UNHCR's increased involvement, in cooperation with other United Nations and international organizations, in providing humanitarian assistance to the victims of conflict and civil strife in their own countries has provided a new perspective on the problem of rape and other human rights abuses as causes of refugee flight, and complemented the Office's considerable experience in monitoring the safety of returning refugees in the context of voluntary repatriation. In parts of the former Yugoslavia, for example, UNHCR is present in the field providing humanitarian assistance not only to refugees and the displaced, but also to the local population, including people who are under military siege or under a direct threat of persecution. In Somalia, the effective disappearance of government authority has left the civilian population, especially women and children, exposed to abuses of all kinds at the hands of armed bands. These situations pose in the starkest terms the question of how refugee flows can be prevented and how the right of people to remain in safety in their homes can be defended, when the local authorities are unable or unwilling to ensure respect for, and in the worst cases even encourage and abet, violations of the most fundamental human rights.
The two extreme examples just cited demonstrate the need for preventive action to be taken before situations of ethnic, religious or political tension and discrimination degenerate into the wholesale human rights abuses and generalized violence that too often involve attacks on women. International monitoring of human rights can be valuable in providing early warning of such situations and allowing an opportunity for remedial action, which may involve preventive diplomacy as well as advice and assistance to the governments concerned. International observers have also been deployed with considerable success and with the support of the authorities to help ensure the security of returning refugees as well as local populations and the internally displaced in connection with UN-sponsored peace plans and comprehensive regional arrangements. In the contexts both of preventing displacement and promoting the solution of voluntary repatriation, protecting women and girls against sexual violence requires promoting respect for the human rights of the members of the communities in which they live. Where sexual violence against women is a manifestation of conflicts between different groups in society, prevention may require efforts to achieve reconciliation between those groups, a task which clearly requires comprehensive and integrated approaches over a very long-term.
While UNHCR's experience demonstrates that international presence can be of crucial importance in protecting human rights, it also shows that when governments or de facto authorities themselves sponsor or condone sexual violence as a means of persecuting particular groups, international monitoring and humanitarian assistance alone may not be sufficient to prevent atrocities, including mass rape. The protection of human rights, including protection against sexual violence, in such cases may require stronger political measures. The decision of the UN Security Council to establish an international tribunal to prosecute violations of international humanitarian law in the case of the former Yugoslavia suggests an increasing willingness on the part of the international community to contemplate such measures.
Following are several ways in which states can contribute to preventing and combatting sexual violence prior to and during flight as well as in countries of asylum:
(a) Ratify, without reservation, and ensure full implementation of the Convention relating to the status of refugees (1951) and its 1967 Protocol relating to the Status of Refugees, the Geneva Conventions of 1949 and their two Additional Protocols, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, as well as the Convention for the Elimination of All Forms of Discrimination against Women;
(b) Ensure diligent enforcement of national laws regarding sexual violence, in accordance with the relevant international legal obligations of the state concerned;
(c) Ensure application of the state's international legal obligations as regards non-discrimination, the equality of men and women, the administration of justice and the right of every human being to security of person, including freedom from torture or other cruel, inhuman or degrading treatment or punishment;
(d) Guarantee the implementation of legal remedies, as well as ensure prompt and proportional disciplinary action, in cases of abuse of power, corruption or lack of discipline by government employees resulting in sexual violence;
(e) Strengthen efforts to ensure that police and armed forces respect the right of all individuals to security of their person, including protection from sexual violence, in peacetime, during international or internal armed conflict, and in situations of internal tension. To this end, train all military and security forces as well as decision-makers whose actions directly affect the lives and security of refugees to understand the causes of, to prevent, as well as to take appropriate remedial and protective action in instances of sexual violence. Application of the UN Code of Conduct for Law Enforcement Officials, the Standard Minimum Rules for the Treatment of Prisoners, and national codes of conduct for the military would contribute significantly to such efforts;
(f) In cooperation with relevant international organizations, the ICRC and NGOs, promote and disseminate the principles of international human rights, humanitarian and refugee law relevant to the protection of women and children, including refugees, returnees and the internally displaced;
(g) Ensure that the police, military, immigration authorities and refugee status determination bodies who come into contact with detainees, persons in flight, refugees or returnees deploy staff, including women, who are trained and authorized to take measures to prevent and address the sexual abuse to which these groups may be subject;
(h) Afford access for UNHCR and other relevant agencies to asylum-seekers and refugees from the first moment of their arrival in the country of refuge;
(i) Ensure access to appropriate and timely medical and psycho-social support for victims of sexual violence and their families, with a view to remedying trauma, as well as preventing its exacerbation;
(j) Ensure respect for the confidentiality of information provided for whatever purpose by victims of sexual violence about their cases;
(k) Facilitate the filing and investigation of complaints of sexual abuse, including affording protection to victims and witnesses where revealing such abuse might result in reprisals or in some other way worsen the plight of the victim
(l) Ensure a thorough knowledge and application of the Guidelines by all persons directly involved in, or taking decisions affecting, the protection of refugee and/or returnee women and girls;
(m) At every stage of a refugee situation, ensure thorough documentation of all allegations of sexual violence with a view to implementing preventive, remedial and deterrent measures, addressing the individual needs of the victims, and, where relevant, compiling information helpful for the evaluation of future applications for refugee status;
(n) Avoid the detention or confinement of refugees or asylum-seekers in closed camps and allow refugees freedom of movement and residence to the extent possible in accordance with Article 26 of the 1951 Convention, international human rights norms and Executive Committee Conclusions No. 22(XXXII) on the Protection of Asylum-Seekers in Situations of Large-Scale Influx and No. 44(XXXVII) on Detention of Refugees and Asylum-Seekers;
(o) In the context of refugee status determination, recognize as refugees those women or girls seeking asylum who have suffered, or have a well-founded fear of suffering, sexual violence because of their race, religion, nationality, political opinion or membership in a particular social group, when the government of their country of origin is unwilling or unable to protect them from such abuse; and
(p) Consider, as necessary and appropriate, victims of sexual violence, including refugees forced into prostitution, as persons of special concern both with respect to assistance and the search for durable solutions.