I. Introduction🔗
The commitment of the Security Council is unequivocal, to bring all tools to bear to break the seemingly endless cycles of sexual violence and impunity.
Pramila Patten, Special Representative of the Secretary-General on Sexual Violence1
The United Nations (UN) is an intergovernmental organisation founded in the wake of World War II by 51 countries ‘to save succeeding generations from the scourge of war’.2 The UN is guided by the purposes and principles contained in its founding document, the UN Charter,3 such as maintaining international peace and security, developing friendly relations among nations, solving international problems cooperatively and promoting human rights.4 Almost all States in existence have ratified the UN Charter.5
Since its very beginning, the UN has encouraged and participated in the development of international law to regulate international relations and establish ‘conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained’.6 It has done so through its main bodies, including the UN General Assembly (UNGA), the UN Security Council (UNSC), the International Court of Justice (ICJ) and the Secretariat.
The UNGA is the main deliberative, policy-making and representative organ of the UN. All UN Member States are represented in the UNGA, which functions as a forum for multilateral discussion of international issues covered by the UN Charter.7
Composed of 5 permanent and 10 non-permanent members, the Council has primary responsibility, under the UN Charter, for the maintenance of international peace and security.8 Its decisions are binding on all UN Members.9
Note to reader
Our focus on the Council in this chapter is due to the Council’s
lead and binding role in determining the existence of a threat to the peace or act of aggression, and what measures may be required in response, under Chapters VI and VII of the
UN Charter.
The ICJ is the UN’s principal judicial organ. Its role is to settle, in accordance with its Statute and international law, legal disputes submitted to it by States and to give advisory opinions on legal questions referred to it by authorised UN organs and specialised agencies.10
The Secretariat comprises the Secretary-General and UN staff members who carry out the day-to-day work of the UN as mandated by its main bodies. The Secretary-General is a symbol of the UN’s ideals, and an advocate for all the world’s peoples.11 Under the UN Charter, the Secretary-General is empowered to bring to the attention of the Council any matter that may threaten the maintenance of international peace and security.12
I.1 CRSV under the UNSC Resolutions🔗
In its seminal 2008 resolution, Resolution 1820, the Council stated that CRSV has been used as a ‘tactic of war to humiliate, dominate, instil fear in, disperse and/or forcibly relocate civilian members of a community or ethnic group’.13 In 2009, the Council condemned in the strongest terms ‘all sexual and other forms of violence committed against civilians in armed conflict’, and recognised that in the context of armed conflict – both international and non-international – civilians (in particular women and children) require protection as an at risk section of the population.14 Since then, the Council has expressed concern over CRSV committed in, for example, the Democratic Republic of Congo,15 the Central African Republic,16 Somalia,17 Mali,18 Yemen,19 and Sudan.20
The Council has noted that women and girls ‘account for the vast majority of those adversely affected by armed conflict, including as refugees and internally displaced persons, and increasingly are targeted by combatants and armed elements’.21 Protecting and guaranteeing the rights of women and girls in times of war and promoting their participation in peace processes are essential to achieving international peace and security.22 The Council has also acknowledged that men and boys can be victims of CRSV, including in detention settings and within armed groups.23
Further, the Council has recognised that sexual violence is ‘known to be part of the strategic objectives and ideology of certain terrorist groups, used as a tactic of terrorism, and an instrument to increase their power through supporting financing, recruitment, and the destruction of communities’.24
I.2 The UNSC’s Response to CRSV🔗
Under Chapter VII of the Charter, the Council has the authority to establish ‘the existence of any threat to the peace, breach of the peace, or act of aggression’, and to make recommendations or determine measures ‘to maintain or restore international peace and security’.25 Before doing so, the Council may require all parties concerned to comply with any provisional measures it deems necessary: a failure to comply may result in a harsher response.26
Decisions on procedural matters require nine members of the Council to vote affirmatively. Decisions on non-procedural matters require nine members of the Council to vote affirmatively, including the permanent members (i.e., China, France, Russia, the United Kingdom and the United States of America).27
Measures to maintain or restore international peace and security are generally considered as non-procedural matters,28 and include:
- Measures ‘not involving the use of armed force’, such as ‘complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations’. The Council may call upon Members of the UN to apply such measures;29
- Should such measures be inadequate, ‘action by air, sea, or land forces’. Action includes ‘demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations’.30
