Under a huge baobab tree in Sudan’s Nuba mountains, I met Sebila, a 27-year-old mother of three. In March last year, her village had been attacked by Sudanese ground troops and bombed by government war planes. The assault forced Sebila and many other villagers to flee deeper into rebel-held territory.

She was just back in the village for the day with her children, two toddlers in tow and carrying a baby, to dig up sorghum she had buried. Sebila said food here is scarcer than it has been for years, because of poor rains and conflict fighting. “It’s exhausting, trying to feed them all [my family],” Sebila said of her children.

Aid obstruction in the rebel-held territories of Sudan’s South Kordofan and Blue Nile has been in force for nearly six years, and has had a devastating impact on the communities here. For Sebila – and all the women living across these territories – it has meant no access to contraception. “Every year, I give birth,” she told me. “It would be better if I could space it [out].” But Sebila cannot space her babies out, or have any control of her body. Like all women living in rebel-held territory here, she has zero access to contraception.

 In the Nuba Mountains, South Kordofan, access to family planning and maternal healthcare is severely limited by blocks on humanitarian supplies.

© Goran Tomasevic/Reuters

It has also meant a severe lack of maternal healthcare. There is no local midwife, and Sebila lives five hours’ drive from a hospital, in a region where cars are a rare luxury. Women told me of waiting hours for transport while in obstructed labour, or being held propped up, bleeding and falling in and out of consciousness, between two men on the back of a motorcycle to reach a hospital. Multiple and closely-spaced births can carry serious health risks for both mother and infant, and can be life-threatening without proper treatment.

Yet there is no coordinated international aid effort under way in the Nuba mountains. Funds are in place, but both the government and the rebel group are preventing supplies getting in. The conflict has left already-stretched health services in the region in a pitiful state. Most facilities are little more than a table with some basic medicines, and there are only five doctors and one blood bank for perhaps close to a million people.

Despite many rounds of peace talks since fighting began in 2011, the Sudanese government and the Sudan People’s Liberation Army-North have failed to agree on how to allow aid – needs-based and impartially delivered – into the affected areas. Instead they are still arguing about whether aid can come through a third country, or, as the government insists, only from inside Sudan. Some aid groups have found ways to provide occasional help, unauthorised by the government but supported by the rebels, but this is no substitute for the large-scale effort needed. 

This has very serious consequences for reproductive health. None of the women I met in the Nuba mountains had any access to family planning. One clinic provides a three-month injectable contraception, but local rebel regulations require women to get their husband’s permission first. Despite evidence that gonorrhoea and syphilis are on the rise and hepatitis B common, condoms are scarce. Most of the women I met had never seen a condom, let alone any other form of contraception.

It is also feared that the number of women and girls dying in childbirth in the rebel-held areas of Southern Kordofan – already much higher than other states in Sudan – is rising yet further. And two major aid efforts, including a UN polio vaccination campaign for children, have failed.

Sudan has a long history of aid obstruction going back to the start of the conflict: denying travel permits; rejecting visas; blocking work permits; and expelling aid workers. Meanwhile, citing mistrust of the government, the rebels have still not agreed to an offer by the US to provide aid via Khartoum, and have instead called for yet more negotiations. 

Although aid saves lives, and warring parties in conflict have an obligation to allow the delivery of humanitarian assistance to civilians, preventing it from reaching people is rarely punished. The UN security council briefly threatened punitive action against Sudan in 2012, but never acted. The health crisis unfolding in the Nuba mountains should prompt a change of tack. The UN security council, the African Union and the EU should investigate and consider travel bans and asset freezes on rebel and government leaders found to have deliberately blocked such deliveries. 

International aid is often a lifeline to civilians trapped in conflict. And it would help women like Sebila to access contraception, avoid risky childbirth, and feed their children.

Author: Human Rights Watch
Posted: January 1, 1970, 12:00 am

Sarah Jamal Ahmed, a 24-year-old sociologist who was one of the activists during the 2011 uprising in Sanaa, stands by posters of dead protesters posted in the streets.

© 2012 Panos/Abbie Trayler-Smith

The revolution made us proud to be there on the front line and men were forced to accept us. But now there are some who think it is time for women to go home.

—Salwa Bughaighis, lawyer and human rights activist, Benghazi, Libya, July 2012[i]

In 2011, women were at the forefront as the Arab Spring erupted in Libya, organizing and demanding their rights to have a voice in their country’s future. The ensuing civil war resulted in the former Libyan leader Muammar Gaddafi being toppled.  In the transitional period following that armed conflict women organized as voters and candidates in preparation for elections, documented human rights abuses, and worked to ensure any new constitution would enshrine women’s rights.

The revolution made us proud to be there on the front line and men were forced to accept us. But now there are some who think it is time for women to go home.

Salwa Bughaighis

Lawyer and human rights activist, Benghazi, Libya, July 2012

Iman and Salwa Bughaighis—sisters and human rights activists—were among the key organizers of the first demonstrations against Gaddafi in Benghazi in February 2011. “The revolution was an earthquake to the cultural status of women in Libya,” Iman told Human Rights Watch.

But the space for women’s political participation soon began to shrink. As the wrangling intensified over power and the future of Libya, women found themselves facing significant obstacles to their full participation in the country’s transitional processes, and even targeted for violence. On June 25, 2014, following threats, unidentified gunmen murdered Salwa Bughaighis in her home in Benghazi. One month later, on July 17, unidentified assailants shot dead Fariha al-Barkawi, a former lawmaker, in the eastern city of Derna.[ii] Both crimes are among hundreds of apparently politically motivated killings in post-Gaddafi Libya that remain uninvestigated and unprosecuted.

On the eve of Libya’s first democratic national election, Haja Nowara held a vigil in the square outside the courthouse in Benghazi, where she had spent many evenings supporting the revolution since early 2011. “I have waited my whole life for tomorrow, which will be a new day for Libya,” said Nowara, who would be voting for the first time in her life. “We sacrificed a lot to get here.”

© 2012 Samer Muscati/Human Rights Watch

In its treatment of women and girls in wartime and in the post-war transition, Libya is sadly unexceptional.  Throughout history, women and girls have often been targeted in wartime for violence, especially sexual violence.  And they have also been denied the ability to participate in conflict prevention and post-conflict resolution efforts. Governments and non-state armed groups did not pay attention to the use of rape as a weapon of war, nor to the exclusion of women from crucial decision-making on conflict resolution and prevention, until women themselves mobilized for recognition and action.

This document sets out the commitments that the international community has since made to women and girls affected by armed conflict and outlines the major disappointments and gaps in implementation in three distinct but interconnected areas: participation; protection and assistance; and accountability. It also makes recommendations to governments, to all parties to armed conflicts, and to the UN on how to turn the promises made to women and girls in these three areas into reality.

Security Council Resolution 1325

After sustained advocacy efforts from women’s civil society organizations, the United Nations Security Council, in 2000, adopted Resolution 1325 on women, peace and security.[iii] It was the Security Council’s first dedicated resolution that recognized the specific risks to and experiences of women in armed conflict and women’s central role in maintaining international peace and security. Resolution 1325 elucidated states’ obligations to women and girls in situations of armed conflict, including ensuring that women are involved in all aspects of conflict prevention, conflict resolution, and post-conflict rebuilding. As broadly understood, the women, peace and security agenda acknowledges the linkages between participation, protection and assistance, and accountability, and the centrality of these issues to broader human rights concerns.

Angelina, 20, from Koch county, was spared in May when members of government aligned militia abducted three women and a teenage girl who she was hiding with. “When I fled [my village], I felt very tired and I sometimes would fall and have to use my arms to pull myself forward on the ground,” said the 20-year-old who has a physical disability. “I arrived [at the UNMI SS camp] three weeks after the attack. My whole body was swollen.” 

© 2015 Samer Muscati/Human Rights Watch

This groundbreaking resolution and the subsequent resolutions on women, peace and security elaborate the responsibilities of all parties to ensure the meaningful “participation of women in all levels of decision-making” in institutions and mechanisms for the prevention, management, and resolution of armed conflict, calling on all actors in peace talks to increase women’s participation in negotiations, and to ensure women’s rights are addressed in peace agreements.[iv] The resolutions remind all parties to armed conflicts of their obligations under international law, particularly civilian protection in armed conflicts, and call for states to end impunity for crimes of gender-based violence in armed conflicts. They urge the UN and governments to take steps to increase the number of women throughout the justice sector, and in armed forces. In these resolutions, the Security Council also states its intention to ensure it incorporates women, peace and security in its own work, including through consulting with civil society.

The resolution has given women around the world increased attention and legitimacy in their work in areas of armed conflict. Since the resolution’s adoption in 2000, many governments have begun to recognize that women’s roles in peace processes are not negotiable add-ons, but fundamental to sustainable and implementable peace accords. Security Council resolutions and commitments by UN member states have recognized conflict-related sexual violence as a tactic often ruthlessly deployed in war, and have expanded international prevention and response efforts. Governments and international bodies have introduced new policy frameworks, including additional Security Council resolutions, on women, peace and security at the national, regional, and multilateral levels. The UN is starting to collect data on a range of protection and participation aspects—from sexual violence in armed conflicts to women in peace talks—allowing policymakers and program implementers to begin to track where there has been success and where problems persist.

Much Work Remains

The remaining challenges are many. There is a lack of concerted, high-level leadership willing to spend political capital at key policy moments, such as in Security Council negotiations and in peace talks. There is insufficient and irregular funding, particularly for grassroots organizations working on women’s local-level peacebuilding and service provision.[v] Despite the improvement in data collection, there remains a lack of timely and disaggregated information for policymakers on women and girls in crisis situations, accompanied by a lack of analysis and recommendations for policymakers on appropriate action to take.[vi] Despite the heightened risk of violence faced by lesbian, gay, bisexual, and transgender (LGBT) individuals and women with disabilities in situations of armed conflict, specific measures for them are rarely incorporated into policy and programming, often leaving these populations out of decision-making processes and unable to access services.

Sexual violence during Nepal’s 10 year conflict between Maoists and government forces has remained largely undisclosed. 

©2014 Arantxa Cedillo for Human Rights Watch

The UN Security Council, despite six subsequent resolutions on women, peace and security, often fails to bring these issues into its work on crisis situations. Despite the Security Council members’ meeting with women civil society representatives on its 2013 visit to the Great Lakes region, the subsequent report on the mission contained no substantive analysis or recommendations on women’s rights and concerns.[vii] Briefings from senior UN officials often lack specific information on women’s rights violations, on the inclusion of women in peacemaking efforts, and on the levels of women’s participation in security reform. Use of sanctions and other tools at the Security Council’s disposal are similarly haphazardly applied with respect to women, peace and security.[viii]  The Security Council rarely takes advantage of information on perpetrators to hold them to account and prevent future violations. For example, despite evidence of widespread crimes of sexual violence committed by Sudanese forces in Tabit in Darfur in 2014, the Security Council has not adopted a strong response.[ix] 

With women’s rights high on their rhetorical agenda, practical support among donor countries lags. It is rare, for example, that donors make women’s rights and women’s participation in decision-making a priority in political engagement with conflict-affected countries. Too often, including in countries such as Afghanistan and Somalia, officials assert it is not the right time to push for women’s rights, that security is somehow a prerequisite for women’s rights rather than inextricably linked with them, or that they do not have the leverage to act.[x]

For women and girls living in situations of armed conflict, participation, protection and assistance, and accountability for gender-based crimes remain a distant promise. As detailed in the following sections, it will take strong action backed by persistent political will for the potential of the women, peace and security agenda to be realized.

Nigerian girls in a refugee camp near Lake Chad in Chad. 

© 2015 Samer Muscati/Human Rights Watch

Participation

When Afghan women were asked their definition of security, we used the word “amnyat wa masuniat,” by which we mean a comprehensive feeling of safety when engaged in daily public and social life. The success of peace agreements must be gauged by real, measurable security improvements for women and for all members of the community, not just that a peace agreement has been signed. Excellencies, peace is a process, not an event. We look to you as Member States, including members of the Security Council, to ensure that women are consistently appointed as mediators and negotiators, and that our rights are fundamental to peace processes and outcomes.

—Statement by Orzala Ashraf Nemat, Afghan civil society representative and women’s rights advocate, delivered in the UN Security Council on behalf of the NGO Working Group on Women, Peace and Security, New York, October 28, 2011[xi]

Despite years of rhetoric on the importance of women’s participation in Afghanistan peace processes, no women have been included in over 20 known rounds of informal talks between the international community and the Taliban. In talks between the Afghanistan government and the Taliban, women were present on two occasions.[xii] In most situations of armed conflict and post-conflict, women have few channels and face formidable obstacles to participating in conflict prevention, conflict-resolution, and political processes such as elections and constitutional reform.

The success of peace agreements must be gauged by real, measurable security improvements for women and for all members of the community, not just that a peace agreement has been signed. Excellencies, peace is a process, not an event. We look to you as Member States, including members of the Security Council, to ensure that women are consistently appointed as mediators and negotiators, and that our rights are fundamental to peace processes and outcomes.

Statement by Orzala Ashraf Nemat

Afghan civil society representative and women’s rights advocate, delivered in the UN Security Council on behalf of the NGO Working Group on Women, Peace and Security, New York, October 28, 2011

Women have little representation in formal peace talks. Available UN and academic data show that women are rarely present in these negotiations, and specific rights and concerns of women and girls are rarely reflected in peace agreements. One study of peace processes from 1992-2011 shows that only 4 percent of signatories to peace agreements have been women, and only 18 out of 300 peace agreements signed between 1998 and 2008 addressed any aspect of women’s rights and concerns.[xiii] Women struggle to have their voices heard, but examples of greater women’s involvement are gradually increasing. In Colombia, for example, women are present as permanent members of the negotiation delegation, and a sub-committee on gender in the negotiations was established in 2014, and women’s rights are discussed in the substantive talks. This happened after concerted pressure from civil society organizations, supported by UN Women.[xiv] Despite these gains, however, women’s civil society organizations have not been afforded a formal role in the Colombia negotiations.

Those facilitating formal peace talks often fail to recognize women’s work in community-level peace efforts.  When the opportunity to engage in formal peace talks arose in the 2014 Geneva II talks, Syrian women mobilized. With support from international nongovernmental organizations, UN member states, and the UN, women met behind closed doors with the Security Council, held consultative meetings to draft consolidated demands, and worked with women peacemakers from Ireland, Guatemala, and Bosnia-Herzegovina on strategies for engaging in the peace process.[xv] But when they met with the UN special envoy to Syria, Lakdhar Brahimi, he did not stay to hear their concerns and recommendations. “Mr. Brahimi, we are already building peace in Syria,” the women said, although Brahimi, effectively the chief mediator of Syria’s peace process, had already left the meeting. “We can help you if you let us.”[xvi]  Brahimi’s successor, Staffan de Mistura, has consulted with Syrian women’s groups, despite the stalling of the formal peace process.

Two activists working with the Association for Crisis Assistance and Development Co-operation (WADI), a German-Iraqi human rights group supporting Yezidi women and girls who escaped ISIS. WADI has three mobile units that visit women and girls in camps and settlements. It is seeking funds to build a center for training courses and social activities.

©2015 Samer Muscati/Human Rights Watch

Women should have seats at all decision-making tables, and women’s rights and concerns should be included in the outcomes of conflict negotiations. For example, women's rights should be reflected in humanitarian access agreements, human rights agreements, ceasefires, ceasefire monitoring, and in disarmament, demobilization, and reintegration (DDR) efforts agreed to by parties to a conflict. They should also be integrated throughout security sector reforms, including the vetting of armed and security forces, justice, reparations, and in relief and recovery programs.[xvii] Women’s participation is also the key to ensuring their protection and minimizing risks in displacement settings. This includes in the design of refugee and internally displaced person (IDP) camps so that women and girls are not placed at further risk in those settings.[xviii] Targeted efforts need to be made to ensure that the diversity of women’s perspectives is reflected in all aspects of conflict resolution and peacebuilding. For example, women with disabilities face unique challenges and can share their problem-solving approaches in conflict resolution and peacebuilding efforts.

Women human rights defenders often face risks, particularly in times of armed conflict. Even when women can legally conduct their work, they may face physical assault, sexual violence, and threats far greater than their male counterparts. Human Rights Watch has documented physical attacks, death threats, threatening phone calls, sexual harassment and assault, rape, and threats against children of activists in armed conflicts, all of which can create a chilling environment in an effort to silence these women.[xix] In the 2015 Sudan elections, for example, National Intelligence and Security Service officers arrested Dr. Sandra Kadouda, a prominent political and human rights activist, on April 12 as she drove to an anti-elections event at the National Umma Party headquarters in Omdurman. The authorities held her for three days at an unknown location, and then freed her on April 15, visibly bruised and with injuries to her shoulder, credible sources reported.[xx]

Women should also have the opportunity to participate in security forces without facing discrimination or harassment.  Women often are subject to hostile work environments that dissuade them from staying in or even joining police and military services. In Afghanistan, for example, despite efforts to increase their numbers, women have remained about 1 percent of the Afghan police over the last several years.[xxi] In addition to a lack of the most basic toilet and changing room facilities, women in the Afghan police face abuse and sometimes assault, including sexual assault, by male colleagues. Despite multiple reports of such incidents, these crimes often go unpunished, and government officials, including the minister of interior, have denied that abuses against women officers are a problem.[xxii]

Recommendations to Governments, Parties to Armed Conflict, UN agencies, and the UN Secretariat

  1. Implement national-level policies, including National Action Plans, on UN Security Council Resolution 1325, to ensure the full and meaningful participation of women in all peace and security discussions, including in all peace processes and transitional justice mechanisms. All parties involved in peace negotiations, including mediators and facilitators, should act to ensure women’s rights and concerns are a priority in negotiations and are integrated throughout any agreement. All discussions should benefit from the full engagement of civil society organizations, including women’s rights groups, women from marginalized populations, such as ethnic and religious minorities, and women with disabilities.
     
  2. Safeguard women’s security and support women’s participation in post-conflict elections, referendums and constitutional drafting, and reform processes. This includes promotion and protection of women candidates, voters, election workers, and women’s human rights defenders.
     
  3. Protect women’s human rights defenders. Governments should monitor threats and attacks against women's human rights defenders and provide protection as requested in a manner that allows them to continue their work.
     
  4. Strengthen recruitment and retention strategies for women in the security sector, including by addressing cultural and practical barriers that women face, by providing specific training and facilities, and ensuring women have equal opportunities for responsibility and advancement.
  5. Ensure women’s leadership and protection in displacement settings. Encourage and facilitate women’s representation in the leadership of camps and centers for the internally displaced and refugees. UN agencies should consult with women and girls, including those with disabilities, to ensure camp designs are accessible, safe, disability-inclusive, and provide equal access to food distributions, sanitation facilities, health—as well as reproductive health—services, education, and vocational training for women and girls.

A female election worker helps an elderly voter at a polling station in Benghazi. The electoral law rightly allowed people with “special needs” to bring assistants. However, barriers remain to ensure the right to political participation for women and men with disabilities.

© 2012 Samer Muscati/Human Rights Watch

Protection and Assistance

The government should give us proper shelter with a fence and an entrance. Police should secure the camp and manage who comes and goes. The worst thing is that the rapes push us into poverty because afterward we cannot do the same work or carry heavy loads. We need money for our kids to live. The government should do something or kids will die of hunger.

—Farxiyo, who was raped in an IDP camp, Mogadishu, Somalia, August 2013[xxiii]

No one has offered me one-on-one counselling of any kind. I’d be interested in receiving professional counseling to help me process my experiences if it was available.… I have trouble sleeping at night, and only sleep a few hours at a time. When I sleep, I often see my parents and siblings in front of my eyes, especially the image of my brothers being forced to kneel on the road, and my mother’s face.

—Narin (pseudonym), 20-year-old woman from Sinjar who escaped captivity and sexual abuse by ISIS fighters, Dohuk, Iraq, January 2015[xxiv]

In armed conflicts around the globe, combatants frequently target women and girls for abuse. National armies and non-state armed groups use sexual violence as a tactic in war in violation of international law.  Conflict-related sexual violence can include rape, abduction, forced prostitution, forced marriage, sexual slavery, and forced pregnancy. 

Women and girls face multiple abuses in war, in addition to conflict-related sexual violence, including: forced displacement; the targeting and punishment of women because of their own activism or activism by male relatives; the drive towards early, forced, and child marriages because of instability and a lack of security for girls and younger women; an increase in domestic violence and sexual violence committed by civilians; lack of access to food, shelter, and health care; the interruption of education; and sexual exploitation and trafficking, to name but a few.

The government should give us proper shelter with a fence and an entrance. Police should secure the camp and manage who comes and goes. The worst thing is that the rapes push us into poverty because afterward we cannot do the same work or carry heavy loads. We need money for our kids to live. The government should do something or kids will die of hunger.

Farxiyo, who was raped in an IDP camp, Mogadishu, Somalia, August 2013

For example, Human Rights Watch has documented the abuse faced by Syrian women activists and other civilians.[xxv] Some of these women have long histories of activism while others began participating politically only after the beginning of uprisings against the Syrian government. Some were targeted or arbitrarily detained for their work, such as Jelnar, who used her pharmaceutical credentials to smuggle medications between neighborhoods. Several of them experienced torture, sexual assault, physical abuse, or harassment as a direct result of their activism, like Layal, who was detained by government forces for assisting the internally displaced. Others became household heads following their husbands’ detention or death, such as Zeinab, who lost her husband and son in separate incidents at the hands of government forces.

