law, as well as their judicial system, must allow for the prosecution of persons allegedly responsible for serious violations of IHL before a domestic court, whether military or civilian.¹⁴¹

CRSV as a grave breach. In an IAC, the Geneva Conventions and Additional Protocol I prohibit ‘grave breaches’ of IHL.¹⁴² States must ‘enact any legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed’ grave breaches. Every State Party must also ‘search for persons alleged to have committed, or to have ordered to be committed, such grave breaches’, and must bring such persons, regardless of their nationality, ‘before its own courts’.¹⁴³

Grave breaches are war crimes committed in an IAC that fulfil a number of criteria.¹⁴⁴ War crimes amount to a grave breach if they are committed against protected persons and constitute wilful killing, torture or inhuman treatment, wilfully causing great suffering or serious injury to body or health.¹⁴⁵ Protected persons are those who ‘at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals’, which covers the sick and wounded, medical personnel, POWs and civilians.¹⁴⁶

Sexual violence amounts to torture or inhuman treatment when ‘inflicted on the physical and moral integrity of a person by means of threat, intimidation or force, in such a way as to degrade or humiliate the victim’.¹⁴⁷ Sexual violence ‘necessarily gives rise to severe pain or suffering’, which justifies its characterisation as an act of torture, and need not involve physical injury,¹⁴⁸ ‘as mental harm is a prevalent form of inflicting torture’.

Universal jurisdiction in national courts over acts of sexual violence. When ‘certain crimes are so grave that they affect the international community as a whole’, universal jurisdiction entitles a State ‘to prosecute offenders even in the absence of any link between the crime committed and the prosecuting state’.¹⁴⁹ Accordingly, when CRSV amounts to a grave breach in an IAC, a State must bring perpetrators, ‘regardless of their nationality, before its own courts’.¹⁵⁰

On the other hand, States only have a right, and not an obligation, to vest universal jurisdiction in their national courts over serious violations of IHL other than grave breaches. This right becomes an obligation when such violations are allegedly committed by their nationals or armed forces or on their territory.¹⁵¹

A few States have made universal jurisdiction over grave breaches or other serious violations of IHL contingent on conditions such as the presence of the accused on their territory.¹⁵² These conditions should aim to increase the effectiveness and predictability of universal jurisdiction, and not to unnecessarily restrict the possibility of bringing suspects to justice.¹⁵³

States must provide each other with mutual legal assistance in prosecuting perpetrators of CRSV. States must make every effort to cooperate, to the extent possible, with each other to facilitate the investigation of war crimes and the prosecution of the suspects.¹⁵⁴

Where sexual violence amounts to a grave breach in an IAC, cooperation may include, but not necessarily require, extradition. States that receive a request for extradition have the option of not prosecuting offenders themselves but rather, if they prefer, handing them over to a requesting State Party for trial.¹⁵⁵

The obligation to treat all civilians and persons not taking an active part in hostilities without ‘adverse distinction’¹⁵⁶ 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.¹⁵⁷

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.¹⁵⁸ 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.

Statutes of limitations. States must not subject war crimes to a statute of limitations.¹⁵⁹ Statutory limitations could prevent the investigation of war crimes and the prosecution of suspects and would constitute a violation of these obligations.¹⁶⁰

Amnesties for CRSV. States cannot extend amnesties to persons who have participated in an armed conflict and are suspected of having committed grave breaches or other serious violations of humanitarian law.¹⁶¹ Amnesties for CRSV are incompatible with the obligation of States to investigate and, if appropriate, to prosecute persons who have allegedly committed war crimes.¹⁶²

While, at the end of a NIAC, the authorities in power should grant amnesties to persons who have participated in the armed conflict or those deprived of their liberty for reasons related to the armed conflict,¹⁶³ persons ‘suspected of, accused of or sentenced for war crimes’ are the exception to the rule.¹⁶⁴

The IHL provisions relevant to CRSV do not limit the perpetrators of sexual violence to a specific category.¹⁶⁵ Outrages upon personal dignity and violence to persons must remain prohibited ‘whether committed by civilian or by military agents’.¹⁶⁶

Members of the same armed force. The war crimes of rape and sexual slavery are prohibited whether committed against the opposing party to the conflict or one’s own forces. Members of the same armed force are not excluded as potential victims.¹⁶⁷ The fact that the abuse is committed by their own party should not be a ground to deny victims/survivors protection.¹⁶⁸

Commander responsibility. States must ensure that military commanders, who are aware that their subordinates or other persons under their control are going to commit or have committed a breach of IHL, take steps to prevent violations of IHL and, where appropriate, initiate disciplinary or penal action against violators.¹⁶⁹