CRSV, as a practice that may reach appalling levels of brutality that persist after the cessation of hostilities and ‘impede the restoration of international peace and security’, may require the adoption of such measures to avoid the significant exacerbation of armed conflict situations.31 Hence, the Council has continuously included such situations on its agenda to, where necessary, adopt appropriate steps to address them.32 For example, it has required all parties to an armed conflict to cease all acts of sexual violence with immediate effect.33 The Council has done so by recalling the commitments States have under the Beijing Declaration and Platform for Action, reaffirming the obligation of States Parties to the Convention on the Elimination of All Forms of Discrimination against Women and its Optional Protocol (urging States that have not yet done so to consider ratifying or acceding to them), and noting General Recommendation 30 on Women in Conflict Prevention, Conflict and Post-Conflict Situations of the Committee on the Elimination of Discrimination against Women.34
Other ways in which the Council has dealt with threats to peace include:
- State-specific sanctions regimes, including targeted and graduated measures against parties to armed conflict who commit CRSV;35
- The appointment of the Special Representative of the Secretary-General on Sexual Violence in Conflict;
- The use of force.
I.2.1 Sanctions🔗
Sanctions are a non-military measure that the Council has increasingly resorted to. As sanctions are adopted in accordance with the Council’s powers under Chapter VII of the UN Charter,36 all UN Members have an obligation to implement them when called upon. Since 1966, the Council has established 31 sanctions regimes.
Security Council sanctions have taken a number of different forms, in pursuit of a variety of goals. The measures have ranged from comprehensive economic and trade sanctions to more targeted measures such as arms embargoes, travel bans, and financial or commodity restrictions. The Security Council has applied sanctions to support peaceful transitions, deter non-constitutional changes, constrain terrorism, protect human rights and promote non-proliferation.
Sanctions do not operate, succeed or fail in a vacuum. The measures are most effective at maintaining or restoring international peace and security when applied as part of a comprehensive strategy encompassing peacekeeping, peacebuilding and peacemaking. Contrary to the assumption that sanctions are punitive, many regimes are designed to support governments and regions working towards peaceful transition.37
The Council has imposed targeted sanctions on individuals who have perpetrated and directed CRSV.38 In resolution 2467, the Council reiterated its intention, when choosing whether to adopt or renew targeted sanctions in situations of armed conflict, to consider including designation criteria pertaining to acts of rape and other forms of sexual violence.39
The following are four regimes which expressly denote sexual and gender-based violence as violations of international law requiring sanctions.
I.2.1.1. SITUATION IN THE DEMOCRATIC REPUBLIC OF CONGO (DRC)🔗
In Resolution 1493 (2003), the Council called upon the parties to the conflict to stop violations of international humanitarian law (IHL). Five years later, the Council ‘strongly condemn[ed] the continuing violence, in particular sexual violence directed against women in the Democratic Republic of the Congo’40 and included CRSV as part of the designation criterion for sanctions.41
In 2016, the Council adopted Resolution 2293 noting again ‘with great concern the persistence of serious human rights abuses and international humanitarian law violations against civilians in the eastern part of the DRC’, including ‘sexual and gender-based violence and large scale recruitment and use of children committed by armed groups’. The resolution renewed the previously imposed sanctions.42
The Council also urged ‘the Government of the DRC to continue the full implementation and dissemination throughout the military chain of command, including in remote areas, of its commitments made in the action plan signed with the United Nations, and for the protection of girls and boys from sexual violence’.43 It welcomed efforts ‘made by the Government of the DRC to combat and prevent sexual violence in conflict, including progress made in the fight against impunity’. The Council called on the DRC ‘to further pursue its action plan commitments to end sexual violence and violations committed by its armed forces and continue efforts in that regard, noting that failure to do so may result in the [Armed Forces of the Democratic Republic of the Congo] being named again in future Secretary General’s reports on sexual violence’.44
I.2.1.2. SITUATION IN SOMALIA🔗
In Resolution 2002 (2011), the Council included sexual and gender-based violence as a designation criterion for targeted sanctions. The Council condemned in the strongest terms ‘all acts of violence, abuses and violations, including sexual and gender-based violence, committed against civilians, including children, in violation of applicable international law’.45 The Council stressed ‘that the perpetrators must be brought to justice, recalling all its relevant resolutions on women, peace and security, on children and armed conflict, and on the protection of civilians in armed conflicts’.46