In Sudan’s ongoing armed conflicts, Sudanese government forces and allied militias have committed rape and other sexual violence against women and girls on numerous instances. For example, Sudanese military forces engaged in the mass rape of more than 200 women and girls in the town of Tabit, Darfur, in late 2014, restricted access to the town for UN and international investigators, peacekeepers, and humanitarian agencies, and threatened residents with reprisals if they spoke about their ordeals. Government authorities fostered a climate of fear in Tabit that deterred many women and girls from seeking medical care at clinics and hospitals.[xxvi]  

Adequate protection measures are vital to ensuring the safety of women and girls, but when attacks do happen, service provision is vital for survivors. In Nigeria, numerous victims and witnesses interviewed by Human Rights Watch expressed concern about the lack of security force presence in areas particularly vulnerable to attack by Boko Haram, notably in towns and villages in Borno State. Victims, witnesses, community leaders, and analysts told Human Rights Watch that government security services could have done more to prevent attacks by ensuring the adequate presence and arming of military personnel, and by responding more quickly and effectively to reports of attacks once in progress. Survivors of Boko Haram attacks received virtually no necessary psychosocial and medical services, and none of the rape survivors interviewed by Human Rights Watch had any information about how and where to access post-rape care.[xxvii]

Manal Ameer, 33, pictured here with her two daughters, was among the first to vote in Benghazi. She said she had learned about the election process through television advertising and had researched candidates via the Internet.

© 2012 Samer Muscati/Human Rights Watch

In northern Iraq, the extremist group Islamic State (also known as ISIS) has carried out systematic rape and other sexual violence against Yezidi women and girls since August 2014. Human Rights Watch documented a system of mass abduction, organized rape and sexual assault, sexual slavery, and forced marriage by ISIS forces.[xxviii] Many of the women and girls remain missing, but survivors who escaped to the Kurdish Region of Iraq need psychosocial support and basic humanitarian assistance. These survivors require specialized and expert psychosocial services in their present locations to aid their recovery and their reintegration into their communities. Few have received these.

Women and girls in displaced populations are at increased risk of sexual and gender-based violence, and of becoming victims of sex and labor trafficking.[xxix] Humanitarian crises often mean that women and girls are placed at greater risk of violence, with specific measures such as camp design and humanitarian relief necessary. Human Rights Watch research has found that women and girls with disabilities were frequently abandoned or left behind in crises, condemning them to face isolation, neglect, and abuse in post-conflict settings.[xxx] Despite commitments from governments and the UN, prevention efforts, access to services, and holding perpetrators accountable all remain extremely weak, and in some cases, non-existent.

Women displaced by armed conflict often find it difficult to access necessary long-term protection and humanitarian assistance. In Colombia, in an example that highlights the complexity of long-term access to assistance, Lucia fled her community in Antioquia with her husband and six children when an armed group threatened her son for refusing to join their ranks in 2010. Lucia’s husband had physically abused her and this became worse after the family fled to Medellín. Despite trying to access humanitarian assistance for herself and her children directly, the government agency never responded to her case. [xxxi]

No one has offered me one-on-one counselling of any kind. I’d be interested in receiving professional counseling to help me process my experiences if it was available.… I have trouble sleeping at night, and only sleep a few hours at a time. When I sleep, I often see my parents and siblings in front of my eyes, especially the image of my brothers being forced to kneel on the road, and my mother’s face.

Narin (pseudonym)

20-year-old woman from Sinjar who escaped captivity and sexual abuse by ISIS fighters, Dohuk, Iraq, January 2015

Women with disabilities in displacement settings also face discrimination on the basis of gender, disability, and poverty, and thus need particular measures to address protection concerns.[xxxii] Lack of mobility and communication barriers, for example, mean women with disabilities are at particular risk of sexual violence. This discrimination, as well as more general social stigma, prevents them from realizing their rights to accessible information, and accessing health care and other government services. In a displacement camp in Northern Uganda, Charity, a woman with a physical disability, recounted her experience: “People told me I should just die so others can eat the food: ‘You are useless. You are a waste of food.’”[xxxiii]

In line with their obligations under international humanitarian law—the laws of war—parties to armed conflicts should take all feasible measures to protect civilians under their control from attack, including protecting women and girls from sexual and other gender-based violence.[xxxiv]  International human rights law also applies during armed conflict, and provides protections to women and girls against sexual violence and other abuses, including domestic violence.[xxxv] States have obligations to investigate credible allegations of war crimes and other serious human rights abuses and prosecute those responsible.

International humanitarian and human rights law prohibit acts of sexual violence. International humanitarian law sets out protections for civilians and other non-combatants during both international and non-international armed conflicts.[xxxvi] It implicitly and explicitly prohibits both state armed forces and non-state armed groups from committing rape and other forms of sexual violence.[xxxvii]

International human rights law also contains protections from rape and other forms of sexual abuse through its prohibitions on torture and other ill-treatment, slavery, forced prostitution, and discrimination based on sex.[xxxviii]  The Convention on the Rights of the Child contains additional protections for children.[xxxix]

Recommendations to Governments, Parties to Armed Conflicts, UN agencies, and the UN Secretariat

  1. Comply with international humanitarian law and human rights law prohibitions of rape and other forms of sexual violence, sexual slavery, cruel treatment, and other abuses. All parties to armed conflicts should issue clear, public orders to all forces under their control to end and appropriately punish all abuses, including crimes of sexual and gender-based violence.
     
  2. Governments providing military and other security assistance should ensure that such support does not encourage or facilitate abuses against women, and that it provides a basis for promoting greater respect for women’s rights.  Compliance with international human rights standards should be a factor in evaluating the continuation of such support. Governments should vet recipients of this assistance to exclude units or individuals when there is credible information they have been involved in serious violations of human rights.
     
  3. Ensure that survivors of sexual violence and other gender-based violence have access to essential medical and psychological care, as well as available economic and social support. Humanitarian aid should include access to the full range of sexual and reproductive health services that respect the confidentiality and rights of survivors, including for pregnancy, termination of pregnancy, and injuries resulting from sexual violence, with specific measures taken to ensure these services are accessible for women with disabilities.
     
  4. Make women’s and girls’ protection and access to assistance a priority in displacement settings, including through consultation, promoting women’s leadership, camp and shelter design, registration and distribution systems, security measures, and recruitment and training of female security staff.
     
  5. Ensure all parties to armed conflicts grant UN agencies and independent humanitarian organizations unfettered access to civilians and communities in need of assistance. The media and human rights groups should also be provided access to conflict areas.
     
  6. Governments and the UN should highlight women’s participation, protection, and assistance concerns at the highest levels, including by conducting high-level visits to areas where serious abuses have been reported and raising the issues with senior government officials, donor governments, and regional and international bodies. Security Council members should press all parties to armed conflicts to meet all international law obligations.
     
  7. The UN Security Council and concerned governments should impose arms embargoes on state armed forces and non-state armed groups implicated in widespread or systematic serious human rights abuses, including those targeting women and girls. The Security Council should require states to suspend all military sales and assistance, including technical training and services, to these abusive actors until meaningful steps are taken to end such violations and appropriately punish those responsible. Travel bans and asset freezes should also be imposed on individuals responsible for serious abuses, with appropriate due process protections.

“For three months, I had a feeling that one of us was going to die,” said Maha, 28 (left), of the young activists group in which she participated. In November, 2012, she and fellow members of the group had just finished a peaceful protest outside a mosque in Aleppo, when government shelling struck the site, killing her husband of only a few weeks. Her sister Nuha, 23 (right), also an activist, was kidnapped by pro-government militia while on her way to work in Damascus in August 2012 and held for 23 days. 

©2014 Samer Muscati/Human Rights Watch

Accountability

We want these people punished. We just don’t have the reach or the power. If I did, we would have dealt with it a long time ago. We need support.

—Husband of Nandita (pseudonym), who was raped in 2001 because her husband was a Maoist combatant, Nepal, April 2014[xl]

Perpetrators of abuses in armed conflicts rarely face justice and, by all accounts, are even less likely to when responsible for sexual violence against women and girls. In November 2012, in Minova, Democratic Republic of Congo, Congolese army soldiers raped at least 76 women and girls when nearby Goma fell to the M23 rebel group.[xli] The crimes created an outcry at the national and international level. Strong international pressure was brought on the Congolese authorities to pursue justice. The UN threatened to suspend support by the peacekeeping mission MONUSCO to the Congolese army unless those responsible were brought to justice. The UN Security Council and donor governments raised the need for accountability for the crimes in Minova in multiple statements and in meetings with Congolese authorities. High-profile visits to the area by the Congolese minister of justice, the wife of President Joseph Kabila, UK Foreign Minister William Hague, and UN refugee agency special envoy Angelina Jolie, raised attention to the issue.

Three years after the attacks, accountability, services, and security are still insufficient. Despite considerable efforts by Congolese authorities and international partners to ensure judicial proceedings in the case, including by providing for the participation of numerous victims and effective protection of victims and witnesses, the verdict did little to achieve justice. Out of 39 soldiers and officers brought to trial, only 2 rank-and-file soldiers were convicted of rape.  All mid-ranking officers present in Minova at the time of the crimes and brought to trial were completely acquitted. No high-level officers were even charged.[xlii] 

The Minova case illustrates the difficulties of ensuring accountability for conflict-related sexual violence. Congolese authorities and international partners have made considerable efforts to increase accountability for sexual violence in Congo over the past several years, resulting in a few trials involving charges of rape as a war crime or a crime against humanity, and dozens of proceedings and convictions for rape as an ordinary crime. Investigating and proving sexual violence in judicial proceedings remains a complex matter and further efforts are needed.

We want these people punished. We just don’t have the reach or the power. If I did, we would have dealt with it a long time ago. We need support.

Husband of Nandita (pseudonym), who was raped in 2001 because her husband was a Maoist combatant, Nepal, April 2014

Women and girls who suffer rights abuses in armed conflicts, including sexual violence, face tremendous barriers in obtaining redress. Regular police and court functions may be in disarray. They may not wish to seek avenues for justice out of fear of retaliation or marginalization in their communities and homes. They may lack the financial or logistical means to access courts and legal assistance. National judicial systems often lack expertise in handling vulnerable victims of sexual violence during investigations and prosecutions. Physical protection and psychological assistance may be lacking. There may be strong resistance to or lack of resources for reforming the security apparatus in the immediate and long-term aftermath of an armed conflict. Disarmament, demobilization, and reintegration programs often neglect to address female combatants and women euphemistically called “bush wives,” or women who are associated with armed groups, often forcibly. Women with disabilities have particular difficulty accessing redress or justice mechanisms, including physical barriers in entering police stations and courtrooms, communication barriers, or questioning of the credibility of their testimony if they have a psychosocial or intellectual disability.

Even when international peacekeeping forces are in place to bring stability to conflict-riven regions, they are sometimes perpetrators themselves. Although the UN has a “zero tolerance” policy on sexual exploitation and abuse, accountability for these crimes remains a concern.[xliii] For example, in the past decade, there have been allegations of sexual exploitation and abuse in peacekeeping missions in the Central African Republic, Haiti, Somalia, and the Democratic Republic of Congo. The persistent lack of transparency on these cases makes it very difficult to help victims seek justice. With the UN historically providing few specifics on allegations of abuse, and few countries that contribute troops and police to UN operations providing information on investigations and prosecutions, the scope of the problem is unclear. In one of the few cases in which public information is available on accountability for UN peacekeepers, a Pakistani peacekeeper charged with sexually assaulting a Haitian boy was convicted, and faced a one-year sentence upon conviction.[xliv]

A woman prisoner looks out a window in Parwan prison north of Kabul, Afghanistan, in February 2011.The woman was convicted of moral crimes after a man from her neighborhood raped her. She later gave birth in prison.

© 2011 Farzana Wahidy

When crimes of sexual violence are committed as part of armed conflict, they can be prosecuted as war crimes. States have an obligation to investigate alleged war crimes committed by members of the armed forces and other nationals, and prosecute those responsible.[xlv] Non-state armed groups also have an obligation to prevent war crimes and should investigate and appropriately punish perpetrators.[xlvi] Those acts of sexual violence committed as part of a widespread or systematic attack against a civilian population may amount to crimes against humanity. The Rome Statute of the International Criminal Court (ICC) specifies that acts of rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity can constitute war crimes or crimes against humanity.[xlvii]

Aside from their direct criminal responsibility for crimes committed, for instance, by issuing orders that subordinates carry out, commanders and other superiors may be criminally liable for failing to prevent or punish crimes committed by their subordinates.[xlviii]

International human rights law also enshrines the right to an effective remedy, which obligates the state to prevent, investigate, and punish serious human rights violations.[xlix] State should also provide reparations to victims of human rights violations, such as compensation for damages.[l] The UN has reaffirmed these principles specifically in relation to eliminating violence against women.[li]

Recommendations to Governments, UN agencies, and the UN Secretariat

  1. Ensure comprehensive, credible, and impartial investigations into sexual and gender-based violence and appropriately and fairly prosecute those responsible. This should include independent investigations into all allegations against members of armed forces, including peacekeepers, that respect the confidentiality and rights of survivors.
     
  2. Ensure accessible judicial processes that adhere to international fair trial standards for grave international crimes, including sexual and gender-based violence. This should include providing specialized training to investigators, prosecutors, and judges on the proper handling of such cases.  Adequate protection measures and psychological support should be available, before, during, and after trials, including, but not limited to, relocation measures for victims and their households. Judicial mechanisms should also be accessible for women with disabilities, including by facilitating access to police stations and courts, ensuring access to documentation, and relevant training for law enforcement and the judiciary.
     
  3. Strengthen independent institutions capable of responding to sexual and gender-based violence and supporting survivors. Governments should create accessible and safe channels to report rape, assault, and other abuses and issue clear, public orders to all security forces to end any harassment, intimidation, and arbitrary arrests of those who speak out or seek to enforce their rights. Reporting mechanisms should be fully inclusive and provide specific accommodations for women and girls with disabilities. Governments should ensure proper and timely investigations and prosecutions that respect the rights of the survivor.
     
  4. Enact security sector reform to provide vetting of police and other security personnel, ensure recruitment, hiring, and training of female security personnel, and provide training for prosecutors, as well as judges and defense lawyers, on respecting women’s rights in the justice system, including handling crimes of sexual violence. Identify and exclude individuals from the security forces who are under investigation, have charges pending against them, or have been subjected to disciplinary measures or criminal convictions for sexual violence or other serious abuses.
     
  5. Press for accountability and justice, including through the UN Security Council, General Assembly, and Human Rights Council. When national level efforts fail or are inadequate, pursue alternative paths to justice, such as independent commissions of inquiry, the use of universal jurisdiction, and when applicable, referrals to the ICC. In accordance with the ICC prosecutor’s newly adopted Policy Paper on Sexual and Gender-Based Crimes, the ICC should continue to ensure that these crimes are the focus of special attention in ICC proceedings.[lii]
     
  6. Ensure reparations programs meet international standards and include specific consideration for women and girls. Consult with local women’s rights groups and women from communities affected by armed conflict in determining and distributing reparation packages.
     
  7. Protect women’s rights in national laws and ensure they meet international standards. This includes ratifying the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) with no reservations, or removing any existing reservations to CEDAW. National laws should guarantee equality before the law, protection from violence, and freedom from discrimination, including on the basis of sex, gender, pregnancy, disability, and marital status. Consistent with international standards, sexual violence and other gender-based violence crimes should be included in the criminal code. Ensure accountability when these laws are violated.
     
  8. Institute measures to ensure accountability, including by raising public concern and urging relevant actors, including troop-contributing countries, to carry out immediate investigations when there are substantial grounds to believe that peacekeepers have committed serious human rights abuses or war crimes, including sexual exploitation and abuse.
 

[i] Human Rights Watch, A Revolution for All: Women’s Rights in the New Libya, May 2013,  https://www.hrw.org/report/2013/05/27/revolution-all/womens-rights-new-libya, p. 11.

[ii] “Libya: Extremists Terrorizing Derna Residents,” Human Rights Watch news release, November 27, 2014,  https://www.hrw.org/news/2014/11/27/libya-extremists-terrorizing-derna-residents.

[iii] United Nations Security Council, Resolution 1325 (2000), S/RES/1325 (2000) http://www.un.org/en/ga/search/view_doc.asp?symbol=S/RES/1325(2000) (accessed July 21, 2015).

[iv] United Nations Security Council, Resolution 1820 (2008), S/RES/1820 (2008) http://www.un.org/en/ga/search/view_doc.asp?symbol=S/RES/1820(2008) (accessed  July 21, 2015); United Nations Security Council, Resolution 1888 (2009), S/RES/1888 (2009) http://www.un.org/en/ga/search/view_doc.asp?symbol=S/RES/1888(2009) (accessed July 21, 2015); United Nations Security Council, Resolution 1889 (2009), S/RES/1889 (2009) http://www.un.org/en/ga/search/view_doc.asp?symbol=S/RES/1889(2009) (accessed July 21, 2015); United Nations Security Council, Resolution 1960 (2010), S/RES/1960 (2010) http://www.un.org/en/ga/search/view_doc.asp?symbol=S/RES/1960(2010) (accessed July 21, 2015); United Nations Security Council, Resolution 2106 (2013), S/RES/2106 (2013) http://www.un.org/en/ga/search/view_doc.asp?symbol=S/RES/2106(2013) (accessed July 21, 2015); United Nations Security Council, Resolution 2122 (2013), S/RES/2122 (2013) http://www.un.org/en/ga/search/view_doc.asp?symbol=S/RES/2122(2013) (accessed July 21, 2015).

[v] According to the 2014 Secretary-General’s report on women, peace and security, data compiled by the Organization for Economic Cooperation and Development shows that “only 0.35 per cent of aid allocated to conflict, peace and security activities [was] marked as having a gender focus.” United Nations Security Council, Report of the Secretary-General on women and peace and security,  S/2014/693, September 2014, http://www.securitycouncilreport.org/atf/cf/%7B65BFCF9B-6D27-4E9C-8CD3-CF6E4FF96FF9%7D/s_2014_693.pdf (accessed July 17, 2015).

[vi] Based on data from: NGO Working Group on Women, Peace and Security, “Mapping Women, Peace and Security in the UN Security Council: 2012-2013,” December 2013, http://womenpeacesecurity.org/media/pdf-2012-13_MAP_Report.pdf  (accessed July 8, 2015); and Women’s International League for Peace and Freedom, PeaceWomen, “Report Watch,” undated, http://www.peacewomen.org/security-council/report-watch (accessed July 8, 2015).

[vii] United Nations Security Council, Sixty-eighth year, 7045th meeting, October 21, 2013, http://www.un.org/ga/search/view_doc.asp?symbol=S/PV.7045 (accessed July 8, 2015).

 [viii] Based on data from: NGO Working Group on Women, Peace and Security, “Mapping Women, Peace and Security in the UN Security Council: 2012-2013”; Women’s International League for Peace and Freedom, PeaceWomen, “Report Watch”; and Security Council Report, “Cross Cutting Report: Women, Peace and Security,” April 2014,   http://www.securitycouncilreport.org/atf/cf/%7B65BFCF9B-6D27-4E9C-8CD3-CF6E4FF96FF9%7D/cross_cutting_report_2_women_peace_security_2014.pdf  (accessed July 8, 2015).

[ix] Human Rights Watch, Mass Rape in North Darfur: Sudanese Army Attacks against Civilians in Tabit, February 2015, https://www.hrw.org/report/2015/02/11/mass-rape-north-darfur/sudanese-army-attacks-against-civilians-tabit.

[x] Heather Barr, “A seat at the table in Afghanistan,” Washington Post, May 1, 2015, http://www.washingtonpost.com/opinions/a-seat-at-the-table-in-afghanistan/2015/05/01/fd930e26-ef41-11e4-8abc-d6aa3bad79dd_story.html (accessed July 16, 2015).

[xi] Statement by Orzala Ashraf Nemat at the UN Security Council Open Debate on Women, Peace and Security, October 28, 2011, http://womenpeacesecurity.org/media/pdf-Statement_OpenDebate_Oct2011.pdf (accessed July 16, 2015).

[xii] Oxfam “Behind Closed Doors: The risk of denying women a voice in determining Afghanistan’s future,” November 24, 2014, https://www.oxfam.org/sites/www.oxfam.org/files/file_attachments/bp200-behind-doors-afghan-women-rights-241114-en.pdf (accessed July 16, 2015).

[xiii] See UN Women, “Women’s Participation in Peace Negotiations: Connections between Presence and Influence,”  October 2012, http://www.unwomen.org/~/media/headquarters/attachments/sections/library/publications/2012/10/wpssourcebook-03a-womenpeacenegotiations-en.pdf (accessed July 20, 2015); and United Nations Security Council, Report of the Secretary-General on Women and Peace and Security, S/2011/598, September 29, 2011, http://www.un.org/en/ga/search/view_doc.asp?symbol=S/2011/598 (accessed July 27, 2015); S/2012/732, October 2, 2012, http://www.un.org/en/ga/search/view_doc.asp?symbol=S/2012/732 (accessed July 27, 2015); S/2013/525, September 4, 2013, http://www.un.org/en/ga/search/view_doc.asp?symbol=S/2013/525 (accessed July 27, 2015); and S/2014/693, September 23, 2014, http://www.un.org/en/ga/search/view_doc.asp?symbol=S/2014/693 (accessed July 27, 2015). See also, Christine Bell and Catherine O’Rourke, Women and Peace Agreements 1325 Dataset, Distributed by University of Ulster, Transitional Justice Institute, 2010 http://www.transitionaljustice.ulster.ac.uk/tji_database.html (accessed July 20, 2015).

[xiv] “Women take the reins to build peace in Colombia”, UN Women press release, May 28, 2015, http://www.unwomen.org/en/news/stories/2015/5/women-build-peace-in-colombia (accessed July 16, 2015).

[xv] Women’s International League for Peace and Freedom, “Innovative WILPF Conference Gathers Syrian And Bosnian Women’s Rights Activists,” February 21, 2014,  http://www.wilpfinternational.org/innovative-wilpf-conference-gathers-syrian-and-bosnian-womens-rights-activists-2/ (accessed July 16, 205); Cynthia Enloe, “Day I of the Syrian Women’s Peace Talks in Geneva: Prelude to the Official Syrian Peace Talks,” Women’s Action for New Directions,  January 20, 2014, http://www.wandactioncenter.org/2014/01/30/guest-author-cynthia-enloes-report-from-the-syrian-peace-talks/ (accessed July 16, 2015).

