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Introduction

It doesn't matter what you're wearing.
It doesn't matter what your gender is.
It doesn't matter what side of the conflict you're on.
It doesn't matter who your family are.
It doesn't matter if you're a soldier or a civilian.

Sexual violence is never the survivor's fault.1

The Red Line Initiative is rooted in the belief that sexual violence in conflict and as a method of warfare represents a violation of our shared humanity that can no longer be accepted as an unfortunate, but unpreventable part of armed conflict. Rather, it must be prioritised as a wholly unacceptable tactic that has no place in modern warfare.

For States, conflict-related sexual violence (CRSV) is regulated through international humanitarian law (IHL), international human rights law (IHRL), and the United Nations Security Council (UNSC) resolutions under its peace and security authority under the United Nations (UN) Charter. Over the past two decades, for each of these legal frameworks, there have been important advances in clarifying and strengthening States' obligations to prevent, stop, and respond to CRSV.

The Red Line Initiative team has undertaken extensive research and consultations with leading legal experts, focusing on better identifying and understanding the current gaps and fragmentation in the existing international legal frameworks relevant to CRSV. From that process, one of the key insights learned was that there is a need for States to be better aware of their existing obligations.2 For example, while IHRL contains strong binding standards relevant to CRSV, consulted experts noted that some States remain unaware of the scope of their obligations and thus fail, due to this and other reasons, such as lack of political will, to take the steps required of them to meet these standards. Several experts have indicated that this may be due in large part to the fact that these standards are spread out across different documents that are not easily accessible to government officials. It was suggested that a compilation of these standards could support policy makers in ensuring a coherent approach to CRSV through different branches of law and different instruments.

Like all aspects of the Dr. Denis Mukwege Foundation's work, the Red Line Initiative employs a survivor-centred approach that seeks to not only ensure that the law is responsive to the needs and desires of victims/survivors, but also that victims/survivors actively participate in the design and development of education and advocacy tools to realise their legal rights to justice, accountability, and redress.

NOTE TO READERS

In line with the Committee against Torture’s General Comment 3, a person should be considered a victim ‘regardless of whether the perpetrator of the violation is identified, apprehended, prosecuted or convicted’, and regardless of any familial or other relationship between the perpetrator and the victim. The term ‘victim’ also includes ‘affected immediate family or dependants of the victim as well as persons who have suffered harm in intervening to assist victims or to prevent victimization’.

The term ‘survivors’ may, in some cases, be preferred by persons who have suffered harm (hence the use of both in the Guidebook). We recognise and respect that the terms ‘victim’ and ‘survivor’ are without prejudice to other terms which some individuals may use to refer to themselves.

At the June 2022 global SEMA (the global network of CRSV survivors) retreat, a half-day workshop on the Red Line Initiative was held. At the conclusion of the global retreat, SEMA members voted to form a Red Line working group and expressed their strong interest in engaging on the issue of state responsibility with regard to CRSV, including ensuring that States live up to their current international commitments.

From these activities, the Guidebook on State Obligations for Conflict-Related Sexual Violence came to be. The Guidebook compiles the applicable international law and standards relevant to CRSV in order to inform States of their current obligations in a comprehensive manner. It covers State obligations set out in: 1) IHL; 2) IHRL; and 3) UNSC resolutions. It aims to address the awareness gap discussed above and to provide States with an accessible and easy to use tool to ensure that they are meeting their obligations in preventing, stopping, and responding to CRSV under international law. It is also intended to serve as an advocacy tool for survivor groups, CSOs, and NGOs.

1. Methodology

The Guidebook is based on an extensive review of binding sources of international law, including treaties and their protocols, customary law (which is where there is widespread, representative State practice that is accepted by States as being required by law),3 the jurisprudence of international courts and tribunals (which, while binding only on the parties to a case, is nevertheless authoritative), and UNSC resolutions (which are binding on UN Member States).4

Where an obligation is not extensively detailed under binding international law, reference is expressly made to other material from authoritative bodies, such as the UN treaty bodies, which offers avenues as to how an obligation may be best implemented. While not strictly binding, such material remains persuasive. Other material cited in the Guidebook includes, but is not limited to:

  • As regards IHL, the International Committee of the Red Cross (ICRC)'s Commentaries to the Geneva Conventions;

  • As regards IHRL, the General Comments/Recommendations, Decisions/Views, Concluding Observations and other material of the relevant UN treaty bodies. When appropriate, reference has also been briefly made to reports of Special Rapporteurs.

For readers who wish to deepen their understanding of a specific system beyond the sources of law cited, we have also included a "Further Readings" section in the Guidebook.

2. Structure

The Guidebook contains 7 chapters:

  1. Home - In this chapter, you can find a foreword from 2018 Nobel Peace Prize Laureate Dr. Denis Mukwege, background on the Guidebook project, and contact information for the Mukwege Foundation

  2. Introduction

  3. International Humanitarian Law (covering the Geneva Conventions, their Additional Protocols of 1977, customary IHL and other IHL obligations)

  4. International Human Rights Law

    1. At the international level (encompassing the Genocide Convention, the Convention on the Elimination of Racial Discrimination, the International Covenant on Civil and Political Rights, the Convention on the Elimination of Discrimination against Women, the Convention against Torture, the Convention on the Rights of the Child, and the Convention on the Rights of Persons with Disabilities)

    2. At the regional level (including the Council of Europe system, the Inter-American Human Rights system, and the African Union system)

  5. The United Nations Peace and Security framework

  6. Ratification and Enforcement of Treaties - In this chapter, you can explore the available mechanisms of enforcement of State obligations at the international level and the ratification status of treaties by country, including whether a country has deposited any reservations or declarations/understandings to a treaty, whether it has ratified optional and/or additional protocols to the treaty, and whether it has recognised the competence of the expert treaty committee to hear inter-State disputes and/or individual complaints and to conduct inquiries into alleged grave/serious or systematic violations of the concerned treaty

  7. Further Readings - In this chapter, you can explore a thematic library of articles, blogs, and reports by NGOs, experts, academics, and civil society organisations that provide in-depth examination of specific topics relevant to CRSV

All systems analysed in chapters 3-5 contain three sections: 1) Introduction, which provides a general overview of the relevant legal system; 2) Legal Framework, which lists the main treaties and other material specific to that legal system on which our research was based; and 3) Obligations, which details the State obligations to address CRSV under the relevant legal framework.

