1. Module 5 State Responsibility INTERNATIONAL PROTOCOL
PART III – SEXUAL VIOLENCE UNDER INTERNATIONAL LAW
PAGES 64-73
Training Materials on the International Protocol
© Institute for International Criminal Investigations 2018

2. Session objectives
Explain how sexual violence can give rise to state responsibility
Identify the substantive and procedural violations of human rights law that sexual violence can give rise to
Recognise the information which may help establish a violation of a state’s obligations
Training Materials on the International Protocol
© Institute for International Criminal Investigations 2018

3. Sources and key features of
state responsibility
International human rights law lays down obligations for states to respect, protect and fulfil a wide range of rights guaranteed by various human rights treaties and under customary international law
Sexual violence can give rise to violations of international human rights law and engage a state’s responsibility for their actions or omissions
State responsibility is not of a criminal nature; it can arise both in the context of conflict or during peacetime
Training Materials on the International Protocol
© Institute for International Criminal Investigations 2018

4. Basis of state responsibility
Actions or omissions of state agents
Actions or omissions of persons acting with the state’s authorisation, acquiescence or support AND
States can be held responsible for
Failure to prevent, protect or respond to violations committed by state and non-state actors where the state knew or should have known about their actions
Under their due diligence responsibility for
© Institute for International Criminal Investigations 2018

5. What are states’ obligations?
States have a number of international obligations in relation to the act of sexual violence and how they respond to it, which can be summarised as follows:
A. In relation to the act itself
1. Prevention
B. In relation to the response
2. Investigation and identification of those responsible
3. Prosecution and sanction of those responsible
4. Adoption of adequate measures of reparation
Training Materials on the International Protocol
© Institute for International Criminal Investigations 2018

6. A. State responsibility in relation to the act
Different types of actors may commit acts of sexual violence which may give rise to state responsibility:
Government officials
Military
Police
Other official state agents
State contractors or operatives
Private military/security agents contracted by the state
Other persons acting with the state’s authorisation, acquiescence or support
Militia groups or private persons
If the army/police fails to take action to protect known at-risk individuals
Or the state otherwise fails to act with due diligence under its duty to protect persons under its jurisdiction
© Institute for International Criminal Investigations 2018 6

7. © Institute for International Criminal Investigations 2018
1. Obligation to prevent
Adopt criminal laws codifying violations such as rape in line with international standards and sanctions commensurate with the gravity of the crime
Develop awareness-raising and other large scale media campaigns (e.g. “zero tolerance” campaigns; national days of action against violence against women; involve men/boys in prevention)
Provide training for specific professional groups (army, police, prosecutors, members of the judiciary as well as medical personnel)
Implement vetting programmes to exclude from public office and security forces those associated with sexual violence and other serious human rights violations
Uphold the principle of command responsibility for sexual violence committed by the military and adopt necessary legislation
© Institute for International Criminal Investigations 2018

8. B. State responsibility in relation to the response
Examples of acts or omissions relating to a state’s response to sexual violence which may give rise to its responsibility include:
Failure to launch an investigation ex officio
Failure to conduct an effective investigation
Lack of indepen-dence
Failure to provide access to health care
Failure to provide adequate remedy
Inadequate sanctions
Exclusion of victims from reparations design
Revictimiza-tion during proceedings
Training Materials on the International Protocol
© Institute for International Criminal Investigations 2018 8

9. 2. Obligation to investigate
To be in line with international standards, CARSV investigations must be:
Prompt ex officio response by investigative authorities is essential in maintaining public confidence
Prompt
Authorities must diligently take all available reasonable steps to secure evidence
Effective/
thorough
Those carrying out the investigation must be hierarchically and practically independent from those implicated
Independent
Impartiality presupposes lack of pre-conceived ideas and prejudice by those carrying out the investigation
Impartial
© Institute for International Criminal Investigations 2018

10. 3. Obligation to prosecute
and sanction
States must adopt a number of measures to remove potential obstacles to their obligation to prosecute and sanction those responsible for CARSV, including ensuring that:
Perpetrators of gross human rights violations, including torture and rape, cannot benefit from any amnesty or similar measures aimed at excluding their criminal responsibility or sanction (though the issue of amnesty can be controversial)
Statutes of limitations in criminal proceedings cannot be applied
The fact that the perpetrator of violations acted on the orders of his or her government or of a superior does not exempt him or her from responsibility – this may be regarded as attenuating circumstances
Challenging legal and procedural obstacles denying victims access to justice, International Protocol Chapter 5, Box 3
© Institute for International Criminal Investigations 2018

11. 4. Obligation to adopt adequate measures of reparation
Module 6 - Reparations
Even when the crimes were committed by non-state actors, states have the obligation to provide victims of CARSV adequate remedy, including gender-sensitive reparations, which comprise:
Restitution
Compensation (covering material and non-pecuniary damages)
Rehabilitation
Satisfaction, including restoration of dignity and reputation and
Guarantees of non-repetition
Victims should be involved in the design of programmes of reparations from the outset
Reparations should strive to be “transformative” e.g. allow women and other victims to improve or at least consolidate their position in society
What constitutes adequate Remedy and Reparation, International Protocol Chapter 6, Box 2
© Institute for International Criminal Investigations 2018

