OHCHR
FACT SHEET
2
IMPUNITY AND
THE PROSECUTION OF SEXUAL VIOLENCE
International Women’s Day, 8 March
2007
“Ending Impunity for Violence against Women and
Girls”
Impunity is widely understood as
“exemption from punishment, harm or loss”. It is in essence the avoidance of any
form of responsibility and accountability for crimes committed. The term has
been most used in relation to “serious crimes under international law,” which
includes a Set of Principles to Combat Impunity established to guide States on
how they should ensure that crimes are punished. As set forth in these
principles, victims of gross human rights violations, such as sexual violence,
and their families have a right to justice, a right to reparations and a right
to know the truth about the circumstances of these violations. Guaranteeing
these rights is one step forward to ending impunity for crimes of sexual
violence.
Previous court judgements that arose
from international armed conflicts have provided definitions of key offences,
and developed the bases of individual criminal liability for serious crimes such
as genocide or torture. The Rome Statute of the International Criminal Court
considers several crimes of violence against women as war crimes and crimes
against humanity. “Rape, sexual slavery, enforced sterilization, or any other
forms of sexual violence of comparable gravity” are considered as war crimes. If
these acts were committed as part of a massive or systematic attack on a
civilian population, they constitute crimes against humanity.
Ad-hoc tribunals created by the
Security Council, such as the International Criminal Court for former Yugoslavia
(ICTY), and the International Criminal Court for Rwanda (ICTR), have brought the
law forward and helped shift the perception of rape as a “crime of honour”
against the woman’s partner or her community, to the recognition that it can
constitute torture. Women are no longer considered as objects, but as
individuals with autonomous rights and the State has an obligation to ensure
that she can claim them.
Still, it is estimated that less
than 5 percent of rape prosecutions lead to convictions globally today, partly
because the majority of cases place emphasis on the conduct of the woman and not
on that of the perpetrator. Whilst progress has been made under international
humanitarian law, consent can remain a determining factor.
As the justice system under
international criminal law is adversarial, it still requires individual
testimony and cross examination. If victims or witnesses cannot appear in court
- because they are unable to access formal justice, or because of fear of
stigmatisation from their community or of re-living the trauma of their ordeal -
perpetrators are likely to remain free and thus to enjoy
impunity.
The International Criminal Court was
put in place as recourse for prosecutions of crimes when States were unwilling
or unable to ensure accountability.
This could be a stepping stone for reducing the climate of impunity for
crimes of sexual violence against women. The application of the Set of
Principles to Combat Impunity should not be exclusive to conflict or
post-conflict situations, but should also be applicable to everyday human rights
violations: it behoves States to protect victims and ensure that all forms of
crimes of violence against women and girls are prosecuted effectively.