[xvi] “He Left Before Syria’s Women Could Speak,” Human Rights Watch Dispatch, December 19, 2013, https://www.hrw.org/news/2013/12/19/dispatches-he-left-syria-s-women-could-speak (accessed July 16, 2015).

[xvii] UNSCR 1888, Operative Paragraph 17; UNSCR 1820, Operative Paragraph 10; United Nations Disarmament, Demobilization and Reintegration Resource Centre (UNDDR), Integrated Disarmament, Demobilization and Reintegration Standard, “5:10, Women, Gender and DDR,” August 2006, http://unddr.org/uploads/documents/IDDRS%205.10%20Women,%20Gender%20and%20DDR.pdf (accessed 21 July 2015).

[xviii] United Nations Security Council, Resolution 1325, Operative Paragraph 12.

[xix] “UN Human Rights Council: Call to Recognize the Status of Women's Human Rights Defenders,” Human Rights Watch Oral Statement during the Annual Day of Discussion on Women's Human Rights, June 26, 2012, https://www.hrw.org/news/2012/06/26/un-human-rights-council-call-recognize-status-womens-human-rights-defenders.

[xx] “Sudan: Surge in Detention, Beatings, Around Elections,” Human Rights Watch news release, April 28, 2015, https://www.hrw.org/news/2015/04/28/sudan-surge-detention-beatings-around-elections.

[xxi] “Afghanistan: Urgent Need for Safe Facilities for Female Police,” Human Rights Watch news release, April 25, 2013, https://www.hrw.org/news/2013/04/25/afghanistan-urgent-need-safe-facilities-female-police.

[xxii] “Afghanistan: Surge in Women Jailed for ‘Moral Crimes,’” Human Rights Watch news release, May 21, 2015, https://www.hrw.org/news/2013/05/21/afghanistan-surge-women-jailed-moral-crimes.

[xxiii] Human Rights Watch, “Here, Rape is Normal”: A Five-Point Plan to Curtail Sexual Violence in Somalia, February 2014, https://www.hrw.org/report/2014/02/13/here-rape-normal/five-point-plan-curtail-sexual-violence-somalia.

[xxiv] “Iraq: ISIS Escapees Describe Systematic Rape,” Human Rights Watch news release, April 14, 2015, https://www.hrw.org/news/2015/04/14/iraq-isis-escapees-describe-systematic-rape.

[xxv] Human Rights Watch, “We are Still Here”: Women on the Front Lines of Syria's Conflict, July 2014, https://www.hrw.org/report/2014/07/02/we-are-still-here/women-front-lines-syrias-conflict.

[xxvi] “Sudan: Soldiers, Militias Killing, Raping Civilians,” Human Rights Watch news release, December 14, 2014, https://www.hrw.org/news/2014/12/14/sudan-soldiers-militias-killing-raping-civilians; “Sudan: Mass Rape by Army in Darfur,” Human Rights Watch news release, February 11, 2015, https://www.hrw.org/news/2015/02/11/sudan-mass-rape-army-darfur.

[xxvii] Human Rights Watch, “Those Terrible Weeks in their Camp”: Boko Haram Violence against Women and Girls in Northeast Nigeria, October 2014, https://www.hrw.org/report/2014/10/27/those-terrible-weeks-their-camp/boko-haram-violence-against-women-and-girls.

[xxviii] “Iraq: ISIS Escapees Describe Systematic Rape,” Human Rights Watch news release, April 14, 2015, https://www.hrw.org/news/2015/04/14/iraq-isis-escapees-describe-systematic-rape.

29 United Nations Security Council, Report of the Secretary-General on women and peace and security,  S/2014/693, p. 19.

[xxx] Human Rights Watch, “As if We Weren’t Human”: Discrimination and Violence against Women with Disabilities in Northern Uganda, August 2010, https://www.hrw.org/report/2010/08/26/if-we-werent-human/discrimination-and-violence-against-women-disabilities-northern.

[xxxi] Human Rights Watch, Rights Out of Reach: Obstacles to Health, Justice, and Protection for Displaced Victims of Gender-Based Violence in Colombia, November 2012, https://www.hrw.org/report/2012/11/14/rights-out-reach/obstacles-health-justice-and-protection-displaced-victims-gender, p. 5.

[xxxii] World Bank and World Health Organization, “World Report on Disability,” 2011, http://whqlibdoc.who.int/publications/2011/9789240685215_eng.pdf (accessed July 21, 2015), p. 8.

[xxxiii] Human Rights Watch, “As if We Weren’t Human.”

[xxxiv] See International Committee of the Red Cross (ICRC), Customary International Humanitarian Law (Cambridge, UK: Cambridge University Press, 2005), rule 22, citing Protocol I, art. 58(c) and rule 93 (prohibiting rape and other forms of sexual violence).

[xxxv] The International Covenant on Civil and Political Rights (ICCPR) prohibits torture and other cruel, inhuman, or degrading treatment (art. 7) and protects women’s right to be free from discrimination based on sex (arts. 2(1) and 26). ICCPR, adopted December 16, 1966, G.A. Res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force March 23, 1976; Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted December 10, 1984, G.A. res. 39/46, annex, 39 U.N. GAOR Supp. (No. 51) at 197, U.N. Doc. A/39/51 (1984), entered into force June 26, 1987, arts. 2 and 16; Rome Statute, arts. 7 and 8. The UN Human Rights Committee has stated that governments violate their treaty obligations not only when state actors are responsible for the action, but also when the state fails to take necessary steps to prevent violations caused by private actors. The committee’s General Recommendation No. 31 to the ICCPR notes that governments must “take appropriate measures or … exercise due diligence to prevent, punish, investigate or redress the harm caused by such acts by private persons or entities.” The Committee against Torture requires governments to prevent and protect victims from gender-based violence and rape by exercising due diligence in investigating, prosecuting, and punishing perpetrators—even private actors—of rape and sexual assault.

[xxxvi] See four Geneva Conventions of 1949 and their two Protocols Additional of 1977. Other sources of international humanitarian law are the 1907 Hague Convention and Regulations, decisions of international tribunals, and customary law.

[xxxvii] Article 3 common to the four Geneva Conventions of 1949.

[xxxviii] The International Covenant on Civil and Political Rights; Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), adopted December 18, 1979, G.A. res. 34/180, 34 U.N. GAOR Supp. (No. 46) at 193, U.N. Doc. A/34/46, entered into force September 3, 1981.

[xxxix] Convention on the Rights of the Child, G.A. res. 44/25, annex, 44 U.N. GAOR Supp. (No. 49) at 167, U.N. Doc. A/44/49 (1989), entered into force Sept. 2, 1990, arts. 2, 34, 37, 43.

[xl] Human Rights Watch, Silenced and Forgotten: Survivors of Nepal’s Conflict-Era Sexual Violence, September 2014, https://www.hrw.org/report/2014/09/23/silenced-and-forgotten/survivors-nepals-conflict-era-sexual-violence.

[xli] The United Nations has documented at least 135 victims in this case. The United Nations Organization Stabilization Mission in the Democratic Republic of the Congo (MONUSCO) and Office of the High Commissioner for Human Rights (OHCHR), “Report of the United Nations Joint Human Rights Office on Human Rights Violations Perpetrated by Soldiers of the Congolese Armed Forces and Combatants of the M23 in Goma and Sake, North Kivu Province, and In and Around Minova, South Kivu Province, From 15 November to 2 December 2012,” May 2013, p. 4,  http://www.ohchr.org/Documents/Countries/CD/UNJHROMay2013_en.pdf (accessed July 8, 2015).

[xlii] “DR Congo: War Crimes by M23, Congolese Army,” Human Rights Watch news release, February 5, 2013, https://www.hrw.org/news/2013/02/05/dr-congo-war-crimes-m23-congolese-army; “Revealed: how the world turned its back on rape victims of Congo,” The Guardian, undated, http://www.theguardian.com/world/2015/jun/13/rape-victims-congo-world-turned-away (accessed July 8, 2015).

[xliii] United Nations General Assembly, “Fifty-ninth session, Agenda item 77, Comprehensive review of the whole question of peacekeeping operations in all their aspects,” March 24, 2005 http://www.un.org/en/ga/search/view_doc.asp?symbol=A/59/710 (accessed July 8, 2015); United Nations Secretariat, Secretary-General’s Bulletin, “Special measures for protection from sexual exploitation and sexual abuse,” October 9, 2003, https://cdu.unlb.org/Portals/0/PdfFiles/PolicyDocC.pdf (accessed July 8, 2015); Office of Internal Oversight Services (OIOS), “Evaluation Report: Evaluation of the Enforcement and Remedial Assistance Efforts for Sexual Exploitation and Abuse by the United Nations and Related Personnel in Peacekeeping Operations,” May 2015, https://oios.un.org/page?slug=evaluation-report (accessed July 23, 2015).

[xliv] Somini Sengupta, “Allegations Against French Peacekeepers Highlight Obstacles in Addressing Abuse,” New York Times, May 25, 2015, (accessed July 8, 2015), http://www.nytimes.com/2015/05/26/world/europe/allegations-against-french-peacekeepers-highlight-obstacles-in-addressing-abuse.html.

[xlv] The obligation of states to prosecute grave breaches of international humanitarian law is outlined in each of the Geneva Conventions.

[xlvi] ICRC, Customary International Humanitarian Law, pp. 591-93, 607-10.

[xlvii] Rome Statute of the International Criminal Court (Rome Statute), U.N. Doc. A/CONF.183/9, July 17, 1998, entered into force July 1, 2002. The Rome Statute is the treaty creating the ICC. Command responsibility is an established principle of customary international humanitarian law and has been incorporated into the Rome Statute.

[xlviii] Rome Statute, art. 28.

[xlix] See UN Human Rights Committee, General Comment 31, Nature of the General Legal Obligation on States Parties to the Covenant, U.N. Doc. CCPR/C/21/Rev.1/Add.13 (2004) , para. 15. See also, Updated Set of Principles for the Protection and Promotion of Human Rights through Action to Combat Impunity (“Impunity Principles”), U.N. Doc. E/CN.4/2005/102/Add.1, February 8, 2005, adopted by the UN Commission on Human Rights in Resolution E/CN.4/2005/81, April 15, 2005, principle I; Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, adopted December 16, 2005, G.A. res. 60/147, U.N. Doc. A/RES/60/147 (2005), principle 11.

[l] UN Human Rights Committee, General Comment 31, para. 16.

[li] UN Declaration on the Elimination of Violence Against Women, December 20, 1993, G.A. res. 48/104, 48 U.N. GAOR Supp. (No. 49) at 217, U.N. Doc. A/48/49 (1993).

[lii] International Criminal Court, Office of the Prosecutor, Policy Paper on Sexual and Gender-Based Crimes, June 2014, http://www.icc-cpi.int/iccdocs/otp/OTP-Policy-Paper-on-Sexual-and-Gender-Based-Crimes--June-2014.pdf (accessed July 8, 2015).

Posted: January 1, 1970, 12:00 am

Liesl Gerntholtz is the executive director of the women's rights division. She is an expert on women's rights in Africa and has worked and written extensively on violence against women and HIV/AIDS in Southern Africa. Her work at Human Rights Watch has included documenting access to safe and legal abortion in Ireland and sexual and gender-based violence in Haiti in the aftermath of the earthquake.

Before joining Human Rights Watch, Liesl worked for some of the key constitutional institutions promoting human rights and democracy in a post-apartheid South Africa, including the South African Human Rights Commission and the Commission on Gender Equality.  A lawyer by training, she was involved in high-profile, strategic human rights litigation to promote women and children's rights, including a case that changed the definition of rape in South Africa.

NPR Interview - Women's Rights In The Age Of The Arab Spring

Posted: January 1, 1970, 12:00 am

Indonesia said it will stop administering “virginity tests” to female aspiring civil servants as part of its admission process. The country’s Home Affairs Minister Tjahjo Kumolo announced this change—which will affect women working in government offices—on the heels of Human Rights Watch research that documented this degrading practice in the admission process for another branch of the Indonesian government, the National Police force.

Human Rights Watch found that the testing included the invasive “two-finger test” to determine whether female applicants’ hymens are intact. Minister Kumolo said that it was “illogical” to recruit a student based on her virginity and noted that a woman’s hymen could be torn due to sports, exercise, or other accidents. 

Rumors about these tests have circulated for decades, but Human Rights Watch brought the issue into the national spotlight by gathering concrete testimony from eight  current and former police women and applicants as well as police doctors, a police recruitment evaluator, a National Police Commission member, and several prominent women’s rights activists. The women we interviewed described the examination as frightening, humiliating, and extremely painful.  

Virginity tests are a form of gender-based violence, cannot be administered to men, and are inherently degrading and discriminatory. Moreover, these tests have been widely discredited by the scientific community and the World Health Organization. For years, Human Rights Watch has been pushing for an end to this practice and documenting cases of abusive testing in Indonesia and several other countries including Egypt, India, and Afghanistan

Ending virginity tests for Institute of Public Administration applicants is an important step forward, but much remains to be done.  Recently, the municipal government of Indonesia’s city of Jember in east Java proposed forcing female high school students to pass a virginity test before they could receive their diploma. This time, however, officials quickly back-pedaled from the proposal.

Indonesia’s National Police and the Indonesian Armed Forces have yet to follow the Institute of Public Administration’s lead. Despite Human Rights Watch’s findings, police officials continue to deny administering virginity tests, claiming that the female recruits are simply undergoing a required “medical examination.” Human Rights Watch’s research has also revealed that the military—the air force, the army, and the navy—has for decades also extended the “virginity test” requirement to female recruits as well as the fiancées of military officers prior to marriage.

Indonesia's police and military need to abolish virginity testing and make sure their recruiting stations across the country stop using it as well.

 

Author: Human Rights Watch
Posted: January 1, 1970, 12:00 am

Activists demonstrate in Sao Paulo, Brazil, on July 19, 2018 in favor of abortion legalization.

© 2018 Fabio Vieira/FotoRua/NurPhoto via Getty Images

Activists around the world will mark the Global Day of Action for Access to Safe and Legal Abortion on September 28. Like several other countries in Latin America and the Caribbean, Brazil is in the midst of a vigorous public debate around abortion following a recent Supreme Court hearing on the issue. Brazil’s criminal code still severely restricts access to legal abortion. But the fact that the issue is being discussed openly, including in the presidential campaign, and that women are coming forward to share their stories of ending a pregnancy, is already a significant step forward.

Under the criminal code in Brazil, abortion is illegal except in cases of rape, when necessary to save a woman’s life, or when the fetus suffers from anencephaly – a fatal congenital brain disorder. Activists have fought for years to ease the country’s abortion restrictions, citing evidence that criminal penalties do nothing to reduce abortion, but instead lead women to risk their health and lives to terminate pregnancies clandestinely.

A case before the Supreme Court could dramatically expand access to safe abortion in Brazil. In March 2017, the Socialism and Freedom Party (Partido Socialismo e Liberdade, PSOL) with support from the nongovernmental group Anis – Institute of Bioethics, filed a petition with the court challenging criminalization of abortion in Brazil in the first 12 weeks of pregnancy.

In August, experts from around the world testified before the court in Brasília, arguing that decriminalizing abortion was a public health and human rights imperative. The hearing was televised, and activists worldwide showed their solidarity with Brazilian women and girls, posting to Twitter and Facebook with the hashtag #NemPresaNemMorta, roughly “Not in prison, not dead.”

A leading reproductive rights activist and law professor, Debora Diniz, faced death threats in the lead-up to the hearing and had to enter police protection. Still, she testified on the first day of the hearing, refusing to be silenced. A Lutheran pastor, Lusmarina Campos Garcia, also received death threats after she spoke at the hearing in favor of reproductive rights. Dozens of religious leaders expressed support for her in an open letter.

Laws that criminalize abortion create a climate of fear and stigma, forcing women and girls with unplanned or unwanted pregnancies to consider their options in isolation, often without support or reliable information from health professionals. But women and girls in Brazil are fighting against this stigma and sharing stories of their experiences with abortion.

One of those women is Rebeca Mendes, who bravely petitioned the Supreme Court for permission to have a safe abortion last year after she became pregnant when her contraceptive method failed. The court dismissed her petition, but she had an abortion abroad. She attended the public hearing last month, and told my colleague: “All the deaths and the problems that occur as a result of illegal abortions are the state’s responsibility. I am very happy that today we can discuss the issue with the people who have the power to make a change.”

Research shows that one in five women has had an abortion by age 40. “Everybody knows a woman who has had an abortion,” Mendes said. “After talking to some friends, I know they all have a story. It may not be their own, it may be a cousin’s or a sister’s, but they all have a story to tell. I’d like our politicians to stop pretending these women do not exist.”

“Rebeca Mendes is part of a process that is occurring rapidly in Brazil, where more women are saying, ‘The criminalization of abortion is wrong,’” Diniz said in a Human Rights Watch video issued ahead of the hearing. Nearly two dozen other women have shared their abortion stories as part of a campaign led by Anis and Think Olga.

“If you think back 20 years ago, 30 years ago, abortion was taboo,” said Maria José Rosado, from the group Catholics for Choice. “I think this taboo is gone.”

The Supreme Court is not likely to move forward on the case until after the presidential elections, or possibly later. A ruling to decriminalize abortion in the first 12 weeks would make history, giving women and girls the right to safely and legally end pregnancies rather than turning to clandestine, and unsafe, methods.

But in the meantime, the issue of abortion is being debated publicly and discussed openly.

Thanks to the courageous members of the movement for abortion rights in Brazil, presidential candidates have to answer questions about reproductive rights. That's good for women and girls, and good for Brazil.

Author: Human Rights Watch
Posted: January 1, 1970, 12:00 am

 Canadian Foreign Minister Chrystia Freeland meets High Representative of the European Union (EU) for Foreign Affairs and Security Policy and Vice-President of the European Council Federica Mogherini during the EU-Canada joint ministerial committee meeting at the European Council in Brussels, Belgium, November, 2017.

© 2017 Dursun Aydemir/Anadolu Agency/Getty Images

In a first-of-its-kind summit, the world’s female foreign ministers will meet in Montreal today and tomorrow to discuss a range of global challenges, from advancing peace and security to eliminating violence against women and girls in conflict and post-conflict settings.

The meeting, jointly hosted by Canada’s foreign affairs minister, Chrystia Freeland, and her European Union counterpart, Federica Mogherini, comes at a critical time globally. Despite great strides in human rights protections, women and girls remain targets of egregious rights violations for which those responsible are rarely held to account.

Sexual violence against women and girls as war crimes and crimes against humanity remains pervasive. In Myanmar in late 2017, security forces raped and sexually assaulted thousands of Rohingya women and girls. Nearly every sexual assault described to Human Rights Watch by survivors involved a gang rape. But for the International Criminal Court (ICC) to prosecute sexual and gender-based crimes, as well as the full range of grave crimes committed in Myanmar, the United Nations Security Council needs to refer the situation in Myanmar to the ICC.  The foreign ministers at the summit should call on the council to do just that.

Rohingya refugees line up at an aid relief distribution center at the Balukhali refugee camp near Cox’s Bazar, Bangladesh, August 12, 2018.

© 2018 Ed Jones/AFP/Getty Images

While the ICC’s current prosecutor, Fatou Bensouda, has made prosecuting sexual and gender-based crimes a priority, progress so far has been limited. The summit provides a crucial opportunity for foreign ministers to boldly reaffirm their government’s commitment to justice and accountability for these grave crimes.

The foreign ministers should call for greater support to the ICC and other accountability mechanisms. Holding abusers to account for their crimes will deter further atrocities, help create the conditions for durable peace, and ultimately advance the lives of women and girls around the world.

Throughout history, women have often been excluded from conflict prevention and resolution efforts, even though the participation of women can lead to a more stable peace. This group of women foreign ministers have a platform and opportunity in Montreal today to rewrite this narrative.

Author: Human Rights Watch
Posted: January 1, 1970, 12:00 am

Ren Liping, a graduate student, has spent the past year filing lawsuits and attempting to protest authorities in the coastal city of Qingdao for what she says was their mishandling of her rape allegation.

© 2018 Andy Wong/ AP
 
Chinese women have been fighting for equality for a long time. In October 1911, a group of revolutionaries in southern China overthrew the Qing Dynasty, ending the imperial system and founding the Republic of China. Among the revolutionaries was a group of women’s rights activists. But when the Provisional Constitution was passed in March 1912, there was no mention of sex or gender. It said, “citizens of the Republic of China shall be equal before the law, without distinction of race, class or religion.”
 
“During the armed uprisings women . . . risked both their lives and their properties . . . just like the men. How is it that now the revolution has been achieved but women’s interests are not taken into account?” a feminist cried upon learning women would not be granted equal voting rights when the new electoral laws were announced in December 1912.
 
Today’s feminists in China know from long experience to be wary of men’s claims that they support equal rights, whether they are government officials or liberal intellectuals and activists.
 
The #MeToo movement in China has sent shock waves through progressive circles as some of the men accused of sexual assault and harassment are prominent intellectuals and activists who have long advocated for equal rights. High-profile men accused of abusive behavior include anti-discrimination activist Lei Chuang, environmentalist Feng Yongfeng and journalist Xiong Peiyun. Lei and Feng admitted to the accusations, while Xiong denied them.
 
Zhang Wen, a well-known journalist accused of rape and harassment by several women, attacked his accusers for “being divorced” and “having had many boyfriends.” He also threatened to sue those who made allegations against him.
 
Like much of Chinese society, some male intellectuals and activists habitually call their female colleagues “beauties” or “goddesses” and post photos of scantily clad young women on social media. In campaigns to raise money for families of detained activists, organizer Rou Tangseng used photos of women’s bare legs to attract donations.  I was once called “goddess” by a male activist when I criticized the Chinese government’s detention of political dissidents — but the same person called me “an ugly woman no man wants” when I raised the issue of gender discrimination in Chinese society.
 