Additionally, obligations are divided into four thematic categories, namely:

  1. Prevention. "Prevention" refers to the actions that States must take to prevent the (re)occurrence of CRSV;

  2. Justice and accountability. "Justice and accountability" concerns the steps required to investigate/prosecute perpetrators of CRSV and to hold States accountable for violations of their international obligations, as well as to make all justice avenues accessible to victims/survivors;

  3. Humanitarian response. "Humanitarian response" refers to what States must immediately do to alleviate the suffering of victims/survivors of CRSV in a crisis;

  4. Reparations. The 2005 UN General Assembly (UNGA) resolution on Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights and Serious Violations of International Humanitarian Law5 sets out the right of victims/survivors to redress from States.6 The concept of "redress" has two components: substantive, in the form of reparation (restitution, compensation, rehabilitation, satisfaction and guarantee of non-repetition); and procedural, in the form of an effective remedy. "Remedy" relates to ensuring that there is an appropriate legislative framework and institutions to provide for prompt and effective investigations, victim/survivor participation in any proceedings, and, in the case of convictions, prosecution and punishment of those found responsible. In the Guidebook, these procedural aspects of redress are addressed in the "Justice and Accountability" category.

NOTE TO READERS

Some obligations may fall within multiple categories. For ease of reading, the same obligations are not repeated in multiple categories, but this should not be understood as limiting an obligation’s scope to the Guidebook’s categorisation.

3. Scope

As mentioned above, the Guidebook focuses on State obligations to prevent, stop, and respond to CRSV under international law, whether committed by State or non-State, public or private actors. The Guidebook does not cover the (criminal) responsibility of individuals and, as a result, does not have a chapter on international criminal law (ICL).

The focus on certain international legal instruments over others is motivated by the amount of information on CRSV available under each system, and by the authoritativeness of the sources chosen.

Importantly, the Guidebook is descriptive: the Guidebook outlines what State obligations concerning CRSV currently exist under international law and does not purport to provide readers with a more progressive understanding of the law. The Guidebook's content is limited to those obligations already set out by the relevant authoritative instruments and bodies.

NOTE TO READERS

The “Further Readings” chapter of the Guidebook provides resources that explore different legal interpretations and potential reforms to better combat CRSV.

On a final note, the international legal standards on CRSV are not set in stone. As awareness is raised of the damaged inflicted by CRSV on society, the law continues to develop. The Guidebook compiles standards that are relevant at the time of its publication and may, at a future date, require updating.

3.1 International Criminal Law

'Crimes against International Law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of International Law be enforced'.

International Military Tribunal (Nuremberg)7

The absence of a thorough examination of ICL in the Guidebook is not meant to overshadow its impact on the development of international law relevant to the prevention of and response to CRSV. In particular, the various international criminal courts and tribunals,8 as well as national courts,9 have adopted and interpreted identical or similar concepts and obligations under international law, particularly IHL, to punish and elucidate the law on CRSV. Where appropriate, ICL is referred to in the Guidebook.

ICL has played a significant role in holding individuals accountable, and the ability of international criminal courts and tribunals to bring perpetrators to justice is undeniable. However, as also held in the Nuremberg Judgment quoted above: 'international law imposes duties and liabilities upon individuals as well as upon States'.10 While ICL or criminal law generally do not engage the issue of State responsibility, they nonetheless are an important avenue for the enforcement of IHL and IHRL. For example, under IHL and IHRL, States have an obligation to investigate and prosecute CRSV crimes. Domestic criminal courts do not oversee States' compliance with this obligation. Rather, their establishment and functioning represent one of the ways States can fulfil that obligation. The criminalisation of CRSV in domestic legislation and the domestic prosecution of these crimes are directly relevant to the aims of the Guidebook because they constitute one of the most important ways States can meet their obligations under IHL and IHRL.

The existence of international criminal bodies does not exempt States from their obligation to address CRSV first. Domestic proceedings are encouraged, especially due to States' geographic closeness to the violations and victims/survivors, as well as their receptiveness to local sensibilities and politically sensitive matters.

The ICRC has been at the forefront of this conversation, and has recognised that implementing IHL at the domestic level is an essential step towards achieving better respect for IHL and more protection for victims/survivors of armed conflict. For more information, see:

4. Impact

The online availability of an accessible and user-friendly document such as the Guidebook helps consolidate the current international law relevant to CRSV. We hope to increase awareness and understanding by States of their existing obligations under IHL, IHRL, and UNSC resolutions to prevent, stop, and respond to CRSV, while creating a solid foundation for discussions of additional State commitments in this regard. This way, States will be able to make more informed decisions to meet their international commitments to end CRSV. At the same time, survivors and other activists will be empowered to advocate for their rights and ensure States fulfil obligations regarding CRSV under international law.

5. The Mukwege Foundation's Approach to CRSV

5.1 Defining CRSV

CRSV is sexual violence that is related to a conflict. While originally the term typically referred to rape against women only, it has been gradually expanded to include other forms of sexual violence against all persons. To this end, the advocacy of international organisations and groups for a more inclusive understanding of CRSV cannot be overstated. The ICRC, with its unique experiences and access, has offered a great added value in addressing sexual violence in conflict. The Committee on the Elimination of Discrimination against Women has also frequently addressed CRSV, providing States with authoritative guidance on how to comply with the Convention on the Elimination of Discrimination against Women (CEDAW) and protect women in conflict settings.11 Other treaty bodies, such as the Committee against Torture and the Committee on the Rights of Persons with Disabilities, and regional human rights systems have similarly made important contributions to this work. Further, with its resolutions, the UNSC, the UN's highest decision-making body on peace and security, has brought CRSV into its agenda.12 Civil society groups, women's organisations, and survivor groups have also played an invaluable and critical role in educating the international community on what constitutes CRSV, who is affected and in what manner, and how its harms should be remedied.

