Conventions
last updated June 15, 2006
 

Early human rights law enacted by the United Nations is relevant to sexual assault. The International Bill of Human Rights consists of The Universal Declaration of Human Rights, adopted by the United Nations General Assembly in 1948, and it’s implementing covenants, the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR), which entered into force in 1976. Also relevant is the Optional Protocol to the ICCPR.  While these documents do not explicitly address sexual assault, they articulate a state's duty to protect fundamental human rights that are commonly violated in sexual assault cases. Those rights include the right to life, the right to physical and mental integrity, the right to equal protection of the laws and the right to be free from discrimination.

The Convention on the Elimination of All Forms of Discrimination Against Women, entered into force in 1981, also does not explicitly include language on violence against women or domestic violence but guarantees the human rights listed above. The Committee on the Elimination of All Forms of Discrimination Against Women (CEDAW) is charged with monitoring implementation of the Convention.  In 1992, CEDAW adopted General Recommendation Number 19, which addresses the Women's Convention's silence on violence and states that gender-based violence is a "form of discrimination which seriously inhibits women's ability to enjoy rights and freedoms on a basis of equality with men." General Recommendation No. 19, Committee on the Elimination of Discrimination Against Women, U.N. Doc A/47/38 (1992). 

The Commission on Human Rights in Resolution 2003/45 on Elimination of Violence Against Women welcomes the Special Rapporteur's 2003 report, condemns all acts of violence against women, and affirms that violence against women constituted a violation of women's human rights. The Commission specifically condemns battering and stresses that "all forms of violence against women occur within the context of de jure and de facto discrimination against women and the lower status accorded to women in society and are exacerbated by the obstacles women often face in seeking remedies from the State." In paragraphs eleven and twelve, the Commission reminds governments of their obligations under the Women's Convention and urges States that have not yet done so to ratify and accede to the Women's Convention and its Optional Protocol. In paragraph fourteen, the Commission stresses that governments "have an affirmative duty to promote and protect the human rights of women and girls and must exercise due diligence to prevent, investigate and punish acts of all forms of violence against women and girls."

 

1907 Hague Convention IV and Regulations
 
 
1949 Geneva Conventions and 1977 Additional Protocols
These conventions create a duty for individuals involved in armed conflicts to abstain from committing sexual violence.  The 1949 Geneva Conventions and the 1977 Additional Protocols apply to situations of armed conflict. When sexual violence occurs during an international or internal armed conflict, it violates international humanitarian law, which is codified in these instruments. In particular, rape and other sexual violence perpetrated against civilians is prohibited by Article 27 of the Fourth Geneva Convention. Article 76 of the first Additional Protocol states that women shall be protected from rape, forced prostitution and any other form of indecent assault. In addition, the Geneva Conventions require humane treatment of protected persons and prohibit torture of both civilians and prisoners of war.
 
1951 Convention Related to the Status of Refugees
as amended by the 1967 Protocol, a refugee is someone who, "owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it." Clearly, this definition excludes many of the refugees and displaced persons who are vulnerable to sexual violence. However, for those refugees who meet the requirements set forth in the Refugee Convention, the Convention provides protection through the prohibition against refoulement. The United Nations High Commissioner for Refugees has recognized that sexual violence is a form of persecution. From Executive Committee of the High Commissioner's Programme, Note on Certain Aspects of Sexual Violence against Refugee Women, 29 (A/AC96/822) (12 October 1993). (PDF, 21 pages). In particular, the Executive Committee has noted that in the conflict in the former Yugoslavia, sexual violence was used as an instrument of persecution. From Executive Committee of the High Commissioner's Programme, Note on Certain Aspects of Sexual Violence against Refugee Women, 10 (A/AC96/822) (12 October 1993). (PDF, 21 pages). Under article 33 of the Convention, States Parties are prohibited from expelling or retuning a refugee to the frontiers of territories where she would face a threat of sexual violence on account of her race, religion, nationality, membership of a particular social group or political opinion.
Convention Against Torture, and Cruel, Inhuman or Degrading Treatment or Punishment
 