Now something new is emerging from #MeToo: Some liberal intellectual men who in the past have not paid much attention to women’s rights issues have called for self-reflection and support of women’s rights.
 
“I have had many moments of drunk and indecent behavior,” wrote the political commentator Mo Zhixu. “If I am exposed, I would understand, this is not only about some moral image issues. My past behavior, in fact, is a great mockery of my pursuit of rights, freedom, equality and democracy. If I cannot face this with honesty, it would only render my pursuit a joke.”
 
Writer Zhao Chu explains that as a person who deeply cares about rights, he must support the #MeToo movement: “Even if . . . [it] means I, as a man, must change my behavior and way of thinking, even if this kind of change is very difficult.”
 
Feminist writer Li Sipan exclaimed that “a miracle has happened” when she saw on social media many pro-feminism messages posted by those she thought were her “ordinary straight male” friends.
 
This change has been driven by the many Chinese women online – often young and educated –  who bravely speak up, telling their stories, articulating feminist ideas and vigorously debating well-known male intellectuals, all amid pervasive government censorship.
 
Don’t expect a similar awakening any time soon among the political elite. After President Xi Jinping formally assumed power in 2013, the government tightened its grip on civil society, including feminists. In March 2015, authorities detained five women’s rights activists for a month after they planned to distribute stickers with anti-sexual harassment messages on public buses. This March, Chinese social media platforms Weibo and WeChat permanently suspended the accounts of Feminist Voices, a women’s rights publication.
 
In June, Ren Liping, a student at China University of Petroleum, was held for six days in a hotel room by university authorities after she protested against the university and the police for mishandling her allegations of sexual abuse. Ren had accused an ex-boyfriend of raping her on campus.
 
“The younger generation of women’s rights activists . . . has a stronger sense of independent personhood,” said the feminist and literary professor Ai Xiaoming. “Such independent personhood has instilled . . . vigor to the current women’s rights movement in China.”
 
While the space for civil society activism of any kind is narrowing in China today, feminists have courageously and creatively followed the path of their feminist forbears from over 100 years ago. Their twin targets of an authoritarian state and patriarchal society ignore them at their peril.
Author: Human Rights Watch
Posted: January 1, 1970, 12:00 am

Women and children enjoy the waterfront along the Persian Gulf in Doha, Qatar, October 24, 2011. 

© 2011 Sean Gallup/Getty Images

The Emir of Qatar recently signed a flurry of laws, including one allowing children and spouses of Qatari women married to non-Qataris to acquire permanent residence status.

While a step forward, the law falls short because it doesn’t allow the children and spouses of Qatari women to obtain citizenship – and therefore access to a Qatari passport – on the same basis that children and spouses of Qatari men can.

While the discriminatory laws have long plagued women and their families, after the Gulf crisis erupted in June 2017 – when Saudi Arabia, the United Arab Emirates, Bahrain, and Egypt cut off relations with Qatar, expelled Qatari citizens and demanded their own citizens return – Qatari women and their mixed Gulf families suffered acutely. The political rift tore apart entire families stretched across the four Gulf countries. Qatari women found that their children and spouses, who did not have Qatari citizenship, were required to return by their national governments, while other Qatari women were forced to return and brought their non-citizen children with them.

Under the new law up to 100 people per year can be granted the status of permanent residents for the first time in Qatar. Permanent residents may travel to and from the country freely, receive government health and educational services, invest in the economy, and own real estate.

But, it doesn’t meet Qatar’s obligations under international human rights law because it still deprives the children and spouses of Qatari women of their right to obtain citizenship on an equal basis with the children and spouses of Qatari men.

Unlike the children of Qatari men and foreign women, who automatically obtain citizenship, children of Qatari mothers and foreign fathers can only apply for citizenship if they meet a set of strict conditions. Even then, people who meet the strict criteria face difficulty. A 36-year-old man who applied for citizenship told us in June 2017: “My mother is Qatari, my father is Bahraini. I am Bahraini. I was born here [in Qatar], studied here, and work here.” At the time, he had not received a response to his application after six years.

Qatar has missed an opportunity to become the first Gulf Cooperation Council country to recognize that Qatari women, their foreign spouses, and children have a right to be treated equally under citizenship laws. Qatar should build on its latest legislation and end discrimination in citizenship laws permanently.

Author: Human Rights Watch
Posted: January 1, 1970, 12:00 am

Tell Car Companies To Do The Right Thing

 

When the Saudi government agreed to let women drive, major car companies publicly and rightly hailed that development. It was a step towards equality for women in the Kingdom and created a lucrative new market for the industry. Now, the courageous women that fought for their right to drive are being arrested, jailed, and harassed. It is a cruel irony that the women who fought for equality are in jail while the companies stand to make millions from the market those women have helped create. They should tell the government to stop going after these activists.

On May 15, just weeks before they lifted the decades-long driving ban on June 24, Saudi authorities launched a large scale coordinated crackdown against the women’s rights movement. They have since arrested at least 13 prominent women’s rights activists and accused several of them of grave crimes which appear to be directly related to their activism. At least nine women continue to be detained without charge, some of whom are awaiting a trial that could have them facing up to 20 years in prison. This is the most serious attack on women’s rights activism.

While Saudi Arabian authorities think they can get away with detaining women’s rights defenders while touting a new era of reform for women, they do care about what businesses and foreign investors think of them including car companies seeking to benefit from the new market. The car companies have so far stayed silent about the arrests of activists, whose years of campaigning they are now benefitting from.

Help free the real champions behind the lifting of the driving ban. Call on car companies to support the release of the detained Saudi women activists. By taking action you will be sending an email to the following car companies: Volkswagen, Ford, Hyundai, Audi, Jaguar Land Rover, Renault, Nissan & General Motors.

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Videos and Graphics

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Car Brands Should Stand With Saudi Activists

When the Saudi government agreed to let women drive, major car companies publicly and rightly hailed that development. It was a step towards equality for women in the Kingdom and created a lucrative new market for the industry. Now, the courageous women that fought for their right to drive are being arrested, jailed, and harassed. It is a cruel irony that the women who fought for equality are in jail while the companies stand to make millions from the market those women have helped create. They should tell the government to stop going after these activists.

Posted: January 1, 1970, 12:00 am

The Thai national flag flies against a stormy sky in Lampang, Thailand, July 14, 2017. 

© 2017 Yvan Cohen/LightRocket via Getty Images
(New York) – Thai authorities are wrongfully prosecuting online news outlets and social media users for reporting an alleged rape case at a popular tourist island in Thailand, Human Rights Watch said today.

On September 4 and 5, 2018, police arrested 12 Facebook users from across Thailand under the draconian Computer-Related Crime Act for sharing information about an alleged rape of a 19-year-old British tourist in June 2018 on Koh Tao island. Arrest warrants were also issued against Suzanne Emery, British publisher of the online newspaper Samui Times, and Pramuk Anantasin, Thai-American administrator of the CSI LA Facebook page, for reporting the story and raising concerns about the quality of the police work.

“The Thai police appear to be using computer-related crime charges against anyone who questions their shoddy investigation of the Koh Tao island rape case,” said Brad Adams, Asia director at Human Rights Watch. “The authorities should immediately drop these bogus charges.”

According to information provided by the police, investigating officers, in this case, have never interviewed the victim or conducted a forensic examination of evidence. Yet the police announced that no rape happened. 

The police accused the 14 people charged with publishing false information online and misleading the public. Maj. Gen. Surachet Hakpal, deputy commissioner of the Tourist Police, said this tarnished Thailand’s reputation as a tourism destination and undermined the police’s credibility. The offense under the Computer-Related Crimes Act carries a maximum sentence of five years in prison and a fine of 100,000 Thai baht (US$3,100).

In March 2017, the Thai government told the United Nations Human Rights Committee during the review of the country’s obligations under the International Covenant on Civil and Political Rights (ICCPR) that it respects media freedom and freedom of expression. However, since the military coup of May 2014, the Thai government’s record on these issues has been poor, as the authorities have repeatedly harassed and persecuted people for their speech, writings, and internet postings critical of government agencies and officials. Government agencies, including the police, have frequently accused critics of making false statements with the intent of damaging their reputation.

“The Thai police should recognize that their reputation is better served by solving crimes than prosecuting their critics,” Adams said. “The government should reform the Computer-Related Crimes Act so it can no longer be misused for stifling critical online media and retaliating against critics.”  

Posted: January 1, 1970, 12:00 am

The Union Flag flies near the Houses of Parliament in London, Britain, June 7, 2017.

© 2017 Reuters

This week Pauline Latham, a Conservative MP, introduced a bill to ban marriage before the age of 18 in England and Wales. She has support from across the political spectrum for an effort that is long overdue. In England, Wales, and Northern Ireland, children aged 16 and 17 can marry with their parents’ permission. In Scotland, the minimum age of marriage is 16, with no parental permission required.

In allowing some children to marry the UK is out of step with the international standards it claims to support. The UN Committee on the Rights of the Child supports a global minimum of 18 years for marriage, without exceptions, and recommended in 2016 that the UK raises the minimum marriage age to 18, including in its overseas territories.

Video

Ending Child Marriage

What does child marriage mean for girls’ lives? And why does child marriage persist?

Why? Because child marriage is deeply harmful: its deprives girls of education, exposes them and their babies to serious health risks from early pregnancy, sinks their families deeper into poverty, and raises the risk that they will face domestic violence. Under the UN Sustainable Development Goals (SDGs), countries around the world, including the UK, pledged to end all marriage before 18 by 2030. They have their work cut out: around the world today, a girl under 18 marries every two seconds.

In 2014, the UK government hosted the high-profile Girl Summit, designed to boost – and pledging UK leadership for – global efforts to end child marriage and female genital mutilation. But in the years since, the UK government not only failed to ban child marriage at home – it actually blocked an earlier effort to do so.

Hypocrisy has consequences. In 2017 Bangladesh re-legalized child marriage, and government officials there repeatedly cited the fact that child marriage is legal in the UK as justification. Other countries failing to enforce bans on child marriage have also cited the UK law to defend themselves. When key donors like the UK ignore their own problem at home, the SDG goal seems impossible.

Latham’s is a Private Members Bill, meaning it stands little chance of passing unless the government adopts it. The government should do so, and the authorities in Scotland and Northern Ireland should pass similar legislation. It’s time for Theresa May and her government to recognize that girls around the world need the UK to practice what it preaches.

Author: Human Rights Watch
Posted: January 1, 1970, 12:00 am

Tunisian president Beji Caid Essebsi, Islamist Ennahdha Party leader Rached Ghannouchi, and Ennahdha Party vice-president Abdelfattah Mourou wave to the crowd on May 20, 2016 at the opening of Ennahdha's three-day congress in Tunis. 

© 2016 Fethi Belaid/AFP/Getty Images

(Tunis) - The official rejection on August 26, 2018 by Ennahda, one of Tunisia’s main political parties, of a presidential initiative to establish full equality between men and women in inheritance is a blow to women’s rights in the country, Human Rights Watch said today.

President Beji Caid Essebsi pledged on August 13 to introduce a bill to ensure gender equality in inheritance. The proposal was to amend the Personal Status Code, which treats men and women unequally, inspired by Sharia rules. Under the current code, in some cases, a man receives double a woman’s share of an inheritance.

“Ennahda’s announcement betrays Tunisia’s women and is a missed opportunity to reestablish itself as an Islamist party that respects women’s rights,” said Amna Guellali, Tunisia director at Human Rights Watch. “Ennahda’s refusal to abolish one of the country’s last vestiges of inequality stands in the way of Tunisia’s leadership in the Arab and Muslim world.”

Ennahda, which identifies itself as “Muslim democratic,” has 68 members in the country’s 217-member legislative assembly, and is a member of the coalition government. It announced on August 26 that it would reject the presidential proposal, contending that it contradicts Islamic law.

The president’s proposal seeks to ensure full legal equality between men and women in inheritance. Mindful of the controversial nature of this proposal, the president’s proposal allowed people to opt out of the equality rule by formally expressing such a wish in their will before a notary.

The president’s initiative backs a similar proposal by the Commission on Individual Freedoms and Equality, which he established in August 2017. The commission’s June 12 report also included recommendations to decriminalize sodomy, eliminate “morality” laws, and abolish the death penalty. The report caused outrage among some groups. Thousands of people took to the streets to denounce the recommendations, saying that they threatened Islamic values.

Following the report’s release, Ennahda issued ambiguous statements. It said in a June 14 statement that the report was a “starting point for societal dialogue, in line with the [Ennahda] Movement's steadfast positions in defending public and private freedoms, defending women's rights, and ensuring equality of rights and duties between women and men.”

However, the August 26 statement from Ennahda’s Shura Council, the party’s main governing institution, clearly rejected the commission’s recommendations and the president’s proposal. “The council reaffirms its position that not only does the initiative calling for equality in inheritance contradict the religious teachings and the texts of the constitution and the personal status code, but also invokes fear related to the stability of the Tunisian family and the customs of society,” the statement said.

The chairman of Ennahda's Shura Council, Abdel Karim al-Harouni, said his party would “oppose any law that goes against the Quran and the Constitution”.

As a leading party in the Constituent Assembly, Ennahda participated actively in drafting the constitution and voted in favor of article 21, which provides that “All citizens, male and female, have equal rights and duties, and are equal before the law without any discrimination.” It also backed article 46, which requires the state to “commit to protect women’s established rights and works to strengthen and develop those rights.” Ennahda has also backed other positive initiatives on women’s rights, among them a law to end violence against women and girls, which passed in July 2017.

As a state party to the Convention of the Elimination of all forms of Discrimination against Women (CEDAW), Tunisia has an obligation to eliminate gender-based discrimination.

“It’s time for the progressives of Ennahda to speak up and demand an end to their leadership’s outdated insistence on discrimination against women,” Guellali said. “Those who believe that they can comply by Sharia only by discriminating against the women in their family can choose to do that, but Ennahda should not impose discriminatory inheritance rules on all Tunisians.”

Posted: January 1, 1970, 12:00 am
Video

Mauritania: Rape Survivors at Risk

The criminalization of sexual relations outside marriage in Mauritania puts rape survivors at risk. The law deters them from filing complaints because they could themselves face prosecution.

(Nouakchott) – The criminalization of sexual relations outside marriage in Mauritania puts rape survivors at risk, Human Rights Watch said in a report released today. The law deters them from filing complaints because they could themselves face prosecution.

The 90-page report, “‘They Told Me to Keep Quiet’: Obstacles to Justice and Remedy for Sexual Assault Survivors in Mauritania,” found that when survivors do come forward, police and judicial investigators do not respect their rights and dignity. Human Rights Watch found that investigative procedures do not ensure privacy or confidentiality, rarely offer the possibility to interact with female officials, and can turn into an investigation of the rape survivor’s moral character. Many survivors have limited access, if any, to legal aid, or medical, mental health, and social support.

“Women and girls should not run the risk of jail or further stigma for reporting sexual abuse,” said Sarah Leah Whitson, Middle East and North Africa director of Human Rights Watch. “To combat sexual violence, Mauritania should require law enforcement and public health systems to stop treating victims as suspects, support them in seeking justice and recovery, and prosecute the perpetrators.”

 

Human Rights Watch interviewed 33 girls and women who reported being raped, as well as members of nongovernmental groups, lawyers, and government officials. On July 12, Human Rights Watch sent a letter, with preliminary findings and requests for information to several ministries and bodies of the Mauritanian government. The Commission on Human Rights and Humanitarian Action coordinated a joint, detailed government response received on August 31, after the report finalization, available here.


Human Rights Watch found that survivors face social stigma and family pressures not to report rape to the authorities. The social worker with a local women’s rights group who supported a woman who reported being raped by a neighbor who threatened to kill her, described the demeanor of the state prosecutor who questioned the woman. “He asked her: ‘If you didn’t consent, why didn’t you tell your parents?’” she said. When the survivor said she knew the man who raped her, the prosecutor responded: “All the things you are saying are lies, you did this willingly.”

The prosecutor opened an investigation against the woman for sexual relations outside marriage, known as zina, and a judge placed her under judicial control during the two-month investigation.

A lack of forensic expertise and protocols for evidence collection by law enforcement and health professionals can weaken a survivor’s case in court, Human Rights Watch found. Most public hospitals offer limited emergency care, and often refuse to provide medical examinations of rape survivors without a police referral. Many survivors cannot afford emergency or long-term medical care. Rape survivors who become pregnant are not allowed to obtain an abortion, as Mauritanian law prohibits abortions except when the mother’s health is at risk.

Video

Aminetou: Activist

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Mauritania also lacks government-funded programs and facilities to ensure and support survivors’ safety, legal action, and recovery. The government operates no shelters for survivors who want, or are forced, to leave their home after an assault, or for women leaving prison after a zina conviction who have nowhere to turn. Nongovernmental groups are only able to provide limited short-term services to survivors, but this never includes the possibility of accommodation.

Survivors also risk prosecution if they cannot prove lack of consent, in part because the penal code currently does not define rape or the notion of consent and fails to criminalize other forms of sexual assault. The penal code punishes zina with flogging, jail time and, if the defendant is married or divorced, death by stoning. Because Mauritania does not carry out corporal punishments, people sentenced to flogging or death by stoning can find themselves imprisoned indefinitely, until Muslim legal scholars rule on commuting their sentence.

Support center for women and girl survivors of gender-based violence run by the Association of Women Heads of Family, Nouakchott, Mauritania, January 29, 2018. 

© 2018 Candy Ofime/Human Rights Watch

Though the government contends that no rape cases reported to the authorities have led to zina prosecutions in the last few years, women and girls interviewed said otherwise. In a July 2016 case, a 15-year-old who was repeatedly gang-raped by four men and held captive for two weeks said she was sent to prison after she revealed that she knew one of the men, who had promised to marry her and help her flee her abusive home.

Mauritania has recently moved to strengthen laws to protect the rights of women and girls. In March 2016, the government approved a draft law on gender-based violence that is pending before parliament. The law would define and punish rape and sexual harassment, create special criminal court chambers to hear sexual violence cases, and allow nongovernmental groups to bring cases on behalf of survivors. While a step in the right direction, the current draft falls short in several respects, including maintaining criminal charges for consensual sexual relations outside marriage and restrictions on abortion.

The government’s policies violate several human rights enshrined in international treaties that Mauritania has signed. These include survivors’ right to nondiscrimination – as sexual violence affects women and girls disproportionately – as well as their right to bodily integrity and autonomy, their right to privacy, and their right to an effective remedy. Further, children should be detained only as a last resort and for the shortest appropriate period of time, and the government should prioritize their best interests.

To combat sexual violence, Mauritania should require law enforcement and public health systems to stop treating victims as suspects, support them in seeking justice and recovery, and prosecute the perpetrators

Sarah Leah Whitson

Middle East and North Africa director at Human Rights Watch

The government should stop prosecuting and detaining people for zina, decriminalize the offense, and release anyone being held under those charges, Human Rights Watch said. The government should also pass a law that defines the offense of rape, criminalizes all other forms of sexual violence, creates specialized prosecutorial units and short-term and long-term shelters, and allocates funding to carry out the reforms.

The government should also provide training on intake procedures, avoiding gender bias and forensic evidence procedures and require law enforcement and health professionals to be trained periodically. And it should ensure access to adequate physical and mental health care for survivors.

“This draft law on gender-based violence is an opportunity for Mauritania to turn the tide and align its law with fundamental rights for women and girls,” Whitson said.

Posted: January 1, 1970, 12:00 am

 

Summary

In July 2016, 15-year old “Rouhiya” fled her sexually abusive father and sought refuge at the house of a 23-year-old man who had promised to marry her.[1] Soon after, she said, the man locked her up, drugged her, and gang-raped her with three other men. Rouhiya remained captive for two weeks until the police found her and returned her to the home from which she had tried to escape. In her report to the police, Rouhiya disclosed that she knew one of the perpetrators. Police arrested her and sent her to the national women’s prison on charges of engaging in sexual relations outside marriage (zina). “I asked them, ‘Why? What did I do?’,” Rouhiya said. “They told me to keep quiet and not to ask questions.”

Few survivors of sexual assault dare to speak out in Mauritania. Those, like Rouhiya, who report it to the authorities must navigate a dysfunctional system that discourages victims from pressing charges, can lead to re-traumatization or punishment, and provides inadequate victim-support services.

Video

Mauritania: Rape Survivors at Risk

The criminalization of sexual relations outside marriage in Mauritania puts rape survivors at risk. The law deters them from filing complaints because they could themselves face prosecution.

This report documents the institutional, legal, and social obstacles that survivors face in reporting incidents of sexual assault to the police, seeing perpetrators brought to justice, and obtaining medical and psycho-social support. Human Rights Watch interviewed 12 girls and 21  who described one or more incidents of sexual assault. Researchers also visited the national women’s prison and interviewed three women who were detained on charges of zina, two of whom said they were victims of sexual violence.

Social pressure and stigma, both in the home and community, can be major obstacles to overcome for survivors of sexual violence. Mariama reported being raped by a taxi driver when she was 20 and too worried to tell her parents about the assault: “When I was eight months pregnant, my mother realized it, and asked me how it happened. That’s when I told her about the rape,” said Mariama. “My father got very angry. He took me to the police station and told policemen that his daughter should be locked up because she had slept with a man, that he didn’t want her anymore in his house.”

Despite the 2017 adoption of a new law on reproductive health and of a General Code on Children’s Protection, Mauritanian law does not adequately define and criminalize sexual violence. The lack of a definition of rape and other forms of sexual assault in domestic law and the criminalization of consensual sexual relations heightens the risk for survivors that they themselves may be prosecuted: if women and girls cannot convince judicial authorities that a sexual act was nonconsensual, they can find themselves transformed from accuser into accused.

Mauritania also lacks state-funded programs and care facilities to ensure and support survivors’ safety, legal action, and recovery. The government has not created or funded shelters offering accommodation options to survivors who want, or are forced, to leave their home after an assault, or for women leaving prison who have nowhere to turn after being convicted of zina.