Today, sexual violence refers to any act of a sexual nature committed against any person under coercive circumstances without their consent,13 including 'force, threat of force, or coercion caused, for example, by fear of violence, duress, detention, psychological oppression or abuse of power'.14 In line with the report of the UN Secretary-General, sexual violence may be physical, psychological and/or verbal.15 It includes rape, sexual slavery, forced prostitution, forced pregnancy, forced abortion, enforced sterilisation, forced marriage, trafficking in persons 'for the purpose of sexual violence and/or exploitation', 'and any other form of sexual violence of comparable gravity'.16

While there is an international legal definition of what acts may be considered sexual violence, approaches differ on how closely related sexual violence should be to conflict in order to be qualified as CRSV.

  • For IHL to apply, sexual violence must have a nexus to an armed conflict. In the absence of a nexus, sexual violence would not be regulated as a war crime under IHL;

  • Under IHRL, a connection between sexual violence and the conflict itself is not required for the implementation of human rights treaties. IHRL treaties condemn sexual violence as a whole and apply equally in both peacetime and conflict;

  • As regards the UN Peace and Security framework,17 in a report submitted pursuant to Security Council resolution 2467 (2019), the UN Secretary-General stated that a link between sexual violence and the conflict, whether direct or indirect, 'may be evident in the profile of the perpetrator, who is often affiliated with a State or non-State armed group, including those designated as terrorist groups by the United Nations; the profile of the victim, who is frequently an actual or perceived member of a persecuted political, ethnic or religious minority, or targeted on the basis of actual or perceived sexual orientation or gender identity; a climate of impunity, which is generally associated with State collapse; cross-border consequences, such as displacement or trafficking; and/or violations of the provisions of a ceasefire agreement'.18

NOTE TO READERS

What makes an act ‘sexual’ and when an act of a sexual nature may become an act of ‘sexual violence’ have often been the subject of debate. With this in mind, the Hague Principles on Sexual Violence seek to provide practitioners engaged in addressing sexual violence with an enhanced understanding of the various forms that sexual violence may take, ‘to allow for more inclusive, survivor-centred, forward-looking and culturally sensitive responses to these crimes’. The Principles are available here.

Importantly, CRSV can fall within the scope of other kinds of internationally prohibited violence. For example:

  • Under the Convention on the Prevention and Punishment of the Crime of Genocide, CRSV may be an underlying act of genocide;

  • Under the International Convention on the Elimination of Racial Discrimination, CRSV may be a form of racial discrimination;

  • Under the International Covenant on Civil and Political Rights and the Convention on the Elimination of Discrimination against Women, CRSV may be a manifestation of discrimination/violence against women (a group that includes girls, unless otherwise specified in the Guidebook) and/or gender-based violence;

  • Under the Convention against Torture, CRSV may be classified as either torture and/or other cruel, inhuman or degrading treatment or punishment;

  • Under the Convention on the Rights of the Child, CRSV may fall under the scope of violence against children and child abuse;

  • Under the Convention on the Rights of Persons with Disabilities, CRSV may amount to violence against persons with disabilities;

  • Under the Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence (Istanbul Convention), CRSV may be a form of domestic violence.

NOTE TO READERS

In the Guidebook, references to the above-mentioned forms of violence and their corresponding State obligations should be understood as including CRSV.

Accordingly, different systems may impose differing obligations (in both substance and scope) on States. Such obligations, however, are not mutually exclusive: for example, States may have the obligation to prevent or respond to CRSV that amounts to racial discrimination and that simultaneously constitutes gender-based violence. Further, several frameworks (at both the regional and international level) have frequently referred to one another's approaches to CRSV. States should not comply with their obligations under a specific instrument or legal field in an isolated manner: the International Court of Justice (ICJ) has stressed that 'an international instrument has to be interpreted and applied within the framework of the entire legal system prevailing at the time of the interpretation'.19 As such, States should consider adopting a holistic, intersectional approach in the implementation of their international legal obligations to prevent and respond to CRSV.

In the next 5 subsections, we provide readers with information that States should consider to implement their obligations under international law to prevent and respond to CRSV in a comprehensive manner. We begin by examining how the law has evolved to protect persons that face intersectional discrimination. Then, we discuss which groups may be most exposed to human rights violations by virtue of structural conditions of risk. Further, we illustrate how different areas of international law interact with one another to address CRSV. Next, we explain how, in certain circumstances, States have to implement their international legal obligations beyond their borders. Finally, we consider how States should address CRSV committed by private actors.

5.2 An Intersectional Approach to International Law

Intersectionality is a term coined by Prof. Kimberlé Crenshaw. Originally, she used the term to analyse the multiple and overlapping forms of discrimination experienced by African American women in the United States.20 In the past few decades, UN human rights treaty bodies (committees of experts who monitor States' implementation of human rights treaties) and regional human rights systems have come to embrace intersectionality in their examination of human rights violations.

Case study: Gonzales Lluy et al v Ecuador concerned a girl, Talía, who, after contracting HIV following a blood transfusion that had not been tested for infectious diseases, was barred from attending school, suffered discrimination at the hands of school officials and teachers, and was evicted and forced to move with her family multiple times when landlords found out about her status. While this case does not address CRSV, it exemplifies how an intersectional approach can be used when dealing with persons subjected to multiple and overlapping forms of discrimination.

The Inter-American Court of Human Rights established that the discrimination against Talía was associated with several factors such as the fact that 'she was a woman, a person with HIV, a person with a disability, a minor, and due to her socio-economic status', increasing her vulnerability and exacerbating the harm she suffered.21 In this sense, the discrimination suffered by the applicant was multiple. The Court, in finding that the State had violated the applicant's right to education among other rights, indicated that the discrimination 'was caused not only by numerous factors, but also arose from a specific form of discrimination that resulted from the intersection of those factors'. '[I]f one of those factors had not existed, the discrimination would have been different'.

Indeed, the [applicant's] poverty had an impact on the initial access to health care that was not of the best quality and that, to the contrary, resulted in the infection with HIV. The situation of poverty also had an impact on the difficulties to gain access to the education system and to lead a decent life. Subsequently, because she was a child with HIV, the obstacles that Talía suffered in access to education had a negative impact on her overall development, which is also a differentiated impact taking into account the role of education in overcoming gender stereotypes. As a child with HIV, she required greater support from the State to implement her life project. As a woman, Talía has described the dilemmas she feels as regards future maternity and her interaction in an intimate relationship, and has indicated that she has not had appropriate counseling.22

Talía's case illustrates that discrimination does not affect everyone in the same way and that the impact 'is more severe on members of vulnerable groups'.23 Distinct discriminations (e.g., sexism, ableism, racism, homophobia and transphobia, among others) should be seen as a unified system that generates oppression. An individual possesses multiple identities simultaneously (for example, a child with a disability who belongs to an ethnic minority), all of which contribute not only to how they see themselves, but also to how they are seen by society.

