Background

The Special Rapporteur’s next report will explore challenges, latest developments and best practices concerning the identification, documentation, investigation and prosecution of crimes of sexual torture and other related cruel, inhuman or degrading treatment or punishment committed during war and armed conflicts, and rehabilitation of victims and survivors.

Sexual torture is one of the most egregious harms because it is a form of torture that intrudes into our intimate person. It includes such acts or threats as forced nudity, verbal sexualized threats, sexualized degrading or humiliating mocking and other verbal or physical treatment, sexual assault by touching intimidate parts of the body, digital penetration, forced masturbation, forced insertion of an object into the vagina or anus, oral rape, anal rape and vaginal rape, ejaculation or urination onto the victim, sexual slavery, forced pregnancy and enforced sterilization.

Impunity for such crimes is everywhere. Rape and sexual torture have been weapons of warfare by invading armies and hordes for millennia, and they are still regrettably commonplace in modern day armed conflicts.

Sexual torture is the ultimate expression of power over another, placing the victimized in a position of great vulnerability and powerlessness. Sexual torture involves both physical and psychological pain or suffering, with scars that can last a lifetime requiring specialist rehabilitation. Given the continuing pervasiveness of these crimes, the Special Rapporteur is of the view that there is a need to rethink how these crimes are considered and addressed.

Undoubtedly women and girls bear the greatest brunt of such crimes, being crimes historically and predominantly committed on women’s bodies by male soldiers and other perpetrators. Men and boys are also subjected to such crimes, for many of the same reasons, such as to humiliate or punish them, to exercise power over them, or to strip them of their humanity and dignity. Sexual torture occurs inter alia within places where persons are deprived of their liberty as well as anywhere an official (de jure or de facto) has control over a person, including in homes, hospitals, fields, bomb shelters, or during transport.

Legal protections addressing sexual torture have been long established within international law, as well as in many national jurisdictions. However, and despite the international consensus on the illegality and severity of crimes of sexual torture, many legal, procedural and practical challenges remain in recognizing and preventing them as grave crimes.

Objective and scope

Building on her previous work on the duty to investigate and prosecute crimes of torture (A/HRC/52/30), the Special Rapporteur’s forthcoming report aims to deepen understanding of the specificities and particularities that apply to identifying, documenting, investigating and prosecuting sexual or sexualized forms of torture in armed conflicts, as well as rehabilitation for victims and survivors.

Because of practical, forensic or sociological reasons, the early identification of crimes of sexual torture perpetrated in armed conflicts can be one the biggest obstacles to later effective investigations and prosecutions. There are multiple challenges to documenting and investigating such crimes, including security challenges of ongoing armed conflicts, lack of legal and procedural frameworks for handling such cases, or inadequate technical expertise, as well as the psychological trauma affecting victims and witnesses.

Whilst the Special Rapporteur recognizes that sexual violence and torture occurs in many contexts, the focus of her report will be on sexual torture and other related cruel, inhuman or degrading treatment or punishment, perpetrated during war or armed conflicts. For this reason, the report will not cover other forms of sexual torture which may also satisfy the torture definition such as, inter alia, domestic violence and female genital mutilation.

The Special rapporteur seeks to identify the best ways in both policy and practice, as well as in national legal frameworks of overcoming the obstacles, impediments and challenges to effective documentation, investigation and prosecution of crimes of sexual torture in armed conflicts with the aim to bring the best possible response for the victims and survivors of such crimes.

Questionnaire

The Special Rapporteur seeks contributions from States, including the specific State agencies involved in the identification, documentation, investigation, and prosecution of crimes of sexual torture, as inter alia civilian and military law enforcement/investigators/prosecutors, forensic (legal-medical services), medical and health services, judicial, and oversight institutions.

She would further welcome contributions from national human rights institutions, national preventive mechanisms or other monitoring bodies, bodies involved in tracing missing or disappeared persons, and civil society organisations and academics, including those representing the views and experiences of people who have been directly impacted by crimes of sexual torture in armed conflicts.

The Special Rapporteur would be particularly interested in receiving information on the following as it relates to sexual torture and related ill-treatment, in armed conflicts:

1. Challenges, impediments and obstacles to effective identification, documentation, investigation and prosecution of crimes of sexual torture and related ill-treatment: What are the main impediments preventing full and prompt investigations and prosecutions into allegations of sexual torture and related crimes committed during an armed conflict – consider matters such as gaps in civil or military legal and regulatory frameworks (see next), political-cultural-leadership, institutional, sociological, psychological, practical, forensic, health, other challenges? What are some examples of the strategies or good practices for addressing these challenges?

2. Regulatory frameworks – civilian and military codes: Does the national legislative or regulatory framework account for sexual torture inflicted during armed conflict?

   Sub-questions: How is torture of a sexual nature (and related forms of cruel, inhuman or degrading treatment or punishment, as applicable) prohibited and criminalized in national legislation? Please refer to both general criminal code, as well as any applicable military laws.

   Is “sexual torture” defined explicitly in national law? If so, is it a separate offence, or has your national law defined ‘discrimination’ as contained in the definition of torture in Article 1 of the UN Convention against Torture?

   If there is no explicit crime of sexual torture, does the general crime of torture include the sexualized nature of the torture as an aggravating factor that may increase any criminal penalties? Does the law incorporate any other approaches that specifically address the sexualized nature of the crime?

   Please provide examples (and copies) of national laws, or leading judgments, that criminalize sexual torture (and related forms of cruel, inhuman or degrading treatment or punishment, as applicable), and the penalties applied.

3. Victim participation and protection during investigation and prosecution: What special arrangements (procedures, standards, protocols, good practices) and protections are available for victims of sexual torture and related ill-treatment in armed conflicts? Are there any consultation and/or discussion platforms to enable victims and survivors of sexual torture crimes committed in armed conflicts to actively participate in the design, implementation and evaluation of the legal and/or administrative processes specifically established for justice and reparations of such crimes?

4. Evidence collection and documentation pursuant to the Istanbul Protocol: What are the practical, logistical or other challenges in evidence collection of sexual torture in armed conflict? What good practices are used to address such challenges?

   Please provide examples of the specialized policies, protocols and practices used to identify, document and secure evidence collection in respect of crimes of sexual torture in armed conflict and related ill-treatment and the damages caused to individuals, families, and communities. Please provide information on any specialist skills sets or interviewing techniques applied.

   Has your country recognised the Istanbul Protocol? Have your authorities identified any specific challenges with applying the Istanbul Protocol to victims and survivors of sexual torture or related ill-treatment? What are some of their best practices in implementing the Istanbul Protocol to victims and survivors of sexual torture?

5. Rehabilitation: What specialist rehabilitation approaches and services are provided to victims, witnesses, families and communities that have been impacted by sexual torture and related ill-treatment in armed conflict? How do these differ from other rehabilitation support provided to victims of torture? How do they differ from rehabilitation provided in non-armed conflict situations? How should the nature or process of rehabilitation be tailored to different groups of victims (e.g. take into account intersecting characteristics as sex/gender, age, other health circumstances, civilian versus military victims, etc.), or the types of sexual torture suffered during armed conflict?  How do these relate to the provision of other forms of reparation (compensation, restitution, satisfaction, and non-repetition)?