I.2.1.3. SITUATION IN SOUTH-SUDAN🔗
In 2015, the Council established a sanctions regime against South Sudan, and included rape and sexual violence in the list of prohibited acts.47 The Council strongly condemned ‘past and ongoing human rights violations and abuses and violations of international humanitarian law’, including those involving rape, and other forms of sexual and gender based violence, by all parties, ‘including armed groups and national security forces, as well as the incitement to commit such abuses and violations’. The Council emphasised ‘that those responsible for violations of international humanitarian law and violations and abuses of human rights must be held accountable, and that the Government of South Sudan bears the primary responsibility to protect its population from genocide, war crimes, ethnic cleansing, and crimes against humanity’.48
The Council also condemned ‘the use of media to broadcast hate speech and transmit messages instigating sexual violence against a particular ethnic group, which has the potential to play a significant role in promoting mass violence and exacerbating conflict’49 and called on the Government ‘to take appropriate measures to address such activity’.50 The Council urged all parties to instead contribute to promoting peace and reconciliation among communities.51
I.2.1.4. SITUATION IN THE CENTRAL AFRICAN REPUBLIC🔗
In 2014, the Council adopted targeted sanctions in Resolution 2134 against individuals undermining peace, threatening political processes, and committing atrocities, including sexual violence.52 The Council expressed its concerns about the ‘multiple and increasing violations of international humanitarian law and the widespread human rights violations and abuses’, including those involving sexual violence against women and children and rape ‘committed by both former Seleka elements and militia groups, in particular those known as the “anti-Balaka”‘.53
The Council decided that the mandate of the United Nations Integrated Peacebuilding Office in the Central African Republic had to be reinforced and updated to include the promotion and protection of human rights and ‘monitor, help investigate and report to the Council, specifically on violations and abuses committed against children as well as violations committed against women including all forms of sexual violence in armed conflict, including through the deployment of child protection advisers and women protection advisers’.54
I.2.2 The Special Representative of the Secretary-General on Sexual Violence in Conflict🔗
The Council’s binding resolutions on CRSV are complemented by the work of the Office of the Special Representative of the Secretary-General on Sexual Violence in Conflict, established by UNSC resolution 1888 (2009).55 To effectively address CRSV at both headquarters and country level, the Special Representative is empowered to:
- Provide coherent and strategic leadership;
- Strengthen existing UN coordination mechanisms;
- Engage in advocacy efforts with parties to armed conflict, civil society and governments, including military and judicial representatives;
- Promote cooperation and coordination of efforts among all relevant stakeholders, primarily through the UN Action against Sexual Violence in Conflict inter-agency initiative, a network of 24 UN entities aiming to end sexual violence ‘during and in the wake of armed conflict’;56
- Work with UN Members to develop joint Government-UN Comprehensive Strategies to Combat Sexual Violence, in consultation with all relevant stakeholders;57
- Provide additional briefings and documentation on sexual violence in armed conflict to the Council.58 A primary function of the Office of the Special Representative is to prepare the Annual Report of the Secretary-General on CRSV, focusing on countries for which credible information is available. The Report includes detailed information on parties to armed conflict that are ‘credibly suspected of committing or being responsible for’ acts of sexual violence. All listed parties should engage with the Office to develop ‘specific, time-bound commitments and action plans to address violations’, or risk exclusion from UN peacekeeping operations.59
Since 2017, the office has been led by the Special Representative Ms Pramila Patten of Mauritius, who has set three strategic priorities as part of her mandate, namely ‘(i) converting cultures of impunity into cultures of justice and accountability through consistent and effective prosecution; (ii) fostering national ownership and leadership for a sustainable, survivor-centered response; and (iii) addressing the root causes of CRSV with structural gender inequality and discrimination, poverty and marginalization as its invisible driver in times of war and peace’.60
The Special Representative has highlighted the work done by the Council to address CRSV throughout its resolutions:
‘The resolutions on sexual violence articulate the elements of a compliance regime to influence the conduct of perpetrators, and potential perpetrators. The resolutions reinforce International Humanitarian Law, which makes it clear that even wars have limits, and sexual violence is beyond the scope of acceptable conduct, even in the midst of battle. These limits have been universally agreed upon and must be universally respected. They include a categorical prohibition on all forms of sexual violence, which can never be excused, justified, or amnestied’.