5.3 The Concept of 'Vulnerability' in International Human Rights Law

Under international law, the concept of vulnerability helps denote persons that 'are more prone to harm than others'.24 From a human rights point of view, their predicament is 'more challenging than the situation of other members of society'.25

NOTE TO READERS

All references to ‘vulnerability’ in the Guidebook should not be interpreted as overlooking the agency and individual circumstances of vulnerable persons. Where appropriate, the language of ‘at risk’ has been used instead. Similarly, while many of the sources used in the Guidebook use the terminology of ‘vulnerable persons’, there has been a movement away from this language. Any references to vulnerable persons should be understood as persons in vulnerable situations or at risk. This shift is meant to encourage States to undertake a context-specific analysis and consider what the vulnerability risk relates to, for example further or heightened discrimination, marginalisation and/or more violence, including sexual violence.

Persons in vulnerable situations possess characteristics, such as gender, immigration status and/or socio-economic deprivation, that entail external, structural conditions of risk which place them in a position of higher exposure to human rights violations.26

As a result, such persons require 'special protection'.27 Concern for the protection of vulnerable persons has not only led to the consolidation of IHRL after the Holocaust, but also grounds and prominently features in all the UN and regional human rights treaties adopted after 1948.28

However, vulnerability should not be understood as a biological descriptor: vulnerability is not necessarily inherent or intrinsic to the human condition. Rather, societal structures play a primary role in the creation and aggravation of vulnerabilities. Vulnerable persons face impediments to the enjoyment of their rights that may result from 'historical patterns of stigma or discrimination'.29

For example, the European Court of Human Rights (ECtHR) has found that the Roma are a vulnerable minority 'as a result of their turbulent history and constant uprooting', occasioned by outbursts of racial or social hatred and the strained relations between communities that have contributed to the 'deplorable situation' in which the majority of Roma lives today.30 Similarly, the European Court has considered that 'people living with HIV are a vulnerable group with a history of prejudice and stigmatisation'. Ignorance about the spread of HIV has bred prejudice which, in turn, has stigmatised or marginalised those who carry the virus:

As the routes of transmission of HIV/Aids became better understood, it was recognised that HIV infection could be traced to specific behaviours - such as same-sex sexual relations, drug injection, prostitution or promiscuity - that were already stigmatised in many societies, thereby creating a false nexus between the infection and personal irresponsibility and reinforcing other forms of stigma and discrimination, such as racism, homophobia or misogyny.31

Awareness of the influence that societal structures may have in facilitating human rights violations is fundamental in preventing and responding to CRSV. The UNSC has recognised that discrimination against women and girls, the under-representation of women in decision-making and leadership roles, the impact of discriminatory laws and their gender-based enforcement and application, harmful social norms and practices, cultural assumptions about male invulnerability to sexual violence, structural inequalities, discriminatory views on women or gender roles in society, and lack of available services for survivors all exacerbate exposure to CRSV. CRSV occurs on a continuum of sexual and gender-based violence, which impacts diverse groups of women and girls disproportionately, but also men and boys, in peacetime as well as during armed conflict.32 As a general rule, States should afford special protection to persons at risk of human rights violations by virtue of their:

  • Race and colour;

  • Sex, gender identity and expression, sexual orientation and sex characteristics;

  • Disability;

  • Age;

  • Health status;

  • Language;

  • Religion;

  • Political or other opinion;

  • National or social origin;

  • Birth and nationality;

  • Marital and family status;

  • Economic and social situation.33

This is not an exhaustive list. What follows is a brief explanation of how certain groups exist in vulnerable situations, and are exposed to further violence, discrimination and/or marginalisation as a result.

Women. Gender equality is not only a basic human right; its achievement has significant socio-economic ramifications. 'Empowering women fuels thriving economies, spurring productivity and growth'.

Yet gender inequalities remain deeply entrenched in every society. Women lack access to decent work and face occupational segregation and gender wage gaps. They are too often denied access to basic education and health care. Women in all parts of the world suffer violence and discrimination. They are under-represented in political and economic decision-making processes.34

The inferior status frequently accorded to women 'is entrenched in history, culture and tradition', and places them at risk of 'specific violations such as gender-based violence, trafficking and sex discrimination'.35 In conflict, sexual violence against women and girls is widespread and used as a war tactic:36 a majority of the 3300 cases of CRSV that the UN was able to verify in 2021 were women and girls (this number is not representative of the full scale and prevalence of CRSV).37

Children. Children are largely dependent on adults for their basic needs, including food, health care and education. Yet, circumstances force many to manage by themselves. Millions of children, 'especially the youngest, the poorest and the most marginalized', do not have access to nutritious foods:38 nearly half of all deaths in children under 5 are attributable to undernutrition.39 In 2021, 25 million children missed out on lifesaving vaccines.40 64 million children of primary school age remain out of school, 'with the majority of them coming from marginalized groups'.41

In humanitarian settings, children are especially at risk:

During armed conflict, natural disasters and other emergencies, children may be forced to flee their homes, some torn from their families and exposed to exploitation and abuse along the way. They risk injury and death. They may be recruited by armed forces. Especially for girls and women, the threat of gender-based violence soars.42

LGBTQI+ persons. Homophobic and transphobic attitudes, often combined with a lack of adequate legal protection against discrimination on grounds of sexual orientation, gender identity, gender expression and sex characteristics, endanger lesbian, gay, bisexual, transgender, queer and intersex persons (LGBTQI) and others (+. The '+' symbolises the numerous non-cishet gender identities and sexualities that cannot be contained in a brief acronym) everywhere.43

LGBTQI+ people are discriminated against in the labour market, in schools and in hospitals, mistreated and disowned by their own families. They are singled out for physical attack - beaten, sexually assaulted, tortured and killed.