In addition to societal pressure to remain silent about sexual assault, survivors confront institutional barriers that include police and judicial investigative procedures that are not gender-responsive, do not ensure privacy or confidentiality, and can turn into a probe of the moral character of the complainant. Zahra, a woman in her twenties, reported being raped by a neighbor who lived in the same informal settlement as her family and who threatened to kill her. The social worker who supported her throughout the course of legal action recalled the demeanor of the state prosecutor who met with Zahra after the assault: “He asked her: ‘If you didn’t consent, why didn’t you tell your parents? Did you know him?’,” she said. “When Zahra opened up, he responded: ‘That’s not true. All the things you are saying are lies, you did this willingly.’”

Lack of forensic expertise and of standardized evidence collection protocols for both law enforcement and health professionals can weaken a survivor’s case in court. Most public hospitals and health centers offer limited emergency care and often refuse medical examinations of survivors without a police referral. Some health professionals seem reluctant to examine survivors, fearing retaliation by alleged perpetrators if their medical assessment leads to prosecution or conviction. Follow-up medical consultations are rare because many survivors cannot afford emergency or long-term medical care. Some families cannot even afford the cost of transportation to medical facilities. Abortion is criminalized and legal only when the woman’s life is at risk.

Survivors of sexual assault who wish to press charges also risk being prosecuted for zina, which not only punishes victims but also deters them from reporting sexual assault to the police in the first place. A person charged with zina can be placed in pre-trial detention and, if convicted and sentenced to flogging or death by stoning, face indefinite prison time because Mauritania has observed a moratorium on executions and corporal punishments provided by Islamic law since the 1980s. While under Mauritanian law, zina charges only apply to “adult Muslims,” some prosecutors also prosecute girls for zina, especially if they are pregnant, even when they report their pregnancy was due to rape. Girls can end up in pre-trial detention or serve jail time in the same facilities as women detainees, a violation of the principle of separation guaranteed under international law.

In addition to breaching the right to privacy, zina charges are applied in a way that discriminates on the basis of sex because pregnancy serves as “evidence” of the offense, even when women and girls may report it was the result of rape. Mauritanian lawyer Aichetou Salma El Moustapha, who represents women and girls supported by the Mauritanian Association for the Health of the Mother and the Child, told Human Rights Watch: “For rape cases where the complainant is a minor, when the girl becomes pregnant, she’s convicted for zina because according to the judge’s reasoning, if a girl becomes pregnant, her body is mature—she can conceive a child and is thus, legally speaking, an adult.”

Mauritania has in recent years moved towards improving the legal landscape for women, girls, and survivors of sexual violence. In March 2016, the government approved a draft law on gender-based violence—still pending before parliament—that would define and punish rape and sexual harassment, create specific sections in criminal courts of first degree to hear sexual violence cases, consolidate criminal and civil court proceedings to favor prompt compensation of survivors, and allow civil society organizations to bring cases on behalf of survivors.

However, while a step in the right direction, the current draft falls short of international standards in several ways: it includes a restrictive definition of rape; fails to criminalize other forms of sexual assault; includes an explicit provision that criminalizes consensual sexual relations outside marriage; and fails to repeal domestic law provisions criminalizing abortion.

International human rights law obligates Mauritania to protect individuals within its jurisdiction from all forms of violence, including by taking appropriate measures to prevent, punish, investigate, or redress harm to an individual’s rights whether the harm stems from acts by private individuals and entities, or state employees and institutions.

The government’s ongoing prosecution for zina and its failure to ensure access to justice, effective remedies, and care facilities for sexual violence survivors—predominantly women and girls—violate several human rights. These include their right to nondiscrimination—as sexual violence affects women disproportionately—as well as their right to bodily integrity and autonomy, their right to privacy, and their right to an effective remedy.

To better protect women and girls from sexual violence and to comply with its international human rights obligations, Mauritania should:

  • Impose an immediate moratorium on prosecuting and detaining individuals for zina;
  • Immediately release all individuals currently in detention on zina charges and move towards abolishing this criminal offense;
  • Pass a law on gender-based violence that defines the offense of rape, criminalizes all other forms of sexual violence, imposes adequate and proportionate sentencing for alleged perpetrators, decriminalizes consensual sexual relations, creates specialized prosecutorial units and shelters throughout the country equipped to house women and children on a short, medium, and long-term basis, and allocates adequate funding to implement such reforms;
  • Increase its capacity to provide survivors safe spaces beyond the few emergency accommodation options currently offered by civil society organizations;
  • Craft gender-responsive investigative trainings and require law enforcement officials to take them periodically, and ensure that they, along with judges and health professionals, follow forensic protocols specific to sexual assault cases; and
  • Ensure greater access to medical care for survivors, including psychological support.

 

Recommendations

To the National Assembly

  • Review and adopt the draft law on gender-based violence, after amending its provisions to comply with Mauritania’s international human rights obligations, ensuring it adequately takes all feasible measures to prevent and deter gender-based violence, protect survivors, and prosecute perpetrators including by:
    • Repealing provisions in the Penal Code criminalizing consensual sexual relations, other “moral crimes,” and abortion.
    • Criminalizing all forms of sexual assault (both perpetrated and attempted) and gender-based violence, including female genital mutilation and early, child, and forced marriages.
    • Providing clear definitions of notions such as sexual assault, attempted rape, rape (including marital rape and penetration with an object), gender-based violence, consent, and inhumane practices, in line with international standards (see below).
    • Providing for mandatory, periodic, and institutionalized training and awareness-raising programs on gender-based violence and adequate institutional responses for law enforcement officials, judges, and health professionals.
    • Providing for the creation of special prosecutorial units specialized in gender-based violence while ensuring witness protection and preventing stigmatization of sexual violence survivors.
    • Providing funding for the implementation of measures within the law, particularly for the creation of shelters providing short-, medium-, and long-term accommodation options to sexual violence survivors, awareness-raising campaigns, new means of forensic testing including DNA evidence, and specialized police, prosecutorial units, and court sections to investigate and hear cases of sexual violence.
    • Clarifying how the draft law will interact with other existing laws such as the General Code of Children’s Protection, the law on reproductive health and the Penal Code.
  • Repeal article 306 of the Penal Code prohibiting, among other things, offenses to public decency and Islamic morals; these charges are sometimes used as a fallback provision to punish consensual sexual relations outside marriage.
  • Repeal article 307 of the Penal Code, which criminalizes consensual sexual relations outside marriage (zina).
  • Repeal article 293 of the Penal Code and article 22 of the 2017 law on reproductive health criminalizing abortion.
  • Amend article 309 of the Penal Code  to define rape either as a physical invasion of a sexual nature of any part of the body of the victim with an object or sexual organ without consent or under coercive circumstances and explicitly criminalize marital rape or by providing for a broad offense of sexual assault, defined as a violation of bodily integrity and autonomy, graded based on harm, and providing for aggravating circumstances including but not limited to the age of the survivor, the relationship of the perpetrator and the survivor, the use of threats or violence, the presence of multiple perpetrators and the gravity of long-term mental and physical consequences of the assault. 
  • Criminalize other non-penetrative forms of sexual assault.

To the Ministry of Social Affairs and Family

  • Create or fund the creation of shelters where women and children who survived sexual violence can receive comprehensive support services, including legal assistance, psycho-social counseling and accommodation options, in both urban and rural areas, accessible to all.
  • Increase financial support and oversight of existing centers providing direct support services to sexual violence survivors run by civil society organizations to improve their:
    • Accommodation capacity, including overnight stay and services; and
    • Ability to protect both survivors and support staff from threats of retaliation.
  • Develop or fund the development of specific services, including safe housing, to support women and girls who are unwilling or unable to return home or to reside with their extended families as a result of being ostracized as victims of sexual assault, for perceptions of so-called moral transgressions, or risk of harm in the home. Women and girls in safe housing should have freedom to come and go and be provided with assistance to seek educational and employment opportunities.
  • Support the development of transition centers and services adapted to the special needs of women and girls coming out of prison.
  • Develop awareness-raising campaigns about the various forms of sexual violence.  Such campaigns should target the general public, law enforcement, and judicial officials, health professionals, and religious leaders who may influence public opinion. Such campaigns should seek to erode the social stigma surrounding sexual assault and rape survivors, to challenge victim-blaming, and to promote available resources for survivors to seek protection and remedies.
  • Adopt national standardized protocols of data collection of sexual violence incidents and complaints in coordination with the Ministries of Health, Justice, Interior and National Office of Statistics at a minimum disaggregated by sex, gender, age (of the survivor and, if known, of the perpetrator), language spoken by the survivor, and type of violence. Better data collection is a step toward developing tailored public policies on preventing and responding to sexual violence.
  • Undertake studies into the prevalence of sexual violence against men and boys.

To the Ministry of Health and its National Program on Reproductive Health

  • Adopt forensic guidelines on documenting and treating sexual violence in line with the World Health Organization’s (WHO) guidelines, including the standard form on such documentation, prohibiting the use of “virginity tests,” and emphasizing doctors and other health workers’ obligation to provide medical assistance and forensic testing if sought by the survivor, without requiring the survivor to obtain a police referral.
  • Support the forensic training of health professionals who can provide both medical treatment and conduct forensic examinations and testing during a single consultation, including doctors, nurses and midwives, to increase survivors’ access to professional evidence collection and increase the reliability of such evidence in court.
  • Prioritize the recruitment of female doctors and healthcare professionals to increase access of sexual violence survivors to female practitioners.
  • Support the development of sexual violence units in public hospitals and health centers, and make their therapeutic care and forensic testing services available free of charge or affordable to all regardless of means, compliant with WHO guidelines on medico-legal responses to sexual violence, building upon the expertise of the special unit established at the public hospital “Mother and Child” (“Hôpital Mère et Enfant”) in Nouakchott.  

To the Ministry of Interior

  • Create or fund and require the participation in periodic trainings on gender-responsiveness and sexual violence and other forms of gender-based violence of law enforcement officials, particularly police officers, to avoid re-traumatization of survivors in police responses and address implicit biases in investigative procedures.
  • Create or fund and require participation in specific trainings to handle cases of sexual violence against children. The trainings should be required of law enforcement officials, particularly those working in police stations that only take on cases involving children (brigades des mineurs).
  • Promulgate written protocols for police that would require, in cases of gender-based violence:
    • Carrying out risk assessments, recording the complaint, advising the complainant of her rights, filing an official report, arranging for transport for medical treatment, and providing other protection; 
    • Ensuring that women complainants have the option to speak and submit their complaint to female officers;
    • Ensuring that a social worker be available to assist women who file a complaint with the police; 
    • Interviewing the parties and witnesses, including children, in separate rooms to ensure there is an opportunity to speak freely; and
    • Monitoring and accountability for law enforcement officials who do not abide by such protocols.
  • Increase efforts to recruit and promote female police officers and national guards by addressing and eliminating discrimination, direct and indirect in the recruitment process, and conducting significant and ongoing recruitment and professional development campaigns for them.

To the Ministry of Justice

  • Create or fund and require participation by prosecutors and judges in periodic trainings on gender-responsiveness and sexual violence and other forms of gender-based violence to reduce re-traumatization of survivors and address implicit biases in prosecutorial practices and court proceedings.
  • Create or fund and require participation of Mauritanian prosecutors and judges in specific trainings to handle cases of sexual violence against children.
  • Impose an immediate moratorium on prosecuting and detaining individuals for zina and immediately release all individuals currently in detention on zina charges.
  • Establish specialized prosecutorial units to investigate cases of sexual and gender-based violence, provide adequate funding and specialized training for prosecutors, in order to develop expertise in this area, increase the number of cases investigated, and improve the efficiency of the investigative process for complainants.
  • Ensure that prosecutors and investigative judges urge police officers under their supervision to respond to, investigate, and diligently collect evidence in all cases of gender-based violence.
  • Continue to fund and require participation of Mauritanian prosecutors and judges in regular training programs on the international and regional human rights instruments that Mauritania is obliged to enforce and implement domestically, particularly the Convention on the Elimination of all Forms of Discrimination against Women, the Convention on the Rights of the Child, the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, and the African Convention on the Rights and Welfare of the Child.
  • Ensure that evidentiary documents in court cases such as medical reports which are in a language other than Arabic, which is the official language of the courts, are translated and notarized to minimize translation issues that may arise during the fact-finding phase of court proceedings.
  • Ensure that all complainants are given the opportunity to seek compensation from the defendant in the course of a criminal legal action via the mechanism of “partie civile,” and by urging police officers, prosecutors, and judges to inform complainants about their right to seek compensation for the alleged damage endured and provide guidance regarding the procedural steps to follow. 

To the Ministry of Islamic Affairs and Fundamental Teachings

  • Urge the Ministry of Interior and Ministry of Justice to immediately release all individuals serving indefinite jail time as a result of a conviction for zina
  • Mobilize religious leaders and scholars (ulema) to support awareness-raising campaigns about sexual violence in Mauritania, particularly condemning sexual assault and rape and encouraging survivors to speak out and if desired, to seek judicial accountability.
  • Support the adoption of a draft gender-based violence law compliant with international human rights law standards.

To the United Nations, the African Union, and International Donors

  • Urge Mauritanian authorities to release individuals detained on zina charges.
  • Support the Mauritanian government to conduct research on the scope of the issue of sexual violence and the treatment of survivors by the justice and social welfare systems that would provide the basis for new national action plans and policies.
  • Call on the Mauritanian government to prioritize the adoption of a gender-based violence law compliant with Mauritania’s obligations under international law, the repeal of articles 293, 306, and 307 of the Penal Code, and reforms to laws that discriminate against women.
  • Support women’s rights and the elimination of sexual violence in Mauritania, through political, technical, and economic support. Priorities under such a commitment should include:
    • Stable, long-term assistance for civil society organizations providing direct support services to sexual violence survivors, to enable them to provide accommodation, free legal aid, and psycho-social counseling to sexual violence survivors;
    • Support for the government to create “open” shelters throughout the country, providing safe short-, medium-, and long-term housing options and rehabilitation services for women and girls who survived sexual violence, and women and girls transitioning out of prison;
    • Creation of a national emergency helpline for survivors of sexual violence to report incidents and seek help;
    • Psycho-social services and counseling for women and girls in detention; and
    • Large-scale national awareness-raising campaigns advising women and girls about their rights and explaining how any sexual violence survivors can get help.

 

Methodology

This report is based on interviews conducted by Human Rights Watch researchers during three trips to the capital Nouakchott, and a trip to the southern city of Rosso, on October 17-23, 2017, January 20-February 12, 2018, and April 20-28, 2018. The researchers interviewed women at the women’s prison in Nouakchott on January 20, 2018, with permission granted by the Directorate of Criminal Affairs and Prison (Direction des affaires pénales et de l’administration pénitentiaire) .

Human Rights Watch interviewed 12 girls and 21 women—eight women who recounted the story of a relative below 18, and 13 women who recounted a personal story—who reported enduring one or more incidents of sexual assault. Some of the women were under 18 at the time of the assault that they recounted. The research team conducted all interviews individually, in a safe and private space, with some exceptions. Some interviews of children were conducted in the presence of a parent or an adult relative.

While researchers found it difficult to find survivors of sexual violence willing to share their experience, 33 women and girls aged from 13 to 42, did so willingly. Women and girls who accepted to participate in the research were Haratine (black Moors, i.e. of Arab-Berber descent) or Afro-Mauritanian (Négro-mauritaniennes), from relatively poor backgrounds. The research team identified interviewees thanks to referrals by Mauritanian women’s rights groups operating centers providing direct support services to sexual violence survivors throughout the country.

During the visit of the women’s prison, Human Rights Watch interviewed individually three women who were charged with or convicted of zina and who, at the time of the interview, were either in pre-trial detention or serving a long-term prison sentence. Interviews took place in a private room, in the presence of an interpreter working with the research team, and away from prison guards.

Interviews were conducted in Hassaniya, classical Arabic, Pulaar, Wolof and French, usually with the aid of a woman interpreter. Many of the survivors interviewed courageously shared their experiences, saying they wanted the world to know their stories, but many requested that Human Rights Watch recount it in a manner that fully concealed their identity. For this reason, all names used to identify survivors throughout the report are pseudonyms. We have also omitted locations mentioned in their accounts.

Human Rights Watch also interviewed 23 activists, leaders of nongovernmental organizations (NGO), social workers, lawyers, a psychologist, and journalists affiliated with eight Mauritanian NGOs, including three that operate women’s centers providing direct services to sexual violence survivors, and four international NGOs. The research team also met with both Mauritanian institutional actors and representatives of multilateral organizations, including then Minister of Social Affairs and Family, Ms. Maimouna Mint Taghi, the president of Mauritania’s National Human Rights Commission, Irabiha Abdel Wedoud, and representatives of the United Nations Population Fund’s country office, the United Nations Children’s Fund’s country office, the Office of the High Commissioner for Human Rights, the European Union Delegation office, and embassies and development agencies of France, Germany, Spain, and the United States. 

The research team provided no remuneration or other inducement to any of the interviewees. In each case, Human Rights Watch explained to the interviewee the purpose of the interview, how it could be used and distributed, that their participation was voluntary, and discussed the degree of confidentiality and anonymity the interviewee would be most comfortable with and obtained consent to include their experiences. Human Rights Watch advised all interviewees that they could stop or decline to answer questions at any time in the interview and sought to minimize the risk of further traumatization of those interviewees who had experienced physical or sexual abuse.

While the research team limited its interviews to two major cities, the report makes more general observations about national trends based on the field experience of partner civil society organizations with offices in every region (wilaya), analysis of multilateral organizations operating throughout the country, and a review of available case law.

On July 12, 2018, we submitted a letter to various ministries of the Mauritanian government with questions based on our preliminary findings and did not receive any response. The letter is reprinted in the appendix to this report.

 

I. Background

Mauritania’s ethnic diversity reflects the country’s geographical location, bridging the Maghreb and sub-Saharan West Africa. The population consists of three main ethnic groups, though important cultural distinctions and social hierarchies nuance each. The vast majority across ethnic lines are Sunni Muslim.

The first two of these groups speak the local dialect of Arabic known as Hassaniya. The first group of Hassaniya-speakers are known as “Beidans,” descended from Arabs and Berbers who migrated from the north and east. Beidans dominate the country’s political and economic elite.[2] “Haratines” form the second and larger group of Hassaniya-speakers. They are composed mostly of darker-skinned former slaves and their descendants. The third population group is often referred to as “Afro-Mauritanians” or “Négro-mauritaniens” and is comprised of several ethnic groups whose native tongues are sub-Saharan African languages rather than Arabic.[3] The Halpulaar are by far the most numerous subgroup of Afro-Mauritanians, followed by the Soninké and smaller populations of Wolof and Bambara speakers.

Women’s Rights

In May 2001, Mauritania acceded to the Convention on the Elimination of All Forms of Discrimination Against Women, with a reservation regarding provisions it deems contrary to Islamic law (Sharia) and Mauritania’s Constitution.[4] The same year, Mauritania codified key principles of family law through the adoption of a Personal Status Code.[5] Since its adoption, the Code has been criticized for discriminating against women, especially with respect to equal rights with men to enter into marriage, rights during marriage, and at its dissolution, inheritance, and in the transmission of nationality to one’s offspring (along with the Nationality Code of 1961 which also sets discriminatory criteria in the transmission of nationality).[6]

Mauritania subsequently adopted legal reforms and national strategic plans intended to strengthen women’s rights and eliminate slavery and sexual exploitation.[7] In December 2005, Mauritania acceded to the Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa (Maputo Protocol), without reservations.[8] In 2006, the country adopted an Order (ordonnance) reserving 20 percent of seats to women in municipal elections and requiring electoral lists to include a minimum number of women varying depending on the electoral district in legislative elections. [9]

In 2017, Mauritania undertook two steps to align its domestic law with international human rights standards. In October 2017, the National Assembly passed a new law on reproductive health recognizing it as a universal fundamental right, authorizing family planning in public and private hospitals and health centers and prohibiting all forms of sexual violence and abuse.[10] In December 2017, it adopted a new General Code on Children’s Protection, broadening children’s rights protections and strengthening the provisions of the 2005 landmark Order on the Penal Protection of the Child.[11] In early 201-, the executive branch also approved a new draft law on gender-based violence that, if amended to comply with international human rights standards, would significantly improve support services and means of legal recourse available to survivors. The draft law was approved by Mauritania’s Senate in 2016 (an institution that has been dissolved since) but later rejected by the National Assembly and was awaiting a second vote by the same chamber at the time of writing.

Despite legislative and institutional progress achieved over the last two decades, Mauritanian women remain economically, politically, and socially marginalized, with significantly lower literacy rates, professional mobility, and financial security than men.[12]

According to the Mauritanian National Office of Statistics, in 2015, 27 percent of Mauritanian women said that a husband has the right to be physically violent with his spouse(s) if she goes out without telling him, if she neglects children, if they argue, if she refuses to have sexual relations with her husband, or if she burns the meal.[13] 

While recent statistics on the incidence of gender-based violence are not publicly available, Mauritanian NGOs and institutional actors report that it is widespread. According to a 2017 report from the National Human Rights Commission, several common factors hinder the elimination of violence against women in the country, including the “inadequacy of existing implementation measures […] such as awareness-raising campaigns, training programs for law enforcement officials and the lack of financial and human resources of mandated institutions; […] women’s poverty and low literacy rates, the lack of knowledge of their right[s], their fear to bring cases before courts, and their lack of access to information.”[14]

Awareness-raising poster in French on gender-based violence sponsored by the UN Children's Fund, Doctors of the World and the Mauritanian government, displayed at a support center for women and girl survivors of gender-based violence, run by the Mauritanian Association for the Health of the Mother and the Child, Nouakchott, Mauritania, January 23, 2018. 