Superior responsibility. Superiors who are not military commanders may still be criminally responsible for war crimes committed by their subordinates if they knew, or had reason to know, that their subordinates were about to commit or were committing such crimes and did not take all necessary and reasonable measures in their power to prevent their commission or, if such crimes were committed, to punish the persons responsible.¹⁷⁰

‘Belonging to the military is not a necessary condition, as political leaders or civilian, hierarchical superiors can also be held responsible for war crimes committed by subordinates’.¹⁷¹

The defence of superior order is not permitted in the case of CRSV charges. Persons cannot claim a crime was committed pursuant to an order of a superior (whether military or civilian): the defence of superior order does not apply to grave breaches and other serious violations of IHL.¹⁷² Firstly, every combatant has a duty to disobey a manifestly unlawful order.¹⁷³ Secondly, obeying a superior order does not relieve a subordinate of criminal responsibility if the subordinate knew that the act ordered was unlawful or should have known because of the manifestly unlawful nature of the act ordered.¹⁷⁴

IHL does not expressly set out what penalties must be imposed on persons that have violated IHL. Under the Geneva Conventions, States must ‘undertake to enact any legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed, any of the grave breaches’.¹⁷⁵ However, the Geneva Conventions have little to say about other serious violations of IHL, and only that measures must be adopted to suppress them.

Penal sanctions may be one such measure:¹⁷⁶ the choice of penalties rests with States, but penalties in existing law for domestic crimes might not be appropriate in light of the seriousness of the war crimes or grave breaches in question.¹⁷⁷ States must impose penalties that are proportionate to the offence committed and reflect their severity.¹⁷⁸

While there is no corresponding express obligation in a NIAC, the use of ‘full’ in rule 158 of the Customary IHL Study (which affirms that States responsible for violations of international humanitarian law are ‘required to make full reparation for the loss or injury caused’ in both an IAC and a NIAC) suggests a need for proportionality.

Proportionate penalties are effective, in that they facilitate ‘complete respect for the Conventions’.¹⁷⁹ To be effective, penal sanctions should be dissuasive: they should stop ongoing violations of IHL and prevent their repetition, they should be imposed as quickly as possible after the crime has been committed to have a deterrent effect, and they should be foreseeable for persons who will be involved in armed conflicts. To that end, they should be disseminated appropriately so that the rule whose infringement is subject to sanctions has been internalised by the relevant parties. Finally, they should be applicable to all perpetrators without discrimination.¹⁸⁰

States must ensure that the wounded and sick, whether civilian or military, receive the medical care and attention required by their condition. No distinction may be made on any grounds other than medical ones.¹⁸¹

States should consider how the roles and patterns formed by the social, economic, cultural or political context and resulting in different statuses, needs and capacities among women and men of different ages and backgrounds could hamper the safe access to care of any one group. This may include a reluctance to seek or receive medical care, possibly owing to discrimination or stigma attached to being wounded or sick. States should take into account knowledge of social structures to ensure that health care is fully accessible to both women and men, and minimise the risks of any group being subject to discrimination, lack of respect, harm or danger before, during or after care.¹⁸²

The ICRC has noted that the legal category of ‘wounded and sick’ is broad, and simply refers to any who require medical care and refrain from any act of hostility.¹⁸³ In practice, victims/survivors have needs that go beyond medical care and assistance and are likely to last after the temporal scope of armed conflict and the application of IHL. IHL and IHRL are complementary on this issue, and require the adoption of a survivor-centred approach that considers the need to respect victims/survivors’ human rights, including their right to redress.¹⁸⁴ The ICRC has aptly noted that ‘it would be meaningless to provide medical care if adequate food, clothing, shelter and hygiene were not provided alongside’, especially when severely wounded persons are being treated over a longer period of time. In light of its object and purpose, the obligation to care for the wounded and sick should be interpreted broadly, to encompass not only medical care but also, at a minimum, the provision of food, clothing, shelter and hygiene.¹⁸⁵

Confidentiality. States must ensure that medical care is provided in accordance with contemporary professional ethics. Persons engaged in medical activities must neither be compelled to perform acts or to carry out work contrary to, nor be compelled to refrain from acts required by, the rules of medical ethics.¹⁸⁶ These ethics are set down in the rules and codes of conduct for health-care professionals, the core elements of which include: respect for the dignity and autonomy of persons deprived of their liberty, avoidance of any action detrimental to the patient, provision of relevant and quality medical care, informed consent and medical confidentiality.¹⁸⁷