Discrimination and hate-motivated violence against LGBTQI+ people [are] widespread, brutal, and often perpetrated with impunity, and it is even worse for those belonging to racialized communities. They are also victims of torture and ill treatment, including in custody, clinics and hospitals.

In some 77 countries, discriminatory laws criminalize private, consensual same-sex relationships - exposing individuals to the risk of arrest, prosecution, imprisonment - even, in at least five countries, the death penalty.44

Existing discrimination and violence against LGBTQI+ persons are aggravated during conflict. Trans and intersex persons who lack identification documents with gender markers matching their gender identity 'may lose access to hormone replacement therapy or other medical treatments'. Some may be unable to flee war-torn countries, as trans women and non-binary people assigned male at birth 'are considered "men" and - being potential recruits - are not allowed to leave'. As a whole, LGBTQI+ persons may even be excluded from evacuation and emergency responses.45

Reports on the persecution of individuals because of their actual or perceived of sexual orientation, gender identity, gender expression and sex characteristics also mention sexual violence, including forced stripping and rape, 'perpetrated both by government forces and by armed groups, in particular in detention facilities',46 as well as beating their sexual organs, forced nudity, and anal or vaginal faux 'examinations' supposedly 'as a means to "confirm" their sex or whether they had been penetrated in their anus'.47

Persons with disabilities. Over one billion people worldwide are living with some form of disability.48 Persons with disabilities face discrimination and barriers every day that restrict them from participating in society on an equal basis with others.

For example, they are commonly denied their rights to be included in school and the workplace, to live independently in the community, to vote, to participate in sport and cultural activities, to enjoy social protection, to access justice, to consent or refuse medical treatment or to enter freely into legal commitments such as opening a bank account, and inheriting or buying property.49

Once an armed conflict breaks out, persons with pre-existing disabilities are frequently unable to access 'the basic necessities for survival, such as food, water, sanitation, shelter, healthcare and humanitarian aid'.

Fearing for their lives and security, when many are forced to flee their homes, persons with disabilities are often left behind, or simply cannot leave, facing the challenges and barriers exacerbated by military operations.

Urban warfare and the use of explosive weapons with wide-area impact in populated areas leave many affected people with life-long disabilities or severe psychological trauma. What remains of healthcare facilities in such environments is often overwhelmed with the sick and wounded, typically with complex injuries.

Persons with disabilities, who already face discrimination and stigma in peacetime, often face even greater harm in armed conflicts - including being directly targeted or indiscriminately attacked. Women and girls with disabilities face an increased risk of sexual violence, while boys and men with disabilities are forcibly recruited or mistakenly targeted as members of parties to the conflict. Institutions housing or caring for persons with disabilities have been targeted or used as human shields.50

Refugees, asylum-seekers, and internally displaced persons. Refugees are persons who have fled their own country because they are at risk of persecution there, and have obtained international protection.51 Asylum seekers are person 'whose request for sanctuary has yet to be processed'.52 Internally displaced persons are persons who have been forced to flee their homes to avoid the effects of armed conflict, generalised violence and human rights violations, and have not crossed a border.53

At the end of 2021, there were 89.3 million forcibly displaced persons world-wide 'as a result of persecution, conflict, violence, human rights violations or events seriously disturbing public order'. Many experience racism and/or xenophobia, are excluded from local communities and denied citizenship, becoming stateless as a result.54

National or ethnic, religious and linguistic minorities. A considerable number of human rights violations are the product of discrimination, racism and exclusion on the grounds of race, colour, descent, national or ethnic origin, language, religion, social origin and birth.

There is no internationally agreed definition as to who is a minority. The existence of a minority is a question of fact and carries both objective factors (such as the existence of a shared ethnicity, language or religion) and subjective factors (including that individuals must identify themselves as belonging to a national or ethnic, religious or linguistic minority group).55

Indigenous persons. There are over 476 million Indigenous persons across the world.

Indigenous peoples have in common a historical continuity with a given region prior to colonization and a strong link to their lands. They maintain, at least in part, distinct social, economic and political systems. They have distinct languages, cultures, beliefs and knowledge systems. They are determined to maintain and develop their identity and distinct institutions and they form a non-dominant sector of society.56

Indigenous persons are nearly three times as likely to be living in extreme poverty compared to their non-Indigenous counterparts.57 During conflict, they are among the most at risk due to the poverty, political marginalisation and systemic discrimination that they still face.

In some countries, Indigenous peoples are victims of massacres carried out by the army or paramilitary groups during conflicts. In many cases, Indigenous women have been used as "spoils of war" and subjected to sexual violence and rape. Indigenous children are sometimes forcibly recruited to participate in armed conflicts, leaving behind their homes, and their childhood.58

5.4 How Different Fields of Law Interact with One Another

5.4.1 The Interaction between IHL and IHRL

IHL applies in armed conflicts only. On the other hand, IHRL applies at all times and in all situations.59 While not identical, the two fields are sometimes alike. In interpreting shared concepts (such as cruel, inhuman and degrading treatment), experts have often referred to IHRL to expand upon IHL (or vice versa).60 The IHL and IHRL provisions relevant to CRSV are largely complementary and mutually reinforce each other. As a general rule, to determine States' international obligations, both IHL and IHRL must be taken into account.61

However, if the simultaneous application of IHL and IHRL leads to a legal contradiction, it is preferable to adopt a case-by-case approach and apply the provision which provides more detailed guidance on the problem to be addressed.62

5.4.2 The Interaction between Different UN Human Rights Treaties

All rights in human rights treaties are 'universal, indivisible and interdependent and interrelated'. States must treat human rights 'in a fair and equal manner, on the same footing, and with the same emphasis'.63

With this in mind, the UNGA adopted resolution 68/268 on strengthening and advancing the functioning of the UN human rights treaty bodies. The UNGA recommended that treaty bodies, while having their own distinct mandates, generalise good practices and methodologies, 'ensuring coherence across the treaty bodies, and standardizing working methods'.64

This recommendation concerns procedural, rather than substantive, matters: States should not adopt a harmonised, generalised approach to the protection of human rights. Doing so risks interfering with the minority-, disability-, or gender-sensitive perspective that may be required in the implementation of different human rights treaties.