In addition, the Special Representative has indicated that sexual violence ‘is the most consistently and massively under-reported violation’, hence the available data only represents ‘the tip of the iceberg’. Her office has recommended that the Council ‘mobilize immediately on the basis of our common conviction that even one case of sexual violence is unacceptable’.61
Note to reader
The Office of the Special Representative of the Secretary-General on Sexual Violence in Conflict has produced a number of important tools for States and international actors to combat CRSV. These resources can be explored in the "Further Readings" chapter.
I.2.3 Use of Force, Humanitarian Intervention and Responsibility to Protect🔗
In their international relations, all UN members must refrain from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the purposes of the UN.62 Under the Charter, there are only two exceptions to the rule:
- States may use force in self-defence against an armed attack.63 The use of force in retaliation, including as punishment, revenge or reprisal, is not legal;64
- Under article 42 of the Charter, the Council may expressly authorise States, and States acting through international organisations, to use force after determining the existence of any threat to the peace, breach of the peace, or act of aggression. Since the end of the Cold War, the Council has authorised the use of force numerous times.65
A third, but controversial exception, ‘not mentioned in the Charter and presumably to be found, if at all, in customary international law’, envisages a right for States to use force to avert an overwhelming humanitarian catastrophe in another State (i.e., a humanitarian intervention) without the authorisation of the Council.66 Its proponents hold that, in cases of egregious violations of IHL and/or international human rights law, State sovereignty and the prohibition on the use of force must yield to humanitarian imperatives.67
Conscious of the controversial nature of humanitarian intervention, and of the much-criticised NATO military intervention in Kosovo,68 at the 2005 UN World Summit meeting, UN Member States committed instead to the principle of the responsibility to protect (R2P).69 They found that, under this principle:
- Each individual State has the responsibility to protect its populations from mass atrocity crimes (i.e., genocide, war crimes, ethnic cleansing and crimes against humanity);
- The international community should encourage and help States to exercise this responsibility, including ‘before crises and conflicts break out’, and support the United Nations in establishing an early warning capability;
- In accordance with the UN Charter, the international community has the responsibility to use diplomatic, humanitarian and other peaceful means to help to protect populations from mass atrocity crimes. If a State is manifestly failing to protect its populations from such crimes and peaceful means are inadequate, the international community should take collective action, in a timely and decisive manner, through the Council and in accordance with the Charter, including Chapter VII, to protect that State’s populations.70
While the application of R2P is restricted to mass atrocity crimes, the UN has a vast array of tools available to address these violations. This encompasses:
- Preventative measures, including ‘monitoring and warning systems for mass atrocity crimes, institution-building, and diplomatic efforts’;
- Protective measures once atrocity crimes are committed, including refugee camps for fleeing populations, coercive measures against perpetrators such as targeted individual sanctions on travel and finance, and the use of force through the Council as a last resort;
- Post-hoc measures to respond to mass atrocity crimes, including creating international commissions of inquiry, referring cases to the International Criminal Court for prosecution, and assisting local efforts for truth and reconciliation.71
II. Legal Framework🔗
United Nations Security Council resolutions, including resolutions on:
- Women, Peace and Security Agenda
- Children and Armed Conflict
III. Obligations under the UNSC Resolutions🔗
Prevention🔗
III.1 States should criminalise CRSV🔗
National authorities should ‘strengthen legislation to foster accountability for sexual violence’.72 The domestic investigation and judicial systems of Member States have a critical role in preventing and eliminating sexual violence in conflict, and ensuring accountability for those responsible.73 Thus, criminalisation of CRSV is an important step in addressing CRSV.
