Committee Against Torture Decides First Complaint on Sexual Violence in Conflict
The United Nations Committee Against Torture (CAT) issued its first decision against the State of Bosnia and Herzegovina, finding that rape and other acts of sexual violence constitute torture under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the Convention), and ordering the State to pay “fair and adequate compensation” and provide free medical and psychological care to the victim. See Committee Against Torture, Mrs. A v. Bosnia and Herzegovina, Communication No. 854/2017, Views of 22 August 2019, UN Doc. CAT/C/67/D/854/2017. This decision, which concerns the rape of a Bosnian woman in the early 1990s during the Bosnian war, is the first CAT decision to examine a State’s responsibilities with respect to sexual violence committed during a period of internal armed conflict. [Trial International] In deciding Mrs. A’s complaint, the Committee applied the standards set out in earlier general comments and concluding observations, and clarified that States must ensure redress – including compensation – for victims of torture, regardless of an individual perpetrator’s ability to pay or statutes of limitation on such claims. See Mrs. A v. Bosnia and Herzegovina, Views of 22 August 2019, paras. 7.5-9.
In 1993, an armed soldier broke into the complainant’s house, forced her into his vehicle at gunpoint, and raped her twice at a nearby bus station. See id. at para. 2.2. At the time of the rape, the complainant, Mrs. A, was living with her young daughter in Semizovac, in an area under the control of the Republika Srpska forces. See id. at para. 2.1. The complaint noted that during this time, minorities in the area lived in a “constant state of fear” due to widespread threats and violence at the hands of State officials. See id. The violence she suffered, including becoming pregnant with her rapists’ child and the termination of that pregnancy, left Mrs. A with severe psychiatric conditions, including permanent personality disorder and chronic post-traumatic stress disorder, which have substantially and permanently diminished her quality of life. See id. at para. 2.3. In November 2014, the Prosecutor’s Office indicted the perpetrator, Slavco Savic, for war crimes and, in June 2015, the Court of Bosnia and Herzegovina Section I for War Crimes found him responsible for the rape and guilty of war crimes, sentencing him to eight years in prison and ordering him to pay compensation to Mrs. A. See id. at para. 2.4-2.5. An appellate court upheld the judgement, but the perpetrator did not have the money to pay, and Mrs. A never received compensation from him as an individual or from the State. See id. at para. 2.5.
Prior to considering the merits of the complaint, the CAT first assessed whether or not the complaint met the requirements for admissibility established under Article 22 of the Convention. See id. at para. 6.1. The CAT considered whether the complainant had exhausted domestic remedies and whether the facts alleged occurred before the Convention entered into force for the State party (ratione temporis jurisdiction). See id. at paras. 6.1-6.4. While the State did not challenge the complainant’s exhaustion of domestic remedies, the CAT clarified that, when one remedy has been exhausted, a complainant is not required to exhaust “alternative legal avenues” if the results would have been substantially the same. See id. at paras. 6.2, 6.4. With respect to the Committee’s ratione temporis jurisdiction (the crimes alleged occurred after the Convention came into force in the State), the CAT determined that while the rape and sexual violence alleged occurred prior to the State accepting the Committee’s competence, the domestic court’s 2015 decision finding the perpetrator guilty of war crimes and ordering him to pay the complainant damages was issued after the State party’s declaration under Article 22 of the Convention came into effect. See id. at paras. 2.4-2.5, 6.3. The CAT concluded that it had ratione termporis jurisdiction given that the State allegedly failed to fulfil its obligations to ensure the complainant’s right to “fair and adequate compensation” as a result of the unenforceability of the domestic court’s 2015 judgment. See id. at para. 6.3.
Committee’s Findings on the Merits
The complaint alleged that Mrs. A suffered a violation of Article 14(1) (the right to fair and adequate compensation) in conjunction with Article 1(1) (act of torture) due to the State’s failure to ensure that its legal system provides adequate redress and compensation to victims of torture. See id. 7.2, 8. The CAT first acknowledged that the rape and other acts sexual violence perpetrated against Mrs. A amounted to torture within the meaning of Article 1 of the Convention, and stated that States have an obligation to provide compensation for acts of torture under Article 14(1). See id. at paras. 7.3-7.4. The CAT considered whether the State had met its obligations under Article 14(1) and found that the State had failed to “adopt adequate legislation and develop law enforcement practice[s]” to ensure that victims of torture are able to obtain the redress and compensation to which they are entitled. See id. at para. 7.5.
The obligation to provide redress under Article 14 includes procedural and substantive obligations. See id. at para. 7.5. Procedural obligations refer to effective and accessible complaint mechanisms for victims. See id. The CAT explicitly indicated that due to the ongoing suffering caused by torture, statutes of limitation for acts of torture are fundamentally incompatible with State procedural obligations to provide redress under the Convention. See id. Additionally, the CAT explained that the obligation to provide redress requires States to address “all harms suffered” and to provide “restitution, compensation, rehabilitation of the victim and measures to guarantee that there is no recurrence of the violations,” depending on the specific facts of a case. See id. In this case, the CAT found that while the domestic court issued a judgment in favor of the complainant, the perpetrator did not have the financial means to provide compensation and the complainant was limited in her ability to bring a civil claim for damages given the statute of limitations applicable to her case. See id. at para. 7.6. Thus, the CAT found that the State violated Article 14(1) and Article 1(1) of the Convention. See id. at para. 8.
The CAT ordered Bosnia and Herzegovina to implement four measures to meet its obligations under the Convention: 1) ensure Mrs. A is appropriately compensated; 2) ensure her access to free physical and mental healthcare; 3) issue public apologies; and, 4) implement an “effective reparations scheme,” pursuant to previously issued concluding observations, in order to ensure that all victims of war crimes have access to effective redress, and to implement a legal framework that sets out clear criteria for assigning the status of war crimes victims and their specific rights as victims. See id. at para. 9. The State has 90 days from the time the decision was transmitted to report to the Committee on its progress. See id.
The CAT is a treaty body within the United Nations human rights system and is mandated to oversee the implementation of the Convention against Torture through the review of State party reports on implementation, individual complaints, inter-State complaints, and inquiry requests. See IJRC, Committee Against Torture. The Committee also interprets the Convention against Torture through the issuance of its general comments, among other means. Under its individual complaints procedure, individuals may themselves submit a complaint outlining their case, or civil society organizations may bring cases on behalf of victims. See id. To date, there are 167 States parties to the Convention against Torture and 68 States that have accepted the CAT’s individual complaints procedures under Article 22 of the Convention against Torture. See UN Treaty Collection, 9. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
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