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. / Thesis (LLD)--University of Pretoria, 2018. / Public Law / LLD / Unrestricted
| Identifer | oai:union.ndltd.org:netd.ac.za/oai:union.ndltd.org:up/oai:repository.up.ac.za:2263/66657 |
| Date | January 2018 |
| Creators | Eberechi, Oghenerioborue Esther |
| Contributors | Stevens, G.P. (Geert Philip), rioborue@gmail.com |
| Publisher | University of Pretoria |
| Source Sets | South African National ETD Portal |
| Language | English |
| Detected Language | English |
| Type | Thesis |
| Rights | © 2018 University of Pretoria. All rights reserved. The copyright in this work vests in the University of Pretoria. No part of this work may be reproduced or transmitted in any form or by any means, without the prior written permission of the University of Pretoria. |
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