Convention on the Elimination of All Forms of Discrimination Against Women
The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) recognizes that women are subject to discriminatory treatment in many parts of the world. Women are also particularly vulnerable to violence and other forms of poor treatment. "In 1992 the Committee on the Elimination of Discrimination against Women (CEDAW) issued a recommendation (General recommendation No. 19) dealing exclusively with violence against women. The Committee stated that gender-based violence is a form of discrimination which seriously inhibits a woman's ability to enjoy rights and freedoms on an equal basis with men." United Nations High Commissioner for Refugees, Sexual Violence against Refugees: Guidelines for Prevention and Response, 40 (1995). (PDF, 56 pages). The United Nations Special Rapporteur has referred to the fact that the CEDAW recognizes that violence directed towards a woman because she is a woman, including acts of sexual violence, represents a form of discrimination that seriously inhibits the ability of women to enjoy fundamental human rights and freedoms. From U.N. Economic and Social Council, Contemporary Forms of Slavery: Systematic rape, sexual slavery and slavery-life practices during armed conflict, 55 (E/CN.4/Sub.2/2000/21) (6 June 2000). (PDF, 36 pages). Article 6 of the CEDAW specifically obliges States Parties to take all appropriate measures, including legislation, to suppress all forms of traffic in women and exploitation of prostitution of women. During situations of armed conflict, refugee women are susceptible to both traffic and forced prostitution, particularly when they are unaccompanied or females heads of households. 
 
Convention on the Rights of the Child
The Convention on the Rights of the Child contains various provisions that either explicitly or implicitly prohibit sexual violence against children. The Convention also recognizes the vulnerability of refugee children, particularly those who have been separated from their families. The Convention on the Rights of the Child has been signed and ratified by every country in the world except for the United States of America and Somalia. Article 34 of the Convention on the Rights of the Child specifically requires States Parties to take measures to protect children from sexual violence. Article 34 provides, "States Parties undertake to protect the child from all forms of sexual exploitation and sexual abuse. For these purposes, States Parties shall in particular take all appropriate national, bilateral and multicultural measures to prevent: a) The inducement or coercion of a child to engage in any unlawful sexual activity; b) The exploitative use of children in prostitution or other unlawful sexual practices; c) The exploitative use of children in pornographic performances and materials." Other provisions of the Convention create obligations for State Parties to protect children from threats that may lead to sexual violence. Article 35 requires States Parties to take measures to prevent the abduction, sale, or traffic in children for any purpose or in any form. Children are particularly vulnerable to abduction, sale, or traffic when their family environment is disrupted, as is often the case in refugee situations. The Convention provides specific protections for refugee children. Article 22 provides that States Parties shall take appropriate measures to ensure that both accompanied and unaccompanied children who either seek refugee status or who are considered refugees in accordance with applicable international and domestic law receive appropriate protection and humanitarian assistance in the enjoyment of rights set forth in the CRC and other international human rights or humanitarian instruments to which the said States are Parties. To this end, the States Parties agree to provide cooperation in efforts taken by the United Nations, other intergovernmental organizations, or non-governmental organizations to protect and assist refugee children and to help trace the parents or other family members of these children. Moreover, unaccompanied children receive further protection from article 20 of the CRC, which entitles children who have been temporarily or permanently deprived of their family environment to special protection and assistance provided by the State.
 
International Covenant on Civil and Political Rights
The ICCPR also articulates a right to liberty and security of person. The UNHCR Executive Committee has asserted that, "[i]n addition to being a serious crime in all countries, rape is a grave violation of the fundamental human right to security of person, including the right not to be subjected to torture or other cruel, inhuman or degrading treatment or punishment." Executive Committee of the High Commissioner's Programme, Note on Certain Aspects of Sexual Violence against Refugee Women, 26 (A/AC96/822) (12 October 1993). (PDF, 21 pages). Furthermore, Article 8 of the International Covenant on Civil and Political Rights prohibits slavery and the slave-trade in all their forms. This includes sexual slavery such as forced prostitution. Moreover, when sexual violence results either directly or indirectly in a loss of life, it violates the right to life enumerated in the ICCPR. This applies to situations when, for example, victims/survivors contract HIV/AIDS as a result of sexual violence.
 
International Covenant on Social and Economic Rights
The International Covenant on Social and Economic Rights provides that the States Parties to the Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health. Victims of sexual violence suffer severe deprivations of their physical and mental health. Sexual assault can result in physical injury, unwanted pregnancy, transmission of sexually transmitted infections and even death. Furthermore, sexual violence can have grave psycho-social affects on victims.