Laws can have preventative value from two points of view:
- First, the criminalisation of gender-based violence and atrocities indicates what is and what is not acceptable behaviour in a society, strengthening normative values and contributing to the rule of law;
- Second, these laws and institutions may also have preventative value insofar as robust frameworks to punish gender-based violence and atrocity crimes are a necessary first step in making accountability efforts possible, if these acts occur.74
To maximise States’ ability to address CRSV, national legal frameworks should incorporate relevant aspects of international criminal law and IHL.75
III.2 States parties to armed conflict must cease CRSV against civilians🔗
All parties to armed conflict must cease all acts of sexual violence against civilians,76 particularly women and girls, with immediate effect and also in post-conflict situations.77
III.3 States parties to armed conflict must fully respect international law applicable to the rights and protection of women and girls🔗
All parties to armed conflict must fully respect international law applicable to the rights and protection of civilians, especially women and girls, in particular as protected under:
- The Geneva Conventions of 1949 and the Additional Protocols thereto of 1977;
- The Refugee Convention of 1951 and the Protocol thereto of 1967;
- The Convention on the Elimination of All Forms of Discrimination against Women of 1979 (CEDAW) and the Optional Protocol thereto of 1999; and
- The United Nations Convention on the Rights of the Child of 1989 and the two Optional Protocols thereto of 25 May 2000.78
Additionally, States should bear in mind the relevant provisions of the Rome Statute of the International Criminal Court.79
III.4 States should be inclusive in their efforts to address CRSV🔗
States should adopt a ‘survivor-centered approach in preventing and responding to sexual violence in conflict and post-conflict situations’. They should ensure that prevention and response are non-discriminatory and specific. Further, they should respect the rights and prioritise the needs of victims/survivors, including groups that are particularly vulnerable or may be specifically targeted, ‘notably in the context of their health, education, and participation’.80
Refugees and internally displaced persons are a particularly vulnerable group. Civilians, especially women and children, account for the vast majority of those adversely affected by armed conflict, including as refugees and internally displaced persons.81 States parties to armed conflict must consider the specific needs of women and girls in refugee camps and settlements, including in their design.82
III.5 States must take special measures to protect their population, especially women and girls, from CRSV🔗
States must ‘take special measures to protect women and girls from gender-based violence, particularly rape and other forms of sexual abuse, and all other forms of violence in situations of armed conflict’.83 Appropriate measures include, among others:
- Enforcing appropriate military disciplinary measures and upholding the principle of command responsibility;
- Training troops on the categorical prohibition of all forms of sexual violence against civilians (which encompasses the issuance of clear orders through chains of command prohibiting sexual violence and the prohibition of sexual violence in Codes of Conduct, military field manuals, or equivalent);84
- Identifying and releasing women and children ‘who have been forcefully abducted into armed groups and armed forces’ from their ranks;85
- Debunking myths that fuel sexual violence;
- Vetting armed and security forces to take into account past actions of rape and other forms of sexual violence;
- Evacuation of women and children under imminent threat of sexual violence to safety;86
- Supporting the capacity of civil society groups to enhance informal community-level protection mechanisms against sexual violence in conflict and post-conflict situations.87
The application of these special measures has particular importance in armed conflict given that sexual violence occurs ‘on a continuum of interrelated and recurring forms of violence against women and girls’:88 armed conflict exacerbates the frequency and brutality of other forms of gender-based violence.89 To that end, States should strengthen the ‘rule of law and accountability as a central aspect of deterrence and prevention of crimes of sexual violence’.90
Additionally, States should protect men and boys at risk of or subjected to CRSV by establishing and strengthening policies that offer appropriate responses to male survivors and challenge cultural assumptions about male invulnerability to such violence.91 The monitoring, analysis, and reporting of CRSV should focus more consistently on the gender specific nature of sexual violence in conflict and post-conflict situations against all affected populations in all situations of concern, including men and boys.92
III.6 States should take special measures to protect children from CRSV🔗
The Council has strongly condemned the targeting of children in armed conflict, including their recruitment and use in conflict in violation of international law.93 All parties to armed conflicts should ‘take special measures to protect children, in particular girls, from rape and other forms of sexual abuse and gender-based violence’.94 Governments have the primary role and responsibility in providing protection and relief to all children affected by armed conflict, and should strengthen national capacities in this regard.95