Under medical confidentiality, persons engaged in medical activities must not denounce patients to an adverse party to the conflict (or their own) if that would prove harmful to the patients or their family.¹⁸⁸ Persons engaged in medical activities who refuse to give that information must not be punished.¹⁸⁹

This prohibition, however, can be made subject to national law and its impact severely reduced.¹⁹⁰ While international experts have recently reaffirmed that medical confidentiality is the abiding principle and notification duties are the exception, many national laws or policies create conflicting obligations.¹⁹¹

Supporting victims/survivors of CRSV. States should ensure that support of victims/survivors of CRSV includes timely care, safety, non-maleficence, confidentiality, privacy, informed consent, and respect for the wishes, rights and dignity of the victim/survivor. Survivor-centred approaches,¹⁹² which give priority to the victim/survivor’s individual informed choices, help ensure that safety and security are considered and appropriate for each case. This can support victims/survivors to re-establish power and control over their lives and helps minimise the risk of revictimisation.¹⁹³

Further, States should provide victims/survivors of CRSV with access to medical, psychosocial and psychological care. States should provide these services without interference and with respect for the principle of medical confidentiality. Rape and other forms of sexual violence are medical emergencies, with potentially severe physical and psychological consequences for victims/survivors. Thus, States should ensure that victims/survivors have unimpeded access to good-quality, timely and impartial medical care within 72 hours of the commission of CRSV.

Moreover, States should make economic assistance available to victims/survivors to ensure that their immediate basic needs are met, since CRSV can have devastating effects on victims/survivors’ lives, including their ability to earn a living and to provide for themselves.¹⁹⁴

Reproductive health services. Women have gender and sex-specific needs.¹⁹⁵ Sexual violence has distinct effects on women’s physical and mental health and psychosocial well-being. In particular, they face the additional risk of pregnancy, which may have adverse physical and psychological consequences, ranging from medical complications during pregnancy or labour to stigmatisation and ostracism while pregnant or raising a child from rape.¹⁹⁶

States party to an armed conflict should provide women who have been subjected to CRSV with access to reproductive health services, and ensure that their protection and care take into account their specific needs with regard to hygiene, ante- and post-natal care and gynaecological and reproductive health, including physiological factors that may heighten the risk of anaemia and mineral deficiencies.¹⁹⁷

As regards POWs, detaining States should take proactive measures to ensure that women POWs who are victims of CRSV have access to appropriate, gender-specific health care.¹⁹⁸ Detaining States should provide medical services in POW camps that comprise expertise and skills in dealing with both male and female patients. If women are pregnant or have just given birth when they fall into enemy hands or become pregnant during captivity, specific medical attention will be required. States should ensure that the medical services available to female POWs are adequately equipped to address women’s gynaecological and reproductive health issues.¹⁹⁹

Abortion. While there is no reference to the issue of abortion in IHL treaties,²⁰⁰ the ICRC has found that a number of IHL provisions are relevant to the provision of abortion to rape victims/survivors. ²⁰¹

First, rape is indisputably prohibited under IHL.²⁰² If IHL were fully respected, the issue of victims/survivors who become pregnant as a result of rape in connection with an armed conflict would not exist.²⁰³

Second, States must provide medical care to the wounded and sick without discrimination.²⁰⁴ Victims/survivors of rape are covered by IHL provisions protecting wounded and sick persons.²⁰⁵ As IHL treaties do not specify what kind of medical care may be required, abortion could be included within its meaning. However, this does not mean that IHL imposes abortion for victims/survivors of rape, or regardless of whether domestic law permits abortion.²⁰⁶

Third, the prohibition of discriminatory treatment in the provision medical care means that, if domestic law permits abortion, a State may not deny abortion to some victims/survivors while allowing it for others. The service must be equally available to all.²⁰⁷

States are responsible for violations of IHL attributable to them, including violations committed by:

• Their organs (including their armed forces);
• Persons or entities they empowered to exercise elements of governmental authority;
• Persons or groups acting as a matter of fact on their instructions (or under their direction or control);
• Private persons or groups (whose acts States acknowledge and adopt as their own conduct).²⁰⁸

In these cases, States must make full reparation for the loss or injury suffered by victims/survivors. For example, they may do so in the form of restitution, compensation and/or satisfaction.²⁰⁹

Under IHL, the responsible State must make reparation to the “injured” State, meaning the State to which an international legal obligation was owed and whose breach requires reparation. Generally, the injured State is the party to which the victim/survivor of violations of IHL belongs.²¹⁰ However, there is an increasing trend in favour of enabling individual victims/survivors, who ‘should be regarded as the ultimate beneficiaries’, to seek reparation directly from the responsible State, rather than through the injured State.²¹¹