© 2018 Candy Ofime/Human Rights Watch

In 2015, 28 percent of women and girls aged 15 to 19 were married (versus 0.8 percent of males of the same age), with rates of early and child marriage twice as high in rural than in urban areas. In addition, 16 percent of girls and women aged 15 to 49 years-old were married before the age of 15.[15] While the Personal Status Code provides that men and women must be 18 or older to consent to marry,[16] the Code also allows the legal guardian of an “incapable” girl (broadly interpreted as orphan girls or girls without legal guardians) to marry her “if he identifies an obvious interest” to do so.[17] The Code also provides that “the silence of any young girl means consent to marry.”[18] Further, the General Code of Children’s Protection provides sentences from five to 10 years of prison and a fine for a guardian who marries a child “in the exclusive interest of the guardian,” without defining what that phrase means.[19]

In 2015, two thirds of women and girls aged 15 to 49 reported having gone through a form of female genital mutilation (FGM) or excision in the past, with significantly higher rates in rural than urban areas (79 percent compared to 55 percent). Of women with daughters, more than half reported that at least one of their daughters aged 14 or under had gone through a form of FGM or excision.

Awareness-raising poster in Arabic on gender-based violence by Sisterhood is Global Institute Jordan, sponsored by the UN Population Fund, the European Union and Oxfam displayed at a support center for women and girl survivors of gender-based violence, run by the Association of Women Heads of Family, Nouakchott, Mauritania, January 23, 2018.

© 2018 Candy Ofime/Human Rights Watch

In 2017, Mauritania formally and unconditionally criminalized the practice of FGM in the newly adopted General Code of Children’s Protection and law on reproductive health.[20] For many years, this practice could only lead to criminal sanctions if it led to health complications.[21]

Over the last few years, the government has attempted to address the issue more proactively by adopting national strategies, establishing national and regional councils on gender-based violence and FGM with the aim to progressively eradicate this harmful practice. The Ministry of Social Affairs and Family and its partners prompted doctors to adopt a national declaration condemning the adverse effects of FGM, and Islamic scholars issued a “fatwa” (a religious edict that provides a non-binding legal interpretation of Sharia) declaring that the practice lacked a religious basis.[22]

Sexual abuse and violence in the context of domestic relations remains taboo and a blind spot in the studies and activities coordinated by institutional actors addressing gender-based violence, according to both the National Human Rights Commission and Mauritanian women’s rights groups.[23]

Overall, the lack of gender-sensitive indicators and tools for data collection of sexual violence creates opacity about the number of cases authorities ought to respond to and about the scale of the phenomenon, and thus hinders the design of adequate public policies.[24] A representative of the Spanish NGO Médicos del Mundo told Human Rights Watch that, “until recently, Mauritania’s Ministry of Health tallied sexual violence incidents under the category of accidents on public thoroughfares (accidents de la voie publique) or victims of intentional assault and battery (victimes de coups et blessures volontaires).”[25]

Poster for a 24/7 emergency hotline operated by the Mauritanian Association for the Health of the Mother and the Child, Nouakchott, Mauritania, January 30, 2018. 

© 2018 Candy Ofime/Human Rights Watch

Similarly, a representative of the United Nations Population Fund’s Mauritania country office told Human Rights Watch that “only civil society organizations report data on this issue. And their data is alarming.”[26]

In 2017, the Mauritanian NGO Association of Women Heads of Family (Association des Femmes Chefs de Famille) reported intervening in 428 cases of rape, 128 child marriages, and 1,623 domestic conflicts, some including sexual violence. The same year, the Mauritanian Association for the Health of the Mother and the Child reported supporting 260 women, girls, and boys survivors of sexual assault nationally and 40 women and girls who endured domestic violence.[27]

 

II. Barriers to Redress

Rouhiya

Rouhiya was 5-months pregnant from her father, for the second time, when she shared her story with Human Rights Watch. She was 17 but showed a strikingly composed demeanor.

“My father treated me like his wife. I never told anyone, but I wanted to flee. […] When I spoke about it with my mother, she told me not to tell anyone. My father threatened to kill me. He does the same thing to my [toddler] sister.

I tried to flee with a 23-year old young man who wanted to marry me. I met him in the street.”

Rouhiya said that in July 2016, she joined the young man at his house, where he locked her up, drugged her and, along with three other men, repeatedly gang-raped her for two weeks.

Rouhiya’s parents called the police, who broke into the man’s house and found her traumatized. Her father took her to a police station the next day to bring charges against the four men. 

“The next day, we went to the prosecutors’ office. […] He asked me questions about my experience, while the four men were with me in the same office. The prosecutor asked me why I had left with this friend. I explained that I was scared of my father—but I did not admit that he had been raping me.”

While the four men were placed in pre-trial detention, the police also arrested Rouhiya and prosecuted her for having engaged in sexual relations outside marriage (zina). She spent a few weeks at a juvenile justice facility, before the police transferred her to the national women’s prison in Nouakchott. 

“I asked them why [are you arresting me]? What did I do? They told me to keep quiet and not to ask questions,” Rouhiya recalled.

In the hours following her arrival at the prison, Rouhiya fainted in her cell. Within 24 hours, a women’s rights organization obtained her release on health grounds.

Outside prison, women’s rights organizations assisted Rouhiya but none had the capacity to shelter her over the medium term. Rouhiya had no choice but to return to her abusive home.

She returned to the center in 2017 run by the organization that had facilitated her release from prison, when she was six months pregnant from her father. “I gave birth,” she said. “But the child was stillborn.”

Institutional and Social Obstacles to Redress

Stigma and Social Exclusion of Sexual Violence Survivors

“Culturally, people prefer not to raise [incidents of sexual assault]. It is a shame upon the family. […] Socially, it is frowned upon. The social reaction in the environment from which the survivor comes is difficult.”[28]
— Khadijetou Cheikh Ouedrago, Gender Specialist, UNFPA country office

Social pressure and stigma, both in the home and community, can be the first obstacles for survivors in Mauritania who wish to file a police report. Five women who said they had been raped, four of whom were under 18 at the time of the incident, told Human Rights Watch that they did not speak about the rape until their pregnancy became physically noticeable. Mariama, 20, who said a taxi driver raped her when she was 17, recalled:

When I was eight months pregnant, my mother realized it, and asked me how it happened. That’s when I told her about the rape. My father got very angry, he took me to the police station, and told the policemen that his daughter should be locked up because she had slept with a man, that he didn’t want her anymore in his house. I spent a night in police custody.[29]

Mauritania’s NHRC has found that the taboo surrounding sexual violence “doubles survivors’ victimization.” [30] According to a 2017 report on women’s rights in Mauritania, the NHRC observed that “survivors are rejected by society, their families do not support them and the judicial path to regain their rights is not easy.”[31] 

The Mauritanian lawyers who Human Rights Watch interviewed all said that social stigma inhibits survivors’ willingness to seek help and to pursue legal action. Lawyer Jemal Abbad, who represents survivors of sexual assault supported by the Mauritanian women’s rights NGO Association of Women Heads of Family, explained: “Sexual crimes are taboo […] in Mauritanian society. There are parents who refuse to talk about it. They think it will harm the family’s honor.”[32]

Lawyer Ahmed Ould Bezeid El Mamy, from the same group, also noted that such pressure affects women from different ethnic groups and socio-economic backgrounds in different ways. According to Bezeid, sexual violence is particularly taboo among wealthy, prominent families, explaining that women who have been raped often travel to Senegal to give birth discreetly when they can afford it. He also observed that early marriages are a common way to “save the honor of the family.”[33] 

Sexual assault, particularly for single women and girls, scars them socially in a way that limits their acceptance in their community and makes their marital prospects more difficult. Marie-Charlotte Bisson, head of the Swiss NGO Terre des Hommes-Lausanne’s Mauritania country office, has observed that “social exclusion and stigma associated with sexual assault often leads the survivors’ whole family to move to a different neighborhood.”[34]

Like in other countries, value is still placed on the myth that an intact hymen indicates virginity. Fatimata M’Baye, the first female lawyer in Mauritania who founded and heads the Mauritanian Human Rights Association, said: “It is essential to understand the social assessment of the hymen. Our patriarchal society requires women to be ‘intact’ when they marry. If a woman is not, she must have been with someone else.”[35]

Overview of the Criminal Procedure

 

To set a legal action in motion, a survivor has to report the incident to the police. Police officers must notify the state prosecutor of the complaint, undertake a preliminary investigation, and provide the state prosecutor with a police report and preliminary case file, including the survivor’s medical certificate.[36] In criminal cases, police officers operate under the supervision and follow the instructions either of a state prosecutor or an investigative judge.

Police officers can arrest suspects and place individuals against whom they have “serious and consistent” evidence in police custody for 48 hours, a period that can be renewed once with the state prosecutor’s authorization.[37] The state prosecutor determines whether to open a criminal investigation and to refer the case to an investigative judge, who will oversee the fact-finding phase leading to trial, or decide to drop the case (ordonnance de non-lieu).[38] If the state prosecutor decides to drop the case, they must notify the complainant within eight days of the decision.[39]

Before trial, the investigative judge can decide to grant defendants provisional liberty under judicial control or place them in pre-trial detention.[40] Investigation and sentencing procedures can be expedited if the defendant is deemed to have been caught in the act (flagrant délit).[41]

If the investigative judge finds that there is enough evidence for a case to go to trial, they refer it to the criminal court that has jurisdiction to rule on the case.[42]

Poor Police Responses and Prosecutorial Practices

When women and girls overcome societal pressure and come forward to report incidents of sexual assault to the authorities, they often face additional obstacles created by the way police handle complaints and by how state prosecutors lead investigations of sexual violence cases.

Reporting the assault to the police is the first step survivors must take if they are to seek institutional protection and judicial accountability. Twenty-three out of 25 interviewees who were children at the time of their assault said they reported the incident to the police. However, only 4 out of 8 women who were adults at the time of their assault reported it to the police. The Mauritanian Association for the Health of the Mother and Child, a women’s rights NGO operating centers providing direct services to sexual violence survivors throughout the country, said that women tend not to report sexual violence incidents to the police because of stigma and risk of prosecution for zina. As a policy, the NGO advises women not to report sexual assaults incidents to the police to avoid the risk for survivors that they themselves be prosecuted.

No standardized protocols exist at the regional or national levels for police officers to respond to sexual violence cases. After hearing and taking notes of the complainant’s account, a police officer can issue a referral for a forensic medical examination by a doctor at a public hospital or health center. In public health facilities, obstetrician-gynecologists usually perform medical examinations and forensic testing simultaneously and issue medical certificates directly sent to the police to add to the complainant’s case file.

In the capital, Nouakchott, three police stations exclusively take on cases involving children (brigades des mineurs),[43] as either accused or complainant. These police stations accommodate on-site social workers mostly employed by civil society organizations, but not all stations provide them a private office space.[44] The social workers also periodically visit police stations without a juvenile unit to identify new cases of sexual violence and can help survivors navigate interactions with their family and third parties, take legal action, and access medical and psychological support. Social workers Human Rights Watch spoke to were critical of the constraints of their role in police stations. Since most social workers do not have a formal accreditation and are allowed into police stations only informally, they can be required to leave the premises at any time.

Social workers usually attend children’s police hearings alongside a lawyer and can assist both children and adults in undertaking the various steps of medical and legal procedures. The director of a women’s rights center providing direct services to sexual violence survivors in Nouakchott told Human Rights Watch: “When the social worker receives a new case at the police station, she distinguishes between: (1) women whom we advise not to press charges because of the risk to be prosecuted for zina and (2) minors whom we advise to seek legal action.”[45]

In many of the interviews Human Rights Watch conducted, when survivors were above 18 or had a pre-existing relationship with the perpetrator, it appears police officers refused to investigate incidents of sexual violence. Khouloud who said she had become pregnant from rape by her former husband, told Human Rights Watch: “When I approached police officers, they told me that it was none of their business, that it was not part of their job, and that I should go speak to NGOs.”[46]

According to a UNFPA representative, “Much more needs to be done in order to create special procedures [for sexual assault cases] in police stations. Most police stations are full of men.”[47] All women and girls interviewed who said they reported to the police that they had been assaulted mentioned that they found themselves interacting mostly with male officers and that the police officers on duty never offered them the option to speak to a female officer.

They also went through in-take procedures that did not respect their privacy and confidentiality: officers usually asked questions in open spaces in the presence of several colleagues and family members. 15-year-old Fatimata, who reported being raped by a co-tenant of the apartment where her family lives, recounted: “At the police station, there were a lot of police officers in the room [where I was interviewed], my father, my uncle, my friend Aicha [who was assaulted by the same man], her father, and her uncle. A few women officers were present, but men were the only ones asking questions.”[48]

Survivors told Human Rights Watch that police officers asked them to narrate the incident. Officers then incorporate the survivor’s account into a police report that combines police officers’ observations, statements of the complainant, and police actions taken in relation to the incident reported.[49] Police officers send the report to the state prosecutor who can call the complainant and the alleged perpetrator for a hearing. Depending on the circumstances of the assault, the degree of physical violence involved, the survivor’s age and relationship with the alleged perpetrator, some police officers and state prosecutors seem to offer their own moral assessment of the incident reported. Human Rights Watch met Zahra, a woman in her twenties, and her 7-month-old daughter, Sakina. In 2016, Zahra said her neighbor—who lived in the same informal settlement as her and her relatives—raped her, threatening to kill her with a knife. “He used to woo me, he had told me he would marry me one day,” Zahra said.[50] One night he got home late from work, while Zahra and her sister-in-law were home alone. “He asked me to bring him water, but then he put his hand on my mouth, pulled out a knife, and closed the door. I wanted to scream but he threatened me with his knife and told me that if I screamed, he would cut my throat.” Zahra became pregnant from the rape and reported the assault to the police six months into her pregnancy. While the perpetrator was placed in pre-trial detention, she was also charged with zina and placed under judicial control. A social worker from the Association of Women Heads of Family who assisted Zahra throughout the course of the legal procedure told Human Rights Watch:

The hearing before the state prosecutor usually lasts an hour. The prosecutor asked Zahra: “If you did not consent, why didn’t you tell your parents? He kept provoking her with those kinds of questions. […] He asked her “Did you know him?” When Zahra opened up, he responded, “That’s not true. All the things you are saying are lies, you did this willingly.” He was asking leading questions but only took note of her answers.[51]

Limited Access to Therapeutic Care and Inadequacies of Forensic Testing

Police Referrals

Survivors, social workers, and NGO leaders interviewed reported that doctors practicing in public hospitals and health centers, who perform both medical examinations and forensic testing, will often only examine survivors in the immediate aftermath of an assault if there is a formal written police referral (réquisition) or if an emergency medical intervention is required.[52] 10-year old Faroudja was raped in an abandoned house by a relative a few weeks before speaking to Human Rights Watch. The same night, her mother took her to a public hospital in Nouakchott where a doctor informed her that he could not examine her unless she obtained a police referral.[53] Requiring such a referral prevents survivors who are not willing to report to the police from accessing immediate medical care and collection of forensic evidence in a timely fashion.

Forensic Examinations

There is only one practicing forensic doctor in Mauritania and forensic medicine is not regulated by law.[54] The lack of forensic expertise is exacerbated by the absence of specialized forensic doctors and established uniform protocols that doctors should follow when collecting forensic evidence. Conventional obstetrician-gynecologists end up performing non-standardized forensic examinations of sexual violence survivors. The state does not permit midwives to perform forensic examinations, despite calls for them to be allowed to do so by nongovernmental organizations because there are more female midwives than female doctors. According to the coordinator of the Spanish NGO Médicos del Mundo in Mauritania, in most public hospitals and health centers, the doctor who examines and performs forensic testing on sexual violence survivors is likely to be a man.[55]

Moreover, patients often have to wait hours to see a doctor after an assault due to the general shortage of doctors in Mauritania. In 2014, the Ministry of Health estimated that only 239 family practitioners (that is one per 14,729 residents) and 329 specialists (that is one per 9,301 residents) were available nationally to provide care to a population of some 3.5 million.[56] To attain high coverage of skilled birth attendance (80 percent), the World Health Organization (WHO) estimates that an average of 2.3 skilled health workers (doctors, nurses, and midwives) per 1,000 population is necessary, far above Mauritania’s current level.[57] “The victim can wait a whole day. The chief doctor oversees surgeries, birth deliveries... If the victim comes back in the afternoon, she has often already taken a shower or has urinated,” thus weakening the forensic evidence, said Aminetou Mint Ely, president of the Association of Women Heads of Family, which runs centers providing support to sexual assault survivors throughout the country.[58]

Aminetou Mint Ely [center, holding phone], president of the Association of Women Heads of Family and staff of a support center for survivors of gender-based violence, run by the association, Rosso, Mauritania, February 7, 2018. 

© 2018 Candy Ofime/Human Rights Watch

Fear of retaliation also dissuades doctors from performing forensic examinations and issuing medical reports that may be used to prosecute alleged perpetrators. Doctor Amadou Kane, coordinator for Médicos del Mundo, told Human Rights Watch, “Health professionals do not want to interfere with [legal] action when they risk being called to testify. Being identified as the doctor who examined a victim engaged in litigation creates security risks. […] Certain health professionals are worried that they may cause the perpetrator’s incarceration” and fear reprisals by them or their relatives.

Survivors interviewed who had seen a doctor in the immediate aftermath of the assault were confused about the medical examination they went through. Both children and adults were alone when they met the doctor who simultaneously conducted a forensic examination and provided medical treatment. Some patients had only limited understanding of the tests performed. “I don’t know what kind of exams the doctor performed. The doctor did not explain to me what she was doing,” said 17-year-old Rouhiya, whose story is relayed above.[59]

Most first-response medical examinations involve the collection of vaginal swabs, semen analysis, and testing for sexually transmitted infections (STI).[60] While doctors often prescribe emergency birth-control pills if they find traces of vaginal penetration, they rarely prescribe post exposure prophylaxis treatment for HIV and other STIs.[61] DNA tests are not available in the country.[62] Meanwhile, “the state of the women’s hymen is the first thing families are worried about,” explained Amparo Fernández del Río, coordinator of the Spanish NGO Médicos del Mundo’s Mauritania country office. Human Rights Watch reviewed several medical certificates prepared by doctors who forensically examined victims of sexual assault. They were all handwritten and brief. Each answered three points: whether or not the doctor observed traces of physical violence on the patient, the type of STI tests performed, and the state of the survivor’s hymen.

The current practices are not in line with the World Health Organization’s guidelines on forensic reporting on sexual violence. These guidelines provide that, among other things, “treating a victim of sexual assault with respect and compassion throughout the examination will aid her recovery,” and require that “all parts of the examination should be explained in advance; during the examination, patients should be informed when and where touching will occur and should be given ample opportunity to ask questions. The patient’s wishes must be upheld at all times.” They also provide that ideally the same practitioner should provide the forensic examination and health services at the same visit, which is currently the case in Mauritania, and that authorities should ensure “that female nurses or physicians are available whenever possible. If necessary, efforts to recruit female examiners should be made a priority.”[63] The WHO has stressed similar considerations for children and adolescents who have been sexually abused, including where possible, they should be offered the choice of a male or female examiner and should be examined by someone trained.[64]

Moreover, the WHO has said that “there is no place for virginity testing; it has no scientific validity and is humiliating for the individual,” noting that “the hymen is a poor marker of penetrative sexual activity or virginity in post pubertal girls.”[65] It has called for a thorough physical examination of sexual assault survivors noting that not all sexual assault survivors will have genital injuries that are visible, including of the hymen, and that this does not disprove their claim.[66]

While judicial investigations, court proceedings and decisions are rendered in Arabic, medical records included in a complainant’s case are written in French, which can lead to inaccurate translation in the course of legal proceedings, according to lawyers Human Rights Watch consulted. Lawyer M’Baye told Human Rights Watch:

I once observed a prosecutor who speaks Arabic review a medical certificate drafted in French including the following mentions “touching, introduction of an object in the complainant’s vagina, blood on the inner lips.” His interpreter explained to him that the medical certificate said, “minor caressing.”[67]

Medical Treatment for Sexual Violence Survivors, Criminalization of Abortion, and Related Costs

Mauritania’s 2017 law on reproductive health declared that the right to reproductive health is a “universal fundamental right, guaranteed to all, at any stage of life.”[68] However, the law bans abortion, punishing those who provide and receive the procedure, except where the pregnancy poses a “threat to the mother’s life.”[69] The law prohibits abortion even in cases of sexual violence. The WHO has shown that restrictive laws, stigma, and poor availability of services can lead to women and girls with unwanted pregnancies to resort to unsafe abortion, sometimes forcibly.[70] In cases where sexual violence results in a pregnancy that a woman wishes to terminate, the WHO calls for women to be referred to legal abortion services.[71]

29-year-old Khouloud, who was raped by her former husband, told Human Rights Watch: “When he learned that he had gotten me pregnant, he brought two pills [for abortion]. He put one in my mouth, another one in my vagina. After that, I went to the bathroom and blood came out of my body, I was dizzy. When I tried to report the incident to police officers, they told me it was none of their business. They told me: ‘We can speak to him and tell him to provide for your kids but for your pregnancy, you should go speak to NGOs.’”[72]

Medical care in the aftermath of an assault, including emergency interventions and forensic examinations, carry a cost that none of the survivors Human Rights Watch spoke to could afford. Some families could not even afford the cost of transportation to medical facilities.[73] All medical costs of survivors interviewed were covered by social workers who said they sometimes had to pay survivors’ medical expenses out of their own pockets when they exceeded the stipend allocated by the NGO they work for.

In June 2017, the first and only sexual violence unit at a Mauritanian public hospital was inaugurated, at the Mother and Child Hospital in Nouakchott (Unité Spéciale de Prise en Charge). Within its first year of operations, the unit supported 184 survivors of sexual violence in Nouakchott.[74] It provides obstetrical and gynecological consultations, emergency surgical interventions, and STI screenings free of charge to survivors, regardless of whether or not the patient obtained a police referral, with an automatic follow-up appointment a month after the first consultation. Since May 2018, the unit has also been offering free psychological counseling to all new patients through the assistance of a psychologist on staff at the hospital, supported by the Ministry of Health. The hospital staff and doctors have received training on best practices to handle cases of sexual violence and have received protocols on how to record new sexual violence incidents and how to perform forensic medical examinations in a way that overall complies with WHO guidelines.[75] Depending on the complainant’s place of residence in Nouakchott, police referrals do not systematically direct survivors to this unit to complete a forensic examination.