Education. The Council has expressed deep concern about girls being the target of attacks while attempting to access and/or continue education at school and on the way to and from school. Attacks include rape and other forms of sexual violence such as sexual slavery, threats of attacks, abductions, forced marriage, human trafficking, and any resulting stigma and grave consequences on their health, all of which may further impede the continuation of their education. States should foster an enabling and secure environment to ensure safe access to education.96
III.7 States should implement the Women, Peace and Security Agenda and include civil society, especially women, in peace processes🔗
The Council has recognised ‘the progress made as well as the opportunity and need for far greater implementation of the women, peace and security agenda’, expressing concern at the persisting barriers to its full implementation. The Council has been especially wary of:
- The frequent under-representation of women in many formal processes and bodies related to the maintenance of international peace and security;
- The relatively low number of women in senior positions in political, peace and security-related national, regional and international institutions, and the lack of adequate gender-sensitive humanitarian responses and support for women’s leadership roles in these settings;
- Insufficient financing for Women, Peace and Security, and the resulting detrimental impact on the maintenance of international peace and security.97
States should implement the Women, Peace and Security Agenda98 by:
- Ensuring and promoting the full, equal and meaningful participation of women in all stages of peace processes, including through mainstreaming gender perspectives;99
- Facilitating women’s full, equal and meaningful inclusion and participation in peace talks from the outset, both in negotiating parties’ delegations and in the mechanisms set up to implement and monitor agreements;
- Supporting efforts, including timely support to women to enhance their participation and capacity building in peace processes, ‘to address the unequal representation and participation of women in the peace and security agenda’100 and all political processes, including negotiations for peace.101
Gender perspectives in peace processes. States should incorporate a gender perspective in all stages of peace processes, including conflict resolution and peacebuilding,102 and ‘across humanitarian programming’. They should do so by ensuring that access to protection and the full range of medical, legal and psychosocial and livelihood services are available without discrimination, and that women and women’s groups can participate meaningfully and are supported to be leaders in humanitarian action.103
To reinforce States’ ability to address CRSV, all actors involved in peace agreements must adopt a gender perspective that encompasses:
- The special needs of women and girls during repatriation and resettlement and for rehabilitation, reintegration and post-conflict reconstruction;
- Measures that support local women’s peace initiatives and Indigenous processes for conflict resolution, and that involve women in the peace agreements’ implementation; and
- Measures that ensure the protection of and respect for human rights of women and girls, particularly as they relate to the constitution, the electoral system, the police and the judiciary.104
Ensuring the participation of civil society. States must condemn acts of discrimination, harassment and violence against civil society and journalists who report on CRSV and raise awareness on its root cause, namely structural gender inequality and discrimination. States should develop and put in place measures to protect them and enable them to do their work.105
Additionally, States should join efforts with leaders at the national and local level, including traditional and religious leaders, who may be more knowledgeable about local sensibilities and customs. States should encourage them ‘to play a more active role in sensitizing communities on sexual violence to avoid marginalization and stigmatization of victims, to assist with their social reintegration, and to combat a culture of impunity for these crimes’.106
III.8 States should incorporate a gender perspective in peacekeeping operations and training to prevent and respond to CRSV🔗
The Council has expressed support for measures ‘to incorporate a gender perspective into peacekeeping operations’.107 In particular, it has urged the Secretary-General to ensure that, where appropriate, ‘field operations include a gender component’,108 as well as to promote the inclusion of women in peacekeeping missions. The Council has recognised that women and children may feel more secure working with and reporting abuse of women in peacekeeping missions.109 This could help peacekeeping and humanitarian personnel to prevent, recognise and respond to sexual violence and other forms of violence against civilians.110 While in principle this obligation concerns the UN only, it also encompasses duties of and recommendations addressed to States acting in their capacity as Members of the UN.
