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Related words non-State actor third party third-party actor

Introduction

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. 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.

For our purposes, the relevant obligation is that to protect (or, interchangeably, to ensure). States must protect individuals not only against human rights violations committed by their agents, but also against violations committed by private persons or entities. 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. Whether States have complied with their obligation to protect human rights is determined through a due diligence test.

International Humanitarian Law

III.1 States must outlaw CRSV

Under common article 1 of the Geneva Conventions, States must respect and ensure respect for the Conventions in all circumstances and must take measures necessary to suppress acts contrary to their provisions. Under customary IHL, the obligation of States to respect and ensure respect for international humanitarian law also applies more generally to all IACs and NIACs. Even States that are not parties to a specific conflict have obligations in this respect. As part of implementing this more general obligation, criminalising sexual violence in all its forms and in all armed contexts is an important step for ending CRSV.

Private actors including private military and security companies (PMSC). Under IHL, States have obligations to prevent and respond to violations of IHL committed by private actors. In certain circumstances, States can also become directly responsible for the violations, which entails further obligations such as to provide reparations.

Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT)

III.3 States must address CRSV committed by private actors

Under articles 2 and 16, States must take effective measures to prevent torture and ill-treatment. While the CAT imposes obligations on States Parties and not on individuals, States may bear international responsibility for the acts and omissions of their officials and others, 'including agents, private contractors, and others acting in official capacity or acting on behalf of the State, in conjunction with the State, under its direction or control, or otherwise under colour of law'.

Where State authorities or others acting in official capacity or under colour of law 'know or have reasonable grounds to believe that acts of torture or ill-treatment are being committed by non-State officials or private actors', they must exercise due diligence to prevent, investigate, prosecute and punish such actors. If they fail to do so, the State bears responsibility and its officials should be considered 'as authors, complicit or otherwise responsible' for consenting to or acquiescing to the prohibited acts: the State's indifference or inaction is a form of encouragement and/or permission. The Committee has applied this principle to States Parties' failure 'to prevent and protect victims from gender-based violence, such as rape, domestic violence, female genital mutilation, and trafficking'.

Inter-American Human Rights System

III.2 States must address CRSV committed by private individuals and groups

As a rule, States must prevent human rights violations, 'including those committed by private third parties'. The obligation to prevent is one of means, and it is not necessarily breached when a right has been violated. In addition, under the Convention of Belém do Pará, States must prevent, punish and eradicate violence against women, whether committed in the public or the private sphere.

To establish State responsibility for the actions of third parties, the Court has held that a 'general context of collaboration and acquiescence is not enough'. Rather, the State's acquiescence or collaboration must be 'specific to the circumstances'. In this regard, the Court looks at whether a violation was committed 'with the support or tolerance' of the State, or whether the State allowed the violation to be committed without preventing it or punishing the private perpetrator.

Convention on the Rights of the Child (CRC)

III.6 States must ensure children's right to express views and consider them in eradicating CRSV

Under article 12(1), States must ensure that children who are capable of forming their own views have the right to express those views freely, and give weight to those views in accordance with the child's age and maturity. States should consider the following:

    Article 12(1) leaves no leeway for States' discretion. States should fully implement this right for all children'; States should presume that a child has the capacity to form their own views and recognise that they have the right to express them; it is not up to the child to first prove their capacity. States should not introduce age limits which would restrict the child's right to be heard in all matters affecting them; The child should be able to express their views 'without pressure', and choose whether or not they want to exercise their right to be heard; States should broadly interpret the meaning of 'all matters affecting the child'; Age alone cannot determine the significance of a child's views: maturity refers to the ability to understand and assess the implications of a particular matter, and should be considered when determining the individual capacity of a child. Maturity is the capacity of a child to express their views on issues 'in a reasonable and independent manner'.

Convention on the Elimination of All Forms of Discrimination against Women (CEDAW)

III.6 States must address CRSV committed by private actors

Under article 2(e), States must eliminate discrimination against women by any private actor, including national corporations operating extraterritorially in conflict-affected areas, armed groups, paramilitaries, private military contracts, organised criminal groups and vigilantes.

The international responsibility of a State may be engaged if:

Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention)

III.3 States must punish CRSV

States must not afford impunity to those who commit genocide: States must punish perpetrators of any of the acts listed in article III, whether they are heads of state, public officials or private actors. States must also provide effective penalties for perpetrators of genocide in their domestic law.

Under article VI, only a State on whose territory any of the acts listed in article III were committed must prosecute the perpetrators in a competent tribunal of that State. Alternatively, perpetrators must be tried by an international penal tribunal whose jurisdiction States Parties have accepted. While article VI does not prohibit other States from prosecuting any of the acts listed in article III, they are not under an obligation to do so.

Introduction

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International Humanitarian Law

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Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention)

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Convention on the Elimination of All Forms of Discrimination against Women (CEDAW)

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Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT)

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Convention on the Rights of Persons with Disabilities (CRPD)

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African Union System

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Council of Europe System

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Inter-American Human Rights System

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