Many of the survivors interviewed reported experiencing emotional reactions such as sobbing, shame, fear, and mutism weeks after the assault. According to the WHO, such emotions are direct psychological consequences of sexual assault, although they vary from person to person.[76] Beyond the initial psychological screening offered by some women’s rights groups, survivors interviewed received no psychological support following their assault. In 2016, the NGO Médicos del Mundo counted only four practicing psychiatrists and fifteen psychologists in Mauritania, most of them working for public hospitals in the Nouakchott area.[77]

Legal Obstacles and Criminalization of Survivors

Weak Domestic Legal Standards

The Penal Code criminalizes rape but does not define it. Under article 309, unmarried defendants convicted of rape risk a sentence of hadd (prescribed by God) and flogging, while married defendants must be sentenced to death.[78]

Rape is the only form of sexual violence explicitly prohibited under the Penal Code and the only basis for legal recourse by adult survivors of sexual assault.

New Law on Reproductive Health

Mauritania’s 2017 law on reproductive health prohibits “all forms of sexual violence and abuse, particularly affecting children and teenagers.” However, it does not define sexual violence or abuse or set out penalties, referring instead to articles 309 (prohibiting rape) and 310 (providing for aggravating circumstances for a rape offense) of the Penal Code. [79] Further, it reaffirms the ban on abortion, with no exception for pregnancies resulting from sexual assault (see above).[80]

Special Substantive and Procedural Protections of Children

Article 24 of the 2005 Order on the Penal Protection of the Child provides specific rights and protections to children under criminal law. The Order criminalizes rape perpetrated against a child, defined as a person under the age of 18 under Mauritanian law,[81] but again does not define rape, defaulting to provisions of the Penal Code (articles 309 and 310).[82] It punishes rape committed against a child with hadd sentences (prescribed offenses under Islamic Law) or five to 10 years’ imprisonment.[83] Articles 25 and 26 of the Order also criminalize sexual harassment of a child and “sexual assaults other than rape” against children and provides from two to four years’ imprisonment and a fine without defining the offense of sexual assault.[84] Article 26, section 2 also provides that any form of sexual touching performed on a child amounts to pedophilia and must be punished by a five-year prison sentence. 

General Code of Children’s Protection

Mauritania’s 2017 General Code on Children’s Protection expanded the criminalization of sexual violence against children by criminalizing any sexual abuse perpetrated against a child. The new law defines sexual abuse of a child as “the child’s submission to sexual contacts by a person who has a relationship of authority, trust or dependence over the child.”[85] Under the Code, touching or inciting the child to touch oneself, him or herself, or a third party directly or indirectly with a body part or sexual object amounts to “sexual contact.”[86]

Further, the Code formalizes the duty of any person, including individuals under a professional duty of confidentiality, to report to local authorities “any threat to a child’s health, development, physical or moral integrity.”[87]

The Code also provides that in the absence of specific juvenile detention centers, children must be separated and isolated from adults in detention facilities.[88]

Moral Crimes and Criminalization of Consensual Sexual Conduct

Article 306 of the Penal Code prohibits offenses to public decency and Islamic morals. The 2018 amended version of article 306 also prohibits violations of God’s prohibitions.  Article 307 criminalizes consensual sexual relations outside marriage. Both provisions, lawyers said, have been used to prosecute survivors of sexual violence and have dissuaded other survivors from reporting their assault.

Article 306(1) is a catch-all provision sanctioning “any person who would commit an offense to public decency or Islamic morals, or violate one of God’s prohibitions or help to violate them.”[89] An offender risks three months to two years of prison and a fine.

Article 307 criminalizes zina, commonly defined as consensual sexual relations between a man and a woman, outside marriage. Under Mauritania’s Penal Code, the crime of zina applies only to an “adult Muslim of either sex” [emphasis added]. While the term adult suggests that the offense only applies to individuals who are 18 and above, Human Rights Watch has documented cases where children were charged with zina. Article 307 specifies that zina can be established by the testimony of four witnesses, or by confession of the defendant. If the defendant is a woman, pregnancy suffices to establish zina.[90] If the defendant is single, they risk a sentence of a hundred lashes, to be carried out publicly, and one year in prison. But if the defendant is married, they may be sentenced to death by stoning (Rajoum).

Article 308 prohibits homosexual conduct between Muslim adults and punishes it with death for males.[91]

Mauritanian authorities do not presently carry out death sentences or corporal punishments provided by Islamic law (Sharia). A de facto moratorium on executions has been in effect since the 1980s.

Restrictive Interpretation and Application of Existing Laws

Four lawyers told Human Rights Watch that judges tend to apply a narrow definition of rape. For adult survivors, “they only look for evidence of physical brutality,” said lawyer Bezeid.

Consent is the factor that distinguishes the offense of rape and zina (sexual relations outside marriage).[92] However the notion of consent is not clearly defined under Mauritanian law. According to lawyer Bezeid, courts find it difficult to apply this distinction, which explains why “judges often fall back on article 306, a catch-all provision that punishes ‘offenses to public decency and Islamic morals,’ to avoid applying article 307 [zina] and article 309 [rape]. The issue is that the law is unclear, both in relation to children and adult victims. [Provisions] only mention the sanction, but don’t provide a definition.”[93] Applying article 306 allows judges to punish extramarital sexual behavior without having to address the question of whether or not the act was consensual—an element that often requires weighing the words of the complainant against those of the defendant.[94]

According to lawyer El Moustapha, when a girl reaches puberty, judges often take the position that she can consent to sex with an adult man.[95]

According to lawyer M’Baye, “virginity tests are automatic in forensic exams performed in rape cases, and rape is usually only recognized when a girl’s hymen broke as a result of the assault.” This is problematic given that the status of the hymen is not a definitive indicator of virginity or sexual assault (see above section on forensic examinations). In the few court cases dealing with sexual assault that Human Rights Watch reviewed, the written judgement did not explicitly refer to what evidence in the case record the judge relied upon to decide whether or not rape had occurred.

Most children interviewed who had taken legal action reported that when identified by the authorities, the perpetrator had been placed in pre-trial detention; some were convicted of rape and sentenced to jail time. Human Rights Watch was unable to access court records and case law to assess the average length of prison terms of convicted rapists.

The UN Office on Drugs and Crime has recommended ensuring that sentencing policies on violence against women should take into consideration, among other factors, holding offenders accountable for their acts and denouncing and deterring violence against women. It recommends that courts should hand down punishments that are commensurate with the severity of the offense and the impact on victims and their family and help to stop violent behavior. In addition, it also calls for states to provide victims with the “right to seek restitution from the offender or compensation from the State,” and that in assessing the victim’s actual damages and costs incurred as a result of the crime, states should consider “assessing physical and mental damage; lost opportunities, including employment, education and social benefits; material and moral damages; measures of rehabilitation, including medical and psychological case, as well as legal and social services.”[96]

According to lawyers Human Rights Watch interviewed, Mauritanian judges seldom seem to go beyond imprisonment. “Compensation is never ordered. There’s no prejudice. For them, [rape] is a crime but they’ve never considered that the damage can be quantified. I’ve never seen a rape case where a [defendant] was sentenced to pay damages to the person who was harmed, I’ve only seen sentences depriving the defendant of liberty,” Bezeid El Mamy said. [97] 

While domestic law offers complainants the ability to claim compensation in the course of a criminal case for the damage they endured (partie civile),[98] none of the survivors we interviewed received monetary or material compensation either from the state or from a convicted perpetrator for the harm they suffered. Human Rights Watch was nonetheless able to review one court decision from 2012 involving a sexual assault perpetrated by a man against a girl where a children’s court convicted the defendant to a two-year prison sentence and granted monetary compensation to be paid by the perpetrator to the family for the psychological damage endured by their child and to cover the costs of care incurred in the aftermath of the assault.[99]

Evidentiary Issues Limiting a Complainant’s Case in Court  

There’s an evidence issue. DNA tests are not available. If a victim of sexual violence accuses someone, she will not be able to prove it in a court. Any [defense] lawyer would advise their client to deny [the facts], which in turn can become evidence against the victim [herself].
— Aichetou Salma El Moustapha, lawyer for the Mauritanian Association for the Health of the Mother and the Child

Although DNA testing cannot solve all evidentiary and consent issues in sexual assault cases, survivors and social workers interviewed criticized its unavailability in Mauritania. In cases where forensic evidence is available, if the survivor knows or can easily identify the alleged perpetrator, DNA testing could provide scientific evidence to support the complainant’s statement.

In addition, the lack of protocol on collection of forensic evidence and its use in court use gives judges broad discretion to interpret or disregard medical records during criminal trials. [100]

Limitations of Legal Assistance and Resort to Alternative Dispute Resolution

Khouloud

 

29-year old Khouloud was born in Mauritania but grew up in Senegal, where she went to school until her last year of primary school. She and her two toddlers live at her sister’s home in Nouakchott.

When she spoke to Human Rights Watch, Khouloud was pregnant with her third child after her former husband had raped her. Her fatigue was tangible. “I’m worried about my children, who are sick sometimes and who I cannot feed, and about my current pregnancy.”

Seven months into her pregnancy, she came to the conclusion that reporting her former husband to the police would lead nowhere. Khouloud and he were married for several years and had two children before he suddenly left the family and filed for divorce. Khouloud and her children soon fell into poverty. Her relationship with her former husband deteriorated and he became abusive:

When I called him to inform him that children were sick or to ask for child support, he told me that he wouldn’t give me anything. One day he came back and told me he wanted to marry me again and I said, “No, you did not take care of us.” When I refused, he raped me.

When he learned that he had gotten me pregnant, he brought two pills [for abortion]. He put one in my mouth, another one in my vagina. […] When I tried to report the incident to police officers, they told me it was none of their business, that it was not part of their job and that I should go speak to NGOs.

Khouloud decided to report the incident to a center providing direct support services to sexual violence survivors in Nouakchott, hopeful that they could help her purchase a paternity test:

They told me that paternity tests are expensive and that they only provide them in Europe. They told me that [my former husband] denied the pregnancy and that it would be in my best interest not to speak about the incident to a judge. Otherwise, they would accuse me of zina and lock me up.[101]

Social workers dissuaded Khouloud from taking legal action against her former husband. Instead, they attempted to mediate the dispute by securing an out-of-court settlement (conciliation) in which her former husband committed to pay her child support monthly.

The center’s lawyer had the capacity to pursue legal action but did not do so in order to protect Khouloud. She believed there was no likelihood of legal action succeeding: “Our lawyer stopped us from pressing charges because Khouloud risked being detained for zina,” explained Amadou Sy, social worker for the center of the Mauritanian Association for the Health of the Mother and the Child who oversaw Khouloud’s settlement.

In 2015, Mauritania adopted a law institutionalizing “judicial aid,” for indigent complainants and defendants in both civil and criminal matters. [102] In theory, eligible parties may receive financial assistance to cover all costs associated with one ongoing case before a court of first degree or on appeal, including lawyers’ fees and translation fees when required.[103]

None of the survivors Human Rights Watch interviewed could afford to hire a lawyer and none benefited from the newly adopted judicial aid program despite their apparent eligibility. A small number were able to secure legal representation through the assistance of a center providing direct services to sexual violence survivors. Women’s rights groups interviewed reported bearing most of the costs of legal action of the survivors they support.

Social stigma, the cost of legal action, the unlikelihood of court-ordered compensation, the risk of prosecution for zina, and financial precarity are all factors that push numerous families to favor out-of-court settlements (conciliation or arrangement) over seeking justice in criminal courts. Mint Ely told Human Rights Watch: “Poor people submit to the pressure [of settlement offers]. Given their financial insecurity they favor monetary compensation.”[104]

If the defendant is over 18, the state prosecutor has to oversee the settlement between the parties and a judge must certify the settlement agreement.[105] If the defendant is under 18, the settlement agreement must be in writing, a representative of child protection services must review it, and a judge must approve it.[106]

According to one social worker, “police officers suggest settlements to perpetrators in order to get a cut for themselves, through under-the-table arrangements. They take advantage of any instance when social workers are absent to push for settlements.”[107]
 

Prosecution of Women and Girls for Zina

Zina offenses are applied in a way that discriminates on the basis of sex because pregnancy serves as “evidence” of the offense. Men can deny the act of zina, whereas women are less able to do so if they are found to have miscarried or are pregnant. Moreover, hospital staff members can report women who have miscarried or are pregnant outside of marriage to the police.

The UN Committee on the Elimination of All Forms of Discrimination against Women—the committee responsible for monitoring and reporting on CEDAW (the CEDAW Committee)— and the UN Committee on the Rights of the Child—the committee of experts responsible for monitoring and reporting on the CRC (the CRC Committee)—have both expressed concerns about the lack of definition of rape in Mauritanian law, and the criminalization of consensual sexual relations.[108]

Here, the problem is the conflation of rape and zina, and the conflation of other forms of sexual assault and offenses to public decency.
—Zeinabou Taleb Moussa, President of the Mauritanian Association for the Health of the Mother and the Child

Community organizers, activists, social workers, and lawyers told Human Rights Watch that advocacy efforts conducted over the last two decades have reduced, but not eliminated the convictions for zina or offenses to public indecency of girls and women who claim to have been raped or assaulted sexually.

On February 6, 2018, Human Rights Watch met with then Minister of Social Affairs and Family, Maimouna Mint Taghi, who stated that “There was a time when any woman who reported a rape [incident] was incarcerated for zina along with the perpetrator. Today, no civil society organization can pretend that judges requalify rape as zina. All rape cases reported are prosecuted as such.”[109]

By contrast, Human Rights Watch interviewed both girls and women prosecuted, convicted and imprisoned for zina, a number of whom reported being raped. While zina charges apply to both men and women, recent cases we documented signal that the prospect of zina charges can deter women and girls survivors of sexual violence who seek judicial accountability from reporting. [110]

Human Rights Watch interviewed two girls who said they were raped and who were prosecuted for zina. 17-year old Rouhiya reported being gang-raped at the age of 15 and prosecuted for zina after reporting the assault to the police. She spent some time at a juvenile justice center before being transferred to the women’s prison in Nouakchott, despite the requirements that children remain in separate facilities than adult convicts when separate facilities exist to accommodate them.[111] Because of her critical health condition, Rouhiya was provisionally released from the women’s prison within 24 hours. At the time of writing, social workers supporting her were unsure what the next steps in her case would be.

In another case, 16-year old Zeina traveled to Mauritania from Mali at the age of 14 in the hands of sexual traffickers. She said she was repeatedly raped at the age of 15 by a man with whom she had sought refuge after escaping from the traffickers who brought her to Mauritania. Zeina became pregnant, was prosecuted for zina after giving birth and placed under judicial control. She was required to check in weekly at a police station when she spoke to Human Rights Watch.[112]

Lawyers and activists Human Rights Watch interviewed all agreed that currently, girls are less frequently prosecuted for zina than women, although the risk of prosecution is higher for pregnant girls since pregnancy is sufficient evidence under domestic law to establish zina. The fact-finding steps the investigative judge eventually takes depend largely on what precise charges the state prosecutor chooses to bring.

Lawyer Kaber Ould Imejen, who used to represent women detained in Nouakchott for an international NGO called the Noura Foundation, told Human Rights Watch: “If a woman is pregnant and isn’t married, she’ll most certainly be charged with zina, especially if she hasn’t [immediately] reported that she was a victim of sexual violence.”[113]

Lawyer El Moustapha told Human Rights Watch: “For rape cases where the complainant is a minor, when the girl becomes pregnant, she’s convicted for zina because according to the judge’s reasoning, if a girl becomes pregnant, her body is mature—she can conceive a child and is thus, legally speaking, an adult.”[114] In such cases, judges appear to ignore the fact that Mauritanian law defines a child as anyone under the age of 18.[115]

Lawyer Abbad told Human Rights Watch: “[Sexual assault] cases where women are not prosecuted for zina are rare. At the investigative phase, judges usually place the woman in pre-trial detention or occasionally at provisional liberty but under judicial control. Then [sentencing judges] generally order prison sentences from three to six months; the prison sentence is sometimes suspended.”[116]

Lawyers told Human Rights Watch that the lack of a definition in domestic law of the crime of rape and the presence of so-called “moral” crimes in Mauritanian criminal law leaves room for interpretation and a degree of wide discretion to judges at the expense of victims. According to lawyer M’Baye, “[Some] judges don’t render decisions by weighing inculpatory and exculpatory evidence, but rather with the mindset of, ‘If you know the perpetrator, you consented.’”[117]

Judicial Control for Zina

As an alternative to pre-trial detention, which should be imposed only exceptionally, under international human rights law, judges can release defendants while keeping them under judicial control until trial. Judicial control may involve a spectrum of constraints including travel restrictions, mandatory medical treatment, and weekly check-ins with law enforcement officials.[118] When judges order suspended sentences, they can extend restrictive measures imposed under judicial control.

Human Rights Watch spoke to five women and girls who said they had been raped but who were prosecuted for zina after reporting their assault to the police. Those to whom the court granted provisional pre-trial liberty were placed under judicial control and required to check in weekly at a designated police station. Reporting rape in itself is an admission that sexual relations took place, such that even if the complainant withdraws her rape accusation, the state prosecutor can continue to prosecute the complainant for zina.

Detention for Zina

Hissa

 

“I’ve been uncomfortable since my arrival [in prison],” confided Hissa, 26, who was imprisoned for zina in December 2017. She looked drained and disillusioned in her long and dark melahfa–traditional robe—through which one could make out the fact that she was eight months pregnant. She spoke to Human Rights Watch sitting on the floor across from sewing machines in the activities room of Nouakchott’s women’s prison. 

Before she was put behind bars, Hissa lived in Nouakchott and earned money styling women’s hair and crafting melahfas. She described how she knew her perpetrator:

 “He was a friend, we used to hang out, he would pick me up from high school. […] We asked for my grand-mother’s permission to get married, but it was not possible.”

One night before the start of the Muslim holy month of Ramadan in May 2017, he drove Hissa to a place she did not know and raped her: “It happened more than once,” she said. Afraid of her family’s reaction, Hissa did not speak about the incident to her relatives for months but realized later that she was pregnant. In December 2017, Hissa was about seven months pregnant and told her family about the rape. Her older brother immediately took her to the police to report the assault and to a hospital where a doctor confirmed that she was pregnant.

Soon after she reported the incident, a judge placed the alleged perpetrator in custody for several days. “At the police station, both my family and his were present. He was looking for an [out-of-court] settlement. At that moment, I discovered that he already had a wife, and I refused to settle.”

The alleged perpetrator denied all charges brought against him and claimed that Hissa consented to their sexual relation. The state prosecutor decided to prosecute them both for zina and to place them in pre-trial detention.

“I don’t know why I’m here, or for how long. I have regrets. Even though my relatives call me, it’s hard for me to speak to my own family,” she told Human Rights Watch.

A week after her interview, Hissa gave birth inside the prison facility. She took care of her newborn in the prison for almost two months before a judge decided to grant her and the alleged perpetrator provisional pre-trial liberty in April 2018.

In 2010, Mauritania opened the first Center for Social Rehabilitation of Children in Conflict with the Law (Centre de Réinsertion Sociale des Enfants en Conflit avec la Loi, CARSEC).[119] At CARSEC, convicted children attend classes, vocational training, and recreational activities as an alternative to detention.[120] The international NGO Terre des Hommes-Italy has been supporting the center since 2012 and estimates that from August 2015 through April 2018, 201 children aged 13 through 18 (included) stayed at the center.[121] The average length of stay was 5.25 months.[122] Five girls resided at the center from 2015 through 2018, two of them charged with zina (one of whom Human Rights Watch interviewed), one charged with infanticide, one with theft, and one with drug and alcohol consumption. For the same time period, boy residents had been charged with rape, assault and theft, homicide, drug and alcohol consumption, and vagrancy. A similar center with a much smaller accommodation capacity opened in the northern city of Nouadhibou in November 2016. From its opening to July 2018, 54 children stayed at the center, including three girls, none of whom had been charged with zina.[123]

On February 1, 2018, a Human Rights Watch delegation visited the women’s prison in Nouakchott. The prison director, Hamidou Cissokho, said that at the time, 22 women were detained, 9 of them prosecuted for or convicted of zina. Human Rights Watch interviewed three of them. The inmates included 17 Mauritanians, three Senegalese, and two Moroccans. The Noura Foundation, an international NGO providing legal, psycho-social support to women in detention and women transitioning out of prison estimated that from January 19 through December 29, 2017, 64 women and girls were detained in the women’s prison in Nouakchott, 26 of them prosecuted for or convicted of zina. Human Rights Watch did not have access to data about Mauritania’s other prison holding women, in Nouadhibou.

Human Rights Watch observed that the facility in Nouakchott contained no separate space for girls nor special accommodations for pregnant women and that the guards were exclusively men.

Two of the three women interviewed had a lawyer representing them. Announcements from NGOs offering to assist women with legal representation were displayed on the wall of the activity room of the prison. All the detainees interviewed were aware that they faced zina charges. Human Rights Watch was not able to determine whether they had all experienced sexual violence.

Article 309 of the Penal Code imposes 100 lashes and one year of prison on any Muslim adult who commits zina and death by stoning on any married or divorced Muslim adult who commits zina. Flogging and death by stoning are no longer applied in practice and when imposed on a defendant, may be converted into a prison sentence if the defendant successfully challenges the decision before the High Council of Fatwa and Pleas for Clemency (Haut Conseil de la Fatwa et des Recours Gracieux) created in 2012.[124] According to lawyers Human Rights Watch spoke to, the commutation requires the intervention of Muslim legal scholars to find that the sentence conversion that the defendant is seeking would be compatible with Sharia jurisprudence.[125]

Until formal commutation, women cannot estimate their expected time in detention. Human Rights Watch spoke to Aissata, 21, who had been serving time in prison for over a year for committing zina, with no definite release date at the time of her interview.