As a rule, States should not construe obligations under different human rights treaties that have the potential to contradict each other as conflicting. For example, the Committee on the Rights of Persons with Disabilities and the Committee on the Elimination of All Forms of Discrimination against Women have stated that gender equality and disability rights 'are mutually reinforcing concepts', and that referring to disability rights to restrict or prohibit women's access to safe abortion 'constitutes a misinterpretation of the Convention on the Rights of Persons with Disabilities'.65

In the unlikely event that a conflict cannot be resolved, a possible approach is to apply the provision that is more conducive to the realisation of the human right at issue.66

5.4.3 The Interaction between International and Regional Human Rights Law

All rights in human rights treaties, including regional treaties, are 'universal, indivisible and interdependent and interrelated'. States must treat human rights 'in a fair and equal manner, on the same footing, and with the same emphasis'. 'While the significance of national and regional particularities and various historical, cultural and religious backgrounds must be borne in mind', States, regardless of their political, economic and cultural systems, must promote and protect all human rights and fundamental freedoms.67

As a result, States should take a similar approach to potential conflicts between international and regional human rights law, and acknowledge that the two reinforce each other.68 This has also been the general practice of the UNGA, the UN Human Rights Council and the UN Human Rights Office of the High Commissioner.69

Under international law, there is a presumption against conflict of international legal norms. It is premised upon the assumption that States 'act consistently and do not enter into agreements that contradict pre-established rights or obligations'.70 As a general rule, instruments that touch upon the same subject matter should be implemented in a complementary manner.71 Conflicts are avoided by reference to the Vienna Convention on the Law of Treaties (VCLT), an instrument which codifies customary law72 and provides guidance on how to interpret possibly conflicting provisions harmoniously and whether one should prevail over the other.73

Case study: the Arms Trade Treaty. Currently ratified by 113 States Parties, the Arms Trade Treaty (ATT) is an international treaty that regulates the international trade in conventional arms and seeks to prevent and eradicate their illicit trade by establishing international standards governing arms transfers.74 Under article 7, States must assess the potential that the conventional arms or items they wish to export may be used to commit or facilitate a serious violation of IHL and/or IHRL, including serious acts of gender-based violence, or violence against women and children.75 If, after conducting this assessment and in the absence of available mitigating measures, the exporting State Party determines that there is an overriding risk, it must not authorise the export.76

Some treaty bodies have found that the treaties they monitor already require States Parties to regulate the international transfer of arms.77 However, this has not led to a conflict between instruments. The obligations that States have under such treaties are actually reinforced by the ATT. For example, the CEDAW Committee has observed that ratifying and implementing the ATT would help States address the gendered impact of the international arms trade.78

The UNSC has similarly acknowledged the adoption of the ATT, and noted the relevance of article 7(4) (on the export of arms used to commit or facilitate the commission of gender-based violence or violence against women and children) to its Women, Peace and Security agenda.79

A State must comply with its obligations under IHL beyond its own territory. As the purpose of IHL is to regulate the conduct of one or more States involved in an international (i.e., inter-State) armed conflict on the territory of another, there is no question that IHL applies to a State's extraterritorial conduct, though the extent of the geographic reach of IHL applicability is not unlimited.80 The same holds true for non-international (i.e., non-inter-State) armed conflict:81 the rules of IHL reflect 'elementary considerations of humanity' and are applicable under customary international law to any conflict, whether international or non-international.82 Parties to a conflict 'cannot be absolved of their IHL obligations when the conflict reaches beyond the territory of a single State'.83

Under IHRL, the matter is more complex. For a State to have human rights duties towards persons (including persons who are not citizens of that State),84 and for persons to have human rights enforced by and against that State, that State must have jurisdiction (i.e., 'authority, responsibility or control') over those persons or the space they inhabit.85 States' jurisdiction under IHRL is different from:

  • States' jurisdiction under general international law, which determines whether States have a right to assert their public, sovereign authority and take legislative, executive or judicial action;

  • The jurisdiction (i.e., 'competence', which can be understood as having the authority) of judicial and other bodies, including human rights treaty bodies, to hear a complaint and adjudicate on a dispute;

  • Attribution, which determines whether the harmful conduct of particular individuals is imputable to a State.86

To establish a State's human rights jurisdiction, control must be effective.87 The test to establish whether control is effective may be spatial, personal or functional.

Spatial Jurisdiction. Spatial jurisdiction concerns the effective control that a State exercises over an area. Generally, a State is presumed to have jurisdiction over its own territory. While extraterritorial jurisdiction is exceptional, factual and legal elements, including 'military actions or actions by State security forces that indicate "control", "power" or "authority"', can establish jurisdiction.88

This is usually the case when States exercise effective control over occupied territories. Occupying powers (i.e., a State that has placed the opposing State's territory under its authority)89 must secure respect for IHRL and protect the inhabitants of occupied territories 'against acts of violence, and not to tolerate such violence by any third party'.90 Depending on the circumstances, States that cannot be considered occupying powers may still have effective control over a certain area.91

Personal jurisdiction. States may exercise effective control over specific individuals, whether present within or outside their territory, and thus have personal jurisdiction. This is usually the case when:92

  • States, through their agents, including soldiers, police and security forces, have physical control over those individuals, such as detained individuals;93

  • A State exercises the powers normally exercised by a Government that has consented to, invited or acquiesced to that State's presence in its territory, for example by treaty or UNSC resolution.94

Functional jurisdiction. Functional jurisdiction is the control that States may have over activities that affect the enjoyment of human rights. A State has extraterritorial obligations under IHRL when its conduct, including 'its military or other activities', or the conduct of private actors may lead to harm against human rights 'in a direct and reasonably foreseeable manner'.95

Functional jurisdiction is the broadest in nature.96 However, a State cannot be held responsible for every human rights violation committed within its jurisdiction: the particular circumstances of each case must be examined.97 To determine whether a State has failed to comply with their IHRL obligations, it must be established that:

  • At the time of the violation, the authorities knew or should have known of the real and imminent danger to a person's human rights, and failed to take all reasonable measures to prevent or avoid that danger;

  • There was a causal link between the violation committed within a State's jurisdiction and the harm caused to that person's life and/or integrity.98

5.6 Preventing and Responding to CRSV Committed by Private Actors

All parties to a conflict, whether State or non-State, public or private, are bound by the provisions of IHL.99 Under IHRL, the matter is more complex. While there are debates as to whether IHRL directly applies to private actors, all human rights treaties require States to protect all within their jurisdiction from violations committed by private actors, including non-State armed groups.