12. What happens in case of violations?
Module 3 – Accountability Avenues and Remedies
Module 6 - Reparations
A number of mechanisms have been established at the regional and international level to monitor the implementation by states of their international obligations
When national remedies are not effective, under certain conditions, regional and international mechanisms may offer an appropriate venue to fulfil the rights to justice, truth and reparation of victims of human rights violations, including torture and rape
YOU SHOULD FIND OUT WHICH HUMAN RIGHTS MECHANISMS ARE RELEVANT FOR YOUR CONTEXT
Training Materials on the International Protocol
© Institute for International Criminal Investigations 2018

13. Elements of human rights violations
International Protocol, pages 70-72
Module 2 – Understanding Sexual Violence (D Impact)
Module 4 – Individual Criminal Responsibility and Module 6 - Reparations
Module 10 – Type of Evidence and Annex 1 – Evidence Workbook
To hold a state accountable for a human rights violation, you will need to prove two categories of legal elements
WHICH RIGHTS WERE VIOLATED?
What happened?
What was the context?
HOW IS THE STATE RESPONSIBLE?
IMPACT EVIDENCE
What were the consequences for the victim?
© Institute for International Criminal Investigations 2018

14. A. Which rights were violated?
International Protocol, pages and Annex 1 – Evidence Workbook
You should gather information to demonstrate that:
i. A particular act of sexual violence was committed
ii. Such act resulted in the violation of one or more substantive and/or procedural rights
iii. The physical, mental and socio-economic harm caused to the victim
The specific rights protected and the legal elements to establish may vary between different human rights mechanisms
You must find out the applicable legal framework
© Institute for International Criminal Investigations 2018

15. A. Which rights were violated?
International Protocol, pages and Annex 1 - Evidence Workbook
Non-exhaustive list of possible violations
Substantive violations
Prohibition of torture/ill-treatment
Right to physical integrity
Right to personal security
Right to liberty; life; family life
Right to health; education; work
Right to non-discrimination; reparation
Procedural violations
Right to a prompt/ effective/independent/ impartial investigation
Right to information about reparation mechanisms
Other procedural components linked to the justiciability of substantive rights
Rape as a form of torture or other ill-treatment, International Protocol Chapter 5, Box 4
© Institute for International Criminal Investigations 2018

16. A. Which rights were violated?
International Protocol, pages and Annex 1 - Evidence Workbook
Whether in conflict or peacetime, torture and other ill-treatment are absolutely prohibited as a matter of customary international law
Rape – whether committed by a state or non-state actor – reaches the minimum level of severity per se to amount to prohibited ill-treatment, triggering states’ obligations to prevent and respond
When committed by state agents or persons acting with the authorisation, acquiescence or support of the state, rape and other forms of sexual violence can be considered as a particularly grave form of torture
Rape as a form of torture or other ill-treatment, International Protocol Chapter 5, Box 4
Case law examples – rape as a form of torture or other ill-treatment, International Protocol Chapter 5, Box 5
Training Materials on the International Protocol
© Institute for International Criminal Investigations 2018

17. B. How is the state responsible?
International Protocol, pages and Annex 1 - Evidence Workbook
In addition to points i-iii above, you should also gather information to establish:
iv. The potential actions or omissions of the state and/or non-state actors responsible for the sexual violence or other violations
v. Whether the state complied with its positive obligations to prevent sexual violence and associated violations, including investigating, prosecuting and sanctioning, and providing reparation
Training Materials on the International Protocol
© Institute for International Criminal Investigations 2018

18. B. How is the state responsible?
In order to establish whether the state has complied with its positive obligations, you should find out, whether or not the state has:
Taken appropriate measures aimed at protecting the victim?
Promptly initiated a criminal investigation?
Diligently conducted such investigation?
Provided information to the victims about the progress of the case and allowed them to participate effectively?
Issued a judgment reflecting the gravity of the crime?
Provided adequate reparation?
Ensured access to health care, including sexual and reproductive services?
Taken measures to prevent or remedy discrimination against victims, including in education and at work
Case law example – COHRE v. Sudan: obligation to prevent, investigate and prosecute sexual violence under state’s due diligence responsibility, International Protocol Chapter 5, Box 2
Training Materials on the International Protocol
© Institute for International Criminal Investigations 2018

19. B. How is the state responsible?
International Protocol, pages and Annex 1 - Evidence Workbook
To substantiate a claim that a state violated its obligations, you should endeavour to gather information showing that the state had been informed that sexual violence occurred (e.g. media reports, UN reports, etc.) and did not comply – or not timely and diligently enough – with its obligations of prevention and response
To strengthen a case, you should also gather evidence showing that the victim has been proactive in seeking justice e.g. by contacting/providing information to investigative authorities which should have triggered an investigation
Case law example – COHRE v. Sudan: obligation to prevent, investigate and prosecute sexual violence under state’s due diligence responsibility, International Protocol Chapter 5, Box 2
Training Materials on the International Protocol
© Institute for International Criminal Investigations 2018

20. Analysing a concrete case to assess state responsibility
EXERCISE
After reading the factual part of the case distributed, each group will have to answer the questions below. The designated spokesperson for each group will subsequently present the group’s answers in plenary.
Group 1: If you were to represent the applicant, how would you argue the responsibility of the state involved? Which obligations would you allege as breached?
Group 2: If you were the competent international human rights mechanism seized of the matter, would you hold the respondent state responsible? If so, on which basis? Which measures of reparation would you require? 20
Training Materials on the International Protocol
© Institute for International Criminal Investigations 2018