Aissata

 

“I want to get out of here, quickly!” Aissata told Human Rights Watch while sitting on the floor of the women’s prison in Nouakchott. At the time of her interview, 21-year-old Aissata had been detained for one year and two months.

A social worker who visits Aissata at the prison said: “Aissata arrived [here] around December 2016. She was sentenced to death by stoning for zina and infanticide. Because Mauritania does not apply the punishment of stoning, Aissata was being held in prison with no fixed release date. When to free her is in the hands of the ulema (Muslim clerics).”

A mother of two, Aissata was detained after losing her third child. In 2016, she gave birth in a public hospital in Nouakchott and returned home the same day. Overnight, the newborn died of unknown causes, she said. The next day, Aissata returned to the hospital to seek assistance and has not since been allowed to return home. “They came to get me at the hospital and took me to the police station. I stayed at the police station for eight days after the child’s death,” she said.  

As the criminal investigation progressed, the police realized that the deceased child was born out of wedlock. The state prosecutor filed both infanticide and zina charges against her.

A lower court judge ultimately found Aissata innocent in the death of her newborn but guilty of zina.

According to her current lawyer:

In the police report, Aissata admitted that she committed zina. A lower court sentenced her to death by stoning. On appeal, a judge held that Aissata should be released until her execution. The prosecutor’s office wrote to the President’s office to request the opinion of the mufti [Mauritania’s chief Islamic jurist]—we have been waiting for an official response for five months. Some judges still sentence defendants to stoning although it is no longer carried out in Mauritania.

The social worker who supports Aissata, who is affiliated with the Mauritanian Association for the Health of the Mother and the Child supporting women detained in Nouakchott, confirmed that this a common occurrence for zina convicts.[126]

Separated from her children and family who visit her occasionally, Aissata’s frustration was tangible: “Here in prison, life is complicated. Sometimes it can be pleasant but when my fellow inmates leave, I get depressed. I used to cry a lot.” 

At the time of writing, Aissata was awaiting Muslim legal scholars to rule on her case.

 

III. Lack of Funding for Support Centers Run by Civil Society Organizations

Civil society organizations, particularly national women’s rights groups, play a leading role in supporting sexual violence survivors both financially and logistically throughout their recovery and legal action.

 In Nouakchott, the government does not run any safe space or emergency shelter for survivors to seek refuge. All centers providing direct services to sexual violence survivors Human Rights Watch identified and visited in the capital were run by civil society groups whose financial and logistical means are limited, and the state either did not provide them with funding or only offered limited project-based grants.

Some centers had medical supplies that enabled them to perform basic physical examinations on site. None of the centers had the capacity to accommodate survivors overnight. In emergency scenarios, NGO leaders such as Mint Ely sometimes end up hosting survivors in their own homes. According to representatives of Médicos del Mundo, hospitalization can also be a strategy to protect the survivor from having to return to an unsafe setting.[127]

Support center for women and girl survivors of gender-based violence run by the Association of Women Heads of Family, Nouakchott, Mauritania, January 29, 2018. 

© 2018 Candy Ofime/Human Rights Watch

Because most women’s rights NGOs rely mainly on project-based funding, primarily from international donors, they are not equipped to offer services on an ongoing basis. Centers supporting sexual violence survivors rely on volunteer staff and do not have the means to ensure the physical security of individuals they support. Social workers and activists supporting sexual violence survivors expressed a fear of reprisals against survivors and the staff supporting them.

Some women and girls who complete prison terms for “morality offenses” face difficulty in securing alternate accommodation if they are unable to return in security to their families or homes. The state does not provide transitional support for women leaving prisons. Human Rights Watch interviewed at least one survivor who had no choice but to return to her abusive home because of the lack of transitional accommodation options. The Noura Foundation, in Nouakchott, provides transitional support services to female ex-prisoners but urges the state to make such services more widely available.[128]

 

IV. Draft Gender-Based Violence Law:
An Opportunity for Change?

On March 3, 2016, the Mauritanian government approved a draft law on gender-based violence (projet de loi cadre relatif aux violences basées sur le genre) that aims to “strengthen national measures to fight violence against women.”[129] The draft law was approved by Mauritania’s Senate in 2016 (an institution that has been dissolved since) but later rejected by the National Assembly and was awaiting a second vote by the same chamber at the time of writing. [130] Human Rights Watch met with Hafsa Kane, an active member of the Network of Mauritanian Women Parliamentarians, which has been advocating in favor of the draft law’s adoption and has hosted several town hall-style meetings with both civil society representatives and religious leaders. According to Kane, “one of the issues [we ran against] was the use of the term ‘gender.’ […] In the word gender, [many MPs who voted against the project] saw questions related to homosexuality (in a country where it is proscribed by law). Drafters of the law used the word partner instead of spouse, people can’t relate to this kind of wording. They see this law as copied from abroad.”[131]

At the time of writing, Human Rights Watch had reviewed several drafts of the law, but it was not clear which provisions would be voted on by the National Assembly. If adopted, the draft approved on March 3, 2016 by the executive branch would create new avenues for legal recourse and state-sponsored support services to survivors of gender-based violence, including sexual assault. It provides definitions and sentences for rape and sexual harassment, creates specific sections in criminal courts of first degree to hear sexual violence cases, allows complainants to consolidate criminal and civil court proceedings, and authorizes civil society organizations to bring cases on behalf of survivors.

The draft law also allows judges to issue protection orders (restraining orders against alleged perpetrators), exhorts judges to review forensic evidence to rule on sexual violence cases, allows for the introduction of DNA evidence, compels the government to collect data nationally on incidents of sexual violence, and exhorts the government to create shelters with short and long-term accommodation options, operated either by the state or by civil society organizations to whom the State will grant a formal permit.  

However, the draft law still falls short of international human rights standards that Mauritania has committed to uphold. It also falls short of the recommended elements for legislation on violence against women set forth in the 2012 UN Women Handbook for Legislation on Violence against Women and the 2017 Guidelines on Combatting Sexual Violence and its Consequences in Africa, which apply to all member states of the African Union.[132]

For instance, the law does not repeal provisions in the Penal Code which criminalize consensual sexual relations. While the draft law defines rape to include oral and anal penetration, it does not account for rape perpetrated with the use of an object and does not explicitly include marital rape. It does not criminalize other forms of sexual assault and attempted rape. The draft still includes provision of punishments such as death by stoning or flogging, which amount to cruel, inhuman, and degrading treatment.[133] The draft law also fails to define key terms that it refers to such as “gender-based violence,” “consent,” and “inhumane practices.” Defining these terms is necessary to make the law’s provisions actionable. 

The draft excludes several other forms of gender-based violence from its scope, such as female genital mutilation, and early, child and forced marriages, and does not specify how it will interact with other existing laws such as the General Code of Children’s Protection or the Penal Code.

While the draft law provides for the creation of special courts and police forces, it fails to provide for mandatory, periodic, and institutionalized training of all law enforcement and judicial officials, or for health professionals, on gender-based violence, gender-responsiveness, and on Mauritania’s obligations under international law. Further, it does not include provisions for funding the measures in the law.

 

V. Mauritania’s Obligation Under International Law

Mauritanian law combines principles and procedural rules of civil law and Islamic law (Sharia), following rules of interpretation of the Maliki school of jurisprudence.  Mauritania’s 1991 Constitution, last amended in August 2017[134] guarantees a number of fundamental rights and freedoms and underlines the country’s attachment to “principles of democracy” as defined by “international conventions to which Mauritania” has subscribed.[135] Article 1 provides that all citizens are equal before the law, and article 13 guarantees due process and fair trial rights and recognizes both the “honor and private life of the citizen” and “the inviolability of the human person.”[136]

Sexual violence violates several core protected international human rights such as the right to life, security of the person, freedom from torture or other ill-treatment, and the highest attainable standard of physical and mental health.

Mauritania is party to two main treaties specifically on women’s rights: the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW)[137] and the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (the Maputo Protocol).[138] It acceded to the Maputo Protocol without reservations.

Mauritania still retains a broad reservation to the CEDAW where it deems its provisions contrary to Islamic law (Sharia) and Mauritania’s Constitution. [139] In July 2014, Mauritania partially withdrew its reservation to confine it to article 13(a) providing for equal right of men and women to family benefits, and article 16 exhorting states to eliminate all forms of discrimination against women in all matters relating to marriage and family relations, disregarding the recommendations of the CEDAW Committee to withdraw it fully.[140]

Mauritania is also party to numerous UN and African[141] human rights treaties, including the International Covenant on Civil and Political Rights (ICCPR)[142], the International Covenant on Economic, Social and Cultural Rights (ICESCR),[143] the Convention against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment (CAT) and its optional protocol, [144] the Convention on the Rights of the Child (CRC) and its optional protocol on the sale of children, child prostitution and child pornography,[145] the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families[146] and the Convention on the Rights of Persons with Disabilities.[147]

Mauritania has also ratified the African Charter on Human and People’s Rights (ACHPR),[148] the African Charter on the Rights and Welfare of the Child (ACRWC).[149]

Both UN and African treaties that Mauritania has ratified affirm the rights articulated above, recognizing that women and girls have the right to live free from violence.

During Mauritania’s last Universal Periodic Review under the auspices of the UN Human Rights Council in November 2015, over 20 percent of the recommendations the state received related to its women’s rights record, six of them urging the State to better respond to the prevalence of sexual violence nationally, which Mauritania accepted it would work towards implementing.[150]

Nondiscrimination Principle and Freedom from Sexual Violence

Mauritania is obligated to prevent and condemn all forms of discrimination, including on the basis of sex.[151] International bodies have established that gender-based violence against women, or “violence that is directed against a woman because she is a woman or that affects women disproportionately,” constitutes a form of discrimination. Article 2(e) of CEDAW compels states to “take all appropriate measures to eliminate discrimination against women by any person, organization or enterprise.” The CEDAW Committee has emphasized that states have due diligence obligations with regard to acts and omissions of non-state actors. [152]

CEDAW obliges states to ensure that women enjoy the same fundamental freedoms and rights as men, including the rights to life and physical and mental health, and to guarantee their “full development and advancement.”[153]

Mauritania is also required under CEDAW and the Maputo Protocol to “combat all forms of discrimination against women through appropriate legislative, institutional and other measures.”[154] Article 3(4) of the Maputo Protocol, in line with other international human rights standards, provides that states must “implement appropriate measures to ensure the protection of every woman’s right to respect for her dignity and protection of women from all forms of violence, particularly sexual and verbal violence.”[155] CEDAW specifically requires Mauritania to formulate “legal norms, including at the constitutional level, and the design of public policies, programmes, institutional frameworks and monitoring mechanisms aimed at eliminating all forms of gender-based violence against women, whether perpetrated by State or non-State actors.”[156] In 2014, the CEDAW Committee called upon Mauritania to “establish a legal reform process aimed at amending or repealing legislation [discriminating against women], including the discriminatory provisions of its penal, personal status and nationality codes.”[157]

Mauritania must protect the autonomy, bodily integrity, and freedom from violence of all persons, particularly those of children[158] and women.[159] Article 4(1) of the Maputo Protocol provides that “every woman shall be entitled to respect for her life and the integrity and security of her person. All forms of exploitation, cruel, inhuman or degrading punishment and treatment shall be prohibited.”[160] The CEDAW Committee has made clear that “Women’s right to a life free from gender-based violence is indivisible from and interdependent on other human rights, including the rights to life, health, liberty and security of the person, equality and equal protection within the family, freedom from torture, cruel, inhumane or degrading treatment, and freedom of expression, movement, participation, assembly and association.”[161]

Harmful Cultural Practices and Prevention Measures

Under the Maputo Protocol, CEDAW, ACRWC, CRC, and the joint general recommendation of the CEDAW Committee and the CRC Committee, Mauritania has the obligation to address “social and cultural patterns of conduct of women and men […] with a view to achieving the elimination of harmful cultural and traditional practices,”[162] affecting children’s health and development[163] and creating prejudices against young girls and women.[164]

Article 21 of the ACRWC explicitly prohibits “customs and practices prejudicial to the health or life of the child” including the different forms of female genital mutilation (FGM) and the practice of child marriage.[165]

The ACHPR Guidelines call on states to undertake awareness raising campaigns, particularly focusing on “preventing the consequences of sexual violence” and “combat[ting] the perception that such actions represent an offence to the honour of a person, their family or community.”[166]

Coordination of Services and Data Collection

The CEDAW Committee and the CRC Committee have both expressed concerns about the absence of a mechanism to collect information on the incidence of violence against women and children and recommended that Mauritania undertake a comprehensive study to document nationally cases of sexual exploitation and abuse.[167]

The  ACHPR’s Guidelines on Combatting Sexual Violence and its Consequences in Africa (ACHPR Guidelines), a key standard-setting tool adopted by the Commission in May 2017, also require state parties to collect disaggregated data on sexual violence prevalence, to inform public policy.[168] The CEDAW Committee has emphasized that states must “[e]stablish a system to regularly collect, analyse and publish statistical data on the number of complaints about all forms of gender-based violence against women (…) disaggregated by type of violence, relationship between the victim/survivor and the perpetrator, and in relation to intersecting forms of discrimination against women and other relevant sociodemographic characteristics, including the age of the victim/survivor.”[169]

To that end, the UN Office on Drugs and Crimes 2014 Handbook on Effective Prosecution Responses to Violence Against Women and Girls (2014 UNODC Handbook) require that “prosecution agencies have a duty to collect statistical data as well as to share this data with others. The criminal administration data being generated by the prosecution agency should be disaggregated by sex and age, as well as other factors such as ethnicity.”[170]

The ACHPR Guidelines also call for states parties to “ensure that there is good coordination and cooperation between the different stakeholders involved in protecting and supporting the victims of sexual violence, including between State services, civil society organisations […], international organisations, and all relevant partners.”[171] As a result, Mauritania cannot exclusively rely on the activities offered by civil society organizations, but has to take a pro-active role in “fostering synergies between stakeholders.”[172]

Likewise, the CEDAW committee has called on states parties to “develop and evaluate all legislation, policies and programmes in consultation with civil society organizations,” and called on them to “Set up a mechanism or body, or mandate an existing mechanism or body, to coordinate, monitor and assess regularly the national, regional and local implementation and effectiveness of the measures, including those recommended in this document [the General recommendation 35] as well as other relevant regional and international standards and guidelines, to prevent and eliminate all forms of gender-based violence against women.”[173]

Right to Privacy and Bodily Autonomy

Criminalizing consensual sexual relations between adults (zina offenses, as outlined in the report) is contrary to a variety of human rights protected by international human rights law, including the rights to nondiscrimination, physical autonomy, physical and mental health, privacy, liberty, and security of the person.

Zina offenses discriminate on the basis of sex because pregnancy can serve as “evidence” of the offense (see above, section on prosecution for zina).

The CEDAW Committee has called for repealing legislation that criminalizes adultery or any other criminal provisions that affects women disproportionally including those resulting in the discriminatory application of the death penalty to women.[174]

The Human Rights Committee—the committee responsible for monitoring and reporting on the ICCPR—also considers that under article 9 of the ICCPR, any person arrested or detained on a criminal charge shall be brought before a judge, able to review the legality and necessity of their detention, within 48 hours.[175]

Further, subjecting girls to pre-trial detention and imprisonment with women for sexual activity violates the principles that the “best interest of the child” should govern the state’s actions toward children, and that children should only be detained as a last resort, separated from adults and for the shortest appropriate period of time.[176] Deprivation of liberty has a negative effect on children’s capacity to realize other fundamental rights, including the rights to education, health, and family unity.[177]

Right to Health, Medical Care and Forensic Examinations 

Under article 12 of the ICESCR, Mauritania has the obligation to recognize everyone’s “right […] to the enjoyment of the highest attainable standard of physical and mental health,” including sexual and reproductive health.[178]

The ACHPR Guidelines call on states to train medical professionals to appropriately respond to incidents of sexual violence[179] and requires that survivors have access to “high-quality test kits for HIV and all other STIs […] at no cost.[180] The CEDAW Committee emphasize that states must ensure “access to financial assistance, gratis or low-cost, high-quality legal aid, medical, psychosocial and counselling services (…)” and that “Health-care services should be responsive to trauma and include timely and comprehensive mental, sexual and reproductive health services, contraception and post-exposure prophylaxis against HIV.”[181]

Further, Article 14 (2)(c) of the Maputo Protocol provides that states must, at a minimum, “protect the reproductive rights of women by authorising medical abortion in cases of sexual assault, rape, incest, and where the continued pregnancy endangers the mental and physical health of the mother or the life of the mother or the foetus.”[182]

The CEDAW Committee has characterized the forced continuation of pregnancy, criminalization of abortion, denial or delay of safe abortion and post-abortion care, as forms of gender-based violence that, depending on the circumstances, may amount to torture or cruel, inhuman or degrading treatment.[183] It also calls for repealing provisions that criminalize abortion and provision of “timely and comprehensive mental, sexual, reproductive health services.”[184] The CRC Committee has also urged States to “decriminalize abortion to ensure that girls have access to safe abortion and post-abortion services, review legislation with a view to guaranteeing the best interests of pregnant adolescents and ensure that their views are always heard and respected in abortion-related decisions.”[185]

The ACHPR Guidelines call on states to “ensure that forensic and legal services apply international standards in gathering, using, preserving and archiving evidence related to acts of sexual violence” and to “take the necessary measures to extend training in evidence-gathering and enable certain types of medical personnel, such as nurses and midwives” to perform such tests taking into account the lack of medical personnel in certain areas.[186]

The 2014 UNODC Handbook also provides that “prosecutors, to the extent possible, should ensure that the collection of medical and forensic evidence is done in a timely way [ideally 72 hours], free of charge and not done in a manner that causes secondary victimization to the victim. However, prosecutors should not rely on such evidence to move forward with the prosecution.”[187]

Reporting and Duties of Police, Prosecutors, and Investigative Judges

The UN Office on Drugs and Crime 2010 Handbook on Effective Police Responses to Violence Against Women (2010 UNODC Handbook) recommends that in cases of sexual violence, police officers must take steps “to respect the victim, her privacy ,[her confidentiality], and the trauma she has undergone, while minimizing the intrusion into her life.”[188]  It provides that, “Ideally, police stations have private, quiet areas where victim interviews can be conducted.”[189] It also provides that “Officers need to be aware that they are there to help, not to judge, and that the woman should be treated at all times without prejudice or discrimination.”[190]

In cases involving children, the 2010 UNODC Handbook provide that “Investigators are encouraged always to use simple language, taking into consideration the age, apparent maturity and intellectual development of the child in front of them, and to check if the child really understands every word they use.”[191]

The 2014 UNODC Handbook also offers tailored guidelines to prosecution agencies and provides that “prosecutors should treat victims with courtesy, dignity, respect and particular sensitivity to the trauma they have experienced” and “must be able to assist and support traumatized victims and be able to make the appropriate referrals to other service providers.” [192] It makes clear that cases of gender-based violence are no exception: “once the victim reports to the police, the State has the responsibility to investigate the case, prosecute the offence where there is sufficient evidence and ultimately hold the offender accountable by punishing his criminal behaviour.”[193]

In the course of the investigation, the 2014 UNODC Handbook emphasizes that “prosecutors should be ready to object to any evidence related to a victim’s “bad” character (for example, substance abuse) that does not directly relate to the incident being prosecuted” and make clear that “the failure of the victim to consent to an intrusive and lengthy forensic medical examination should not result in the automatic dismissal of the case.”[194]

The 2014 UNODC Handbook further provides that “Prosecutors should be cooperating with the police in cases [of gender-based violence] to ensure that the efforts by police are focused on building a case rather than discrediting the victim.”[195] Moreover, “In sexual violence cases, when reviewing whether all available evidence is available, prosecutors need to determine whether the case centres on the issue of consent [to the relationship under legal scrutiny] versus identity [of the perpetrator].”[196]

The ACHPR Guidelines further provide that States should adequately train personnel from “police, all state security forces, customs agents and intelligence units, firefighters, and personnel deployed in peacekeeping operations; judges, magistrates, court staff” to respond to sexual violence cases.[197] Likewise, the CEDAW Committee has urged states to “Provide mandatory, recurrent and effective capacity-building, education and training for members of the judiciary, lawyers and law enforcement officers, including forensic medical personnel, legislators and health-care professionals, including in the area of sexual and reproductive health.”[198]  The ACHPR Guidelines also require States to “take the necessary measures to ensure that specially trained social workers have permanent offices at police stations and gendarmerie outposts to provide care and guidance to the victims of sexual violence” and encourage states to create specialized investigation and prosecutorial units [emphasis added].[199]

Article 8(e) of the Maputo Protocol also requires that States ensure “that women are represented equally in the judiciary and law enforcement organs,” which includes police stations, national guard contingents, and judicial offices.

Survivors’ Effective Access to Courts and to Right to an Effective Remedy

Under article 14(1) of the ICCPR, Mauritania must assure fair trial guarantees to sexual violence survivors seeking judicial accountability.[200] Article 8 of the Maputo Protocol guarantees men and women’s “effective access to judicial and legal services, including legal aid.”[201]

The CEDAW Committee has called on states parties to “Ensure effective access of victims to courts and tribunals; ensure authorities adequately respond to all cases of gender-based violence against women, including by applying criminal law and as appropriate ex officio prosecution to bring the alleged perpetrators to trial in a fair, impartial, timely and expeditious manner and imposing adequate penalties.” They also called for the fees and court charges not to be imposed on victims/survivors.[202]

Throughout legal proceedings, the ACHPR Guidelines provide that “States must guarantee that any mention of the previous or subsequent sexual behaviour of the victim is inadmissible as evidence taken into account to determine whether sexual violence has taken place or as a mitigating circumstance, including any potential questions about virginity or arguments that the victim has delayed in reporting