By becoming parties to international treaties, States assume obligations and duties under international law to respect, to protect and to fulfil human rights. The obligation to respect means that States must refrain from interfering with or curtailing the enjoyment of human rights. The obligation to protect requires States to protect individuals and groups against human rights abuses. The obligation to fulfil means that States must take positive action to facilitate the enjoyment of basic human rights.100

For our purposes, the relevant obligation is that to protect (or, interchangeably, to ensure).101 States must protect individuals not only against human rights violations committed by their agents, but also against violations committed by private persons or entities.102 Protective measures include preventive measures, such as the enactment of legislation and the establishment of regulatory and monitoring mechanisms in the private sphere, and reactive measures, such as investigation and prosecution of human rights abuses.103 Whether States have complied with their obligation to protect human rights is determined through a due diligence test.104

Case study: Velásquez-Rodríguez v Honduras concerned the violent detention and disappearance of Manfredo Velásquez, a university student, at the hands of the Government of Honduras. In finding that from 1981 to 1984, '100 to 150 persons disappeared in the Republic of Honduras, and many were never heard from again', the Inter-American Court held that a State may be held responsible for human rights violations committed by private persons or whose perpetrators have not been identified because of a State's 'lack of due diligence to prevent the violation or to respond to it' as required by the American Convention on Human Rights.105

The existence of a particular violation does not, in itself, prove a State's failure to take protective measures. However, a State has a legal duty:

[T]o take reasonable steps to prevent human rights violations and to use the means at its disposal to carry out a serious investigation of violations committed within its jurisdiction, to identify those responsible, to impose the appropriate punishment and to ensure the victim adequate compensation.

This duty to prevent includes all those means of a legal, political, administrative and cultural nature that promote the protection of human rights and ensure that any violations are considered and treated as illegal acts, which, as such, may lead to the punishment of those responsible and the obligation to indemnify the victims for damages.106

A failure to comply with this legal duty may engage States' international responsibility.107


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  64. UNGA Res 68/268 (9 April 2014) UN Doc A/RES/68/268

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  66. Convention on the Rights of the Child (CRC), art 41. 

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  68. World Conference on Human Rights, 'Vienna Declaration and Programme of Action' (12 July 1993) UN Doc A/CONF.157/23 para 37. 

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  70. R Ferguson, The Right to Food and the World Trade Organization's Rules on Agriculture: Conflicting, Compatible, or Complementary? (Brill Nijhoff 2018) p 51. 

  71. With the exception of the UN Charter, see art 103: State obligations under the UN Charter prevail over obligations under any other international agreement. 

  72. Dispute Regarding Navigational and Related Rights (Costa Rica v Nicaragua) (Judgment) [2009] ICJ Rep 213 para 47; Rainbow Warrior (New Zealand v France) (Decision) [1990] XX Reports of International Arbitral Awards 215 para 72. 

  73. VCLT, arts 30, 31 and 32. 

  74. ATT, 'The Arms Trade Treaty' <https://thearmstradetreaty.org> accessed 4 May 2023. 

  75. ATT, art 7(4). 

  76. For a thorough breakdown of the ATT and its relevance to IHL and IHRL, see ICRC, 'Understanding the Arms Trade Treaty from a Humanitarian Perspective' (ICRC 2020) <www.icrc.org/en/publication/4252-understanding-arms-trade-treaty-humanitarian-perspective> accessed 4 May 2023. 

  77. CEDAW Committee, 'General Recommendation No. 35 on Gender-Based Violence against Women, Updating General Recommendation No. 19' (26 July 2017) UN Doc CEDAW/C/GC/35 para 33(e); CRC Committee, 'Consideration of Reports Submitted by States Parties under Article 8 of the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict. Concluding Observations: Colombia' (21 June 2010) UN Doc CRC/C/OPAC/COL/CO/1 para 50. 

  78. CEDAW Committee, 'General Recommendation No. 35 on Gender-Based Violence against Women, Updating General Recommendation No. 19' (26 July 2017) UN Doc CEDAW/C/GC/35 para 33(e). 

  79. UNSC Res 2467 (23 April 2019) UN Doc S/RES/2467 p 3. 

  80. Geneva Conventions, common art 2; ICRC, 'What Is the Difference Between IHL and Human Rights Law?' (22 January 2015) <www.icrc.org/en/document/what-difference-between-ihl-and-human-rights-law> accessed 11 April 2023. See also ICRC, 'International Humanitarian Law and the Challenges of Contemporary Armed Conflicts' (31 October 2015) pp 12-15: 'The territorial scope of armed conflict - and therefore of IHL - is an issue that has attracted a great deal of attention over the past few years due, mainly, to the extraterritorial use of force by means of armed drones. This issue arises largely as a result of the fact that IHL does not contain an overall explicit provision on its scope of territorial applicability. The questions that are most often asked are: does IHL apply to the entire territories of the parties to an armed conflict or is it restricted to the "battlefield" within such territories? Does it apply outside the territories of the parties, i.e. in the territory of neutral or non-belligerent States? The views offered below are of a "framework" nature only, as the reality is complex and constantly evolving'. 

  81. For a definition of international and non-international armed conflict, see Introduction in IHL chapter. 

  82. Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America) (Judgment) [1986] ICJ Rep 14 para 218; Prosecutor v Tadić (Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction) IT-94-1-A (2 October 1995) (AC) para 102; Geneva Conventions, common art 3. 

  83. ICRC, 'What Is the Difference between IHL and Human Rights Law?' (22 January 2015) <www.icrc.org/en/document/what-difference-between-ihl-and-human-rights-law> accessed 11 April 2023. 

  84. CCPR, 'General Comment No. 31: The Nature of the General Legal Obligation Imposed on States Parties to the Covenant' (26 May 2004) UN Doc CCPR/C/21/Rev.1/Add. 13 para 10. 

