Access to justice for victims of sexual violence in refugee camps

Abstract

This study investigates the problem of access to justice for female victims of sexual violence (SV) in refugee camps, using South Africa, Tanzania and Uganda in a multiple case study. The

main argument of this study is that female refugees in refugee camps, are not adequately pro- tected by those responsible to safeguard them against sexual violence and the myriad of perpe- trators of such sexual violations may never be apprehended, prosecuted, or convicted. Thus,

refugees who are victims of sexual violence in refugee camps do not even have the opportunity to testify against their assailant. On the order hand, the current UN Refugee Convention 1951 and its Protocol 1967 have no clauses that protect female refugees against sexual violations. Moreover, victims do not have

access to justice in the host states, despite the provision of article 16 of the UN Refugee Con- vention 1951, which provides free access to courts in all contracting states. Article 16 of the

UN Refugee Convention 1951 further proposes that refugees should be accorded the same treatment like the citizens of host states in this respect. The study reveals that sexual violence perpetrated against citizens of contracting states are prosecuted in courts and victims have the opportunity in domestic courts to testify against the assailants. Whereas, refugees who are victims of SV in the states of study are not treated like the citizens who suffered the similar violation as prescribed by article 16 of UN convention of 1951. Since the cases of SV against refugees in the territory are hardly prosecuted, they do not have the opportunity to testify against their assailant.

Therefore, this study recommends that states should be compelled to address the offence of sexual violence against refugees in camps, as part of their international obligation as signatories

to the refugee convention. Through, a thorough investigation and prosecution of SV cases per- petrated against these victims in their territories. So that victims of sexual violence in their territories can also have the opportunity to testify against their assailants like citizens who suf- fer SV in the contracting states. However, if a State is not a party to the convention, that state

should be held responsible through the invocation of complicity to crime and customary inter- national law. This is because the general norm in domestic courts is that, states handle the

prosecution of crime and the enforcement of the rights of their citizenry. The study in addition, recommends an international legal framework in support of the current international refugee mechanism that offers victims of sexual violations in refugee camps, legal protection, and access to justice. The proposed international refugee instrument provides for the enforcement of the rights of refugees who are victims of sexual violence, and remedy and reparations that could mitigate the effects of such violence and encourage those charged with their care to give both physical and legal protection to refugees, in camps, in their territories. In addition, the study also suggests a one stop facility in refugee camps for handling the cases of sexual violence against these victims, thus facilitating access to justice. In addition, the researcher also suggests that states should assume a victim - oriented approach in dealing with sexual violations in their territory. This is because, the current practice of the domestic laws of states, is that victims of crime are used as prosecution witnesses, since crime is against the State and a challenge of the rule of law. Consequently, victims do not have the needed locus standi to access the courts as an injured party to a suit. This can be achieved through the inclusion of a locus standi clause in their various criminal procedure acts, so that victims will have the requisite access to court, become parties to the litigation, as co-prosecutor of their offenders. This can be done, as a paradigm shift from the current practice of the criminal proceedings, so that while the state prosecutor represents the interest of the public and that of the rule of law, the victim will represent themselves and will be given a fair hearing in oreder to assert their rights against their assailant. In this process, victims can also enjoy the services of legal aid as maintained by article 16 of the 1951 UN Refugee Convention.