Accordingly, Member States should incorporate guidelines and materials on the protection, rights and the particular needs of women ‘into their national training programmes for military and civilian police personnel in preparation for deployment’.111
The Council has also proposed to implement a ‘policy of zero tolerance of sexual exploitation and abuse in United Nations peacekeeping operations’.112 Troop- and police-contributing countries should ‘take appropriate preventative action, including pre-deployment and in-theater awareness training, and other action to ensure full accountability in cases of such conduct involving their personnel’.113
Further, troop- and police-contributing countries should heighten awareness and the responsiveness of their personnel participating in UN peacekeeping operations to protect civilians, including women and children, and prevent sexual violence against women and girls in conflict and post-conflict situations, including wherever possible through the deployment of a higher percentage of women peacekeepers or police.114
In this regard, States should strengthen the capacity of the security and defence sector to prevent sexual violence, and have ‘the military, police, border guards and other government security and defense forces’ establish specific action plans to that end.115
III.9 States should support women organisations’ gender-sensitive efforts to address CRSV🔗
To promote the equal and full participation of women, States should promote and empower women, and support women’s organisations and networks.116 State support should encompass ‘voluntary financial, technical and logistical support for gender-sensitive training efforts’,117 including efforts undertaken by funds and programmes, such as the United Nations Fund for Women and the United Nations Children’s Fund.118
States should continue to support gender-sensitive efforts in all post-conflict peacebuilding and recovery processes and sectors,119 and support such programmes through international development cooperation relating to women’s empowerment and gender equality.120
Justice and Accountability🔗
III.10 States must promptly and ethically investigate CRSV🔗
Prompt investigations. States should strengthen access to justice for women in conflict and post-conflict situations, including through the prompt investigation of sexual and gender-based violence perpetrated by either civilians or military personnel.121 National authorities should ‘strengthen legislation to foster accountability for sexual violence’.122 The domestic investigation and judicial systems of Member States have a critical role in prosecuting those responsible.123
In particular, States must make and implement specific commitments on timely investigation of alleged abuses to hold perpetrators accountable.124 Consistent and rigorous investigations of sexual violence crimes are critical to deterrence and prevention;125 States should challenge the perception that CRSV is a cultural phenomenon or an inevitable consequence of war or a lesser crime.126
Ethical investigations. Several tools have been established to provide guidance on ethical and effective evidence collection and prosecution efforts across jurisdictions, including the Handbook for United Nations Field Missions on Preventing and Responding to Conflict-Related Sexual Violence (2020), the International Protocol on the Documentation and Investigation of Sexual Violence in Conflict (2017), the Global Code of Conduct for Gathering and Using Information about Systematic and Conflict-Related Sexual Violence (Murad Code) (2022) and the WHO Ethical and Safety Considerations for Interviewing Trafficked Women (2003):127 States should implement them while investigating CRSV. In doing so, States should also adopt a framework of cooperation to investigate and prosecute CRSV with the Special Representative.128
III.11 States must prosecute CRSV🔗
States have a responsibility to end impunity and to prosecute those responsible for genocide, crimes against humanity, and war crimes, including those relating to sexual and other violence against women and girls.129 ‘Ending impunity is essential if a society in conflict or recovering from conflict is to come to terms with past abuses committed against civilians affected by armed conflict and to prevent future such abuses’.
To that end, States may consider a variety of justice and reconciliation mechanisms, ‘including national, international and “mixed” criminal courts and tribunals and truth and reconciliation commissions’.130 Such mechanisms can promote not only individual responsibility for crimes, but also peace, truth, reconciliation and the rights of victims.131 Civilian superiors and military commanders have a responsibility to use their authority and powers to prevent sexual violence, including by combating impunity.132
However, the Council has noted with concern that only a limited number of perpetrators of CRSV have been brought to justice,133 and that, in armed conflict and post-conflict, national justice systems may be significantly weakened.134 States should adopt ‘a comprehensive approach to transitional justice in armed conflict and post-conflict situations, encompassing the full range of judicial and non-judicial measures, as appropriate’.135 More must be done ‘to ensure that transitional justice measures address the full range of violations and abuses of women’s human rights, and the differentiated impacts on women and girls of these violations and abuses as well as forced displacement, enforced disappearances, and destruction of civilian infrastructure’.136
III.12 States should refrain from using amnesty provisions in cases of CRSV🔗
CRSV may amount to a war crime, a crime against humanity, or a constitutive act with respect to genocide.137 In those cases,138 States should ‘ensure that all victims of sexual violence, particularly women and girls, have equal protection under the law and equal access to justice’,139 and exclude the application of amnesty provisions.140
The Special Representative has similarly stressed that addressing CRSV includes ‘ensuring that amnesties for sexual violence crimes are explicitly prohibited’.141
III.13 States should undertake comprehensive legal and judicial reforms to ensure that victims/survivors of CRSV have access to justice🔗
States should undertake comprehensive legal and judicial reforms in conformity with international law to strengthen legislation and foster accountability for sexual violence.142 Reforms should be implemented without delay to bring perpetrators of CRSV to justice and to ensure that survivors ‘have access to justice, are treated with dignity throughout the justice process and are protected and receive redress for their suffering’.143
Reforms may include, if not yet established, victim and witness protection laws, and provide, where appropriate, legal aid for victims/survivors. Additionally, States may establish specialised police units and courts to address CRSV and should remove procedural impediments to justice for victims such as:
- Restrictive limitation periods for filing claims;
- Corroboration requirements that discriminate against victims as witnesses and complainants;
- Exclusion or discrediting of victims/survivors’ testimony by law enforcement officials and within judicial and other proceedings; and
- Lack of facilities for closed hearings.144
Equal rights of victims/survivors of CRSV. In national legislation, States should recognise the equal rights of all individuals affected by CRSV, ‘including women, girls and children born of sexual violence in armed conflict’, in accordance with their obligations under the Convention on the Elimination of All Forms of Discrimination against Women and the Convention on the Rights of the Child.145
In particular, States should address the obstacles in accessing justice in conflict and post-conflict settings faced by women, girls and their children born as result of CRSV (such as ‘economic and social marginalization, physical and psychological injury, statelessness, discrimination and lack of access to reparations’).146 They should do so through legal and judicial reforms to make the legal, judicial and security sectors gender-responsive.147
Humanitarian Response🔗
III.14 States should provide victims/survivors of CRSV with appropriate, comprehensive care🔗
States should support the development and strengthening of national institutions’ capacities, in particular of judicial and health systems, and of local civil society networks in order to provide sustainable assistance to victims of sexual violence in armed conflict and post-conflict situations.148
States should ensure that victims/survivors of sexual violence, ‘committed by certain parties to armed conflict, including non-state armed groups designated as terrorist groups’, have access to national relief and reparations programmes, as well as health care, psychosocial care, safe shelter, livelihood support and legal aid.
Services should include ‘provisions for women with children born as a result of sexual violence in conflict, as well as men and boys who may have been victims of sexual violence in conflict including in detention settings’.149 Ideally, this will ‘contribute to lifting the sociocultural stigma attached to this category of crime and facilitate rehabilitation and reintegration efforts’.150
In consultation with women’s organisations, States should ensure that services address women’s and children’s needs and priorities by covering, among other things, ‘support for greater physical security and better socio-economic conditions, through education, income generating activities, access to basic services, in particular health services, including sexual and reproductive health and reproductive rights and mental health’,151 ‘including regarding pregnancies resulting from rape’.152
In light of the link between CRSV and HIV infections, and the disproportionate burden of HIV and AIDS on women and girls as a persistent obstacle and challenge to gender equality, States should ‘support the development and strengthening of capacities of national health systems and civil society networks in order to provide sustainable assistance to women and girls living with or affected by HIV and AIDS in armed conflict and post-conflict situations’.153
Reparations🔗
III.15 States should provide victims/survivors of CRSV with reparations🔗
States should provide victims/survivors of CRSV with reparations,154 in accordance with the relevant provisions of international law ‘on the right to reparations for violations of individual rights’.155 Such provisions cover compensation, restitution, satisfaction, guarantees of non-repetition,156 and rehabilitation of survivors.157 If States consider it necessary, they may request support from the UN in this regard.158
Note to reader
Readers should refer to the “International Human Rights Law” chapter, subchapter on the “Convention against Torture” to find a detailed explanation of the various forms of reparations, when they are appropriate, and how they are intended to remedy the harms caused in direct favour of victims/survivors. Additional resources on reparations are available in the “Further Readings” chapter.
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