  85. Rights and Guarantees of Children in the Context of Migration and/or in Need of International Protection (Advisory Opinion) (Inter-American Court of Human Rights Series OC-21/14) (19 August 2014) para 61; P Janig, 'Extraterritorial Application of Human Rights' in C Binder, M Nowak, J A Hofbauer and P Janig (eds), Elgar Encyclopedia of Human Rights (Edward Elgar Publishing 2022) para 12. 

  86. P Janig, 'Extraterritorial Application of Human Rights' in C Binder, M Nowak, J A Hofbauer and P Janig (eds), Elgar Encyclopedia of Human Rights (Edward Elgar Publishing 2022) paras 2-3. 

  87. The manner in which a State obtained effective control is irrelevant: States may also exercise human rights jurisdiction through national contingents 'assigned to an international peace-keeping or peace-enforcement operation'. CCPR, 'General Comment No. 31: The Nature of the General Legal Obligation Imposed on States Parties to the Covenant' (26 May 2004) UN Doc CCPR/C/21/Rev.1/Add. 13 para 10. 

  88. The Environment and Human Rights (Advisory Opinion) (Inter-American Court of Human Rights Series OC-23/17) (15 November 2017) para 80. 

  89. Hague Convention (IV) Respecting the Laws and Customs of War on Land, art 42

  90. Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda) (Judgment) [2005] ICJ Rep 168 para 178; Hague Convention (IV) Respecting the Laws and Customs of War on Land, art 43

  91. See Mozer v The Republic of Moldova and Russia App no 11138/10 (ECtHR, 23 February 2016) paras 103-110. 

  92. P Janig, 'Extraterritorial Application of Human Rights' in C Binder, M Nowak, J A Hofbauer and P Janig (eds), Elgar Encyclopedia of Human Rights (Edward Elgar Publishing 2022) paras 26-33. 

  93. Communication No. 323/2007 J.H.A. v. Spain, Decision of the Committee against Torture under Article 22 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (21 November 2008) UN Doc CAT/C/41/D/323/2007 para 8.2. 

  94. Al-Skeini and Others v The United Kingdom App no 55721/07 (ECtHR, 7 July 2011) para 135. 

  95. CCPR, 'General Comment No. 36: Article 6: Right to Life' (3 September 201) UN Doc CCPR/C/GC/36 para 63; Communication No. 3042/2017 A.S., D.I., O.I. and G.D. v Italy, Views Adopted by the CCPR under Article 5(4) of the Optional Protocol (28 April 2021) UN Doc CCPR/C/130/D/3042/2017; Communication No. 107/2019 Chiara Sacchi et al v Germany, Decision Adopted by the Committee on the Rights of the Child under the Optional Protocol to the Convention on the Rights of the Child on a Communications Procedure (11 November 2021) UN Doc CRC/C/88/D/107/2019; The Environment and Human Rights (Advisory Opinion) (Inter-American Court of Human Rights Series OC-23/17) (15 November 2017) para 101; African Commission on Human and Peoples' Rights (ACHPR), 'General Comment No. 3 on the African Charter on Human and Peoples' Rights: the Right to Life (Article 4)' (2015) para 18; P Janig, 'Extraterritorial Application of Human Rights' in C Binder, M Nowak, J A Hofbauer and P Janig (eds), Elgar Encyclopedia of Human Rights (Edward Elgar Publishing 2022) para 34. 

  96. For a more in-depth discussion on the controversial nature of functional jurisdiction, see P Janig, 'Extraterritorial Application of Human Rights' in C Binder, M Nowak, J A Hofbauer and P Janig (eds), Elgar Encyclopedia of Human Rights (Edward Elgar Publishing 2022). 

  97. The Environment and Human Rights (Advisory Opinion) (Inter-American Court of Human Rights Series OC-23/17) (15 November 2017) para 119. 

  98. The Environment and Human Rights (Advisory Opinion) (Inter-American Court of Human Rights Series OC-23/17) (15 November 2017) paras 120 and 101. 

  99. See "Introduction" and obligation "III.1" in the "International Humanitarian Law" chapter. 

  100. OHCHR, 'International Human Rights Law' <www.ohchr.org/en/instruments-and-mechanisms/international-human-rights-law> accessed 11 April 2023. 

  101. CCPR, 'General Comment No. 31: The Nature of the General Legal Obligation Imposed on States Parties to the Covenant' (26 May 2004) UN Doc CCPR/C/21/Rev.1/Add. 13 para 3. 

  102. CCPR, 'General Comment No. 31: The Nature of the General Legal Obligation Imposed on States Parties to the Covenant' (26 May 2004) UN Doc CCPR/C/21/Rev.1/Add. 13 para 8; X and Y v The Netherlands App no 72631/17 (ECtHR, 26 March 1985); Velásquez-Rodríguez v Honduras (Judgment) (Inter-American Court of Human Rights Series C No 215) (29 July 1988) paras 176-177; ACHPR, Mouvement Burkinabé des Droits de l'Homme et des Peuples v Burkina Faso, Communication 204/97 (2001) para 42. 

  103. D M Chirwa, 'The Doctrine of State Responsibility as a Potential Means of Holding Private Actors Accountable for Human Rights' (2004) 5(1) Melbourne Journal of International Law 1 p 14. 

  104. CCPR, 'General Comment No. 31: The Nature of the General Legal Obligation Imposed on States Parties to the Covenant' (26 May 2004) UN Doc CCPR/C/21/Rev.1/Add. 13 para 8; Opuz v Turkey App no 33401/02 (ECtHR, 9 June 2009) para 131; Velásquez-Rodríguez v Honduras (Judgment) (Inter-American Court of Human Rights Series C No 215) (29 July 1988) para 172; ACHPR, Social and Economic Rights Action Centre and Another v Nigeria (SERAC Case), Communication 155/96 (2001). 

  105. Velásquez-Rodríguez v Honduras (Judgment) (Inter-American Court of Human Rights Series C No 215) (29 July 1988) para 172. 

  106. Velásquez-Rodríguez v Honduras (Judgment) (Inter-American Court of Human Rights Series C No 215) (29 July 1988) paras 174-175. 

  107. Velásquez-Rodríguez v Honduras (Judgment) (Inter-American Court of Human Rights Series C No 215) (29 July 1988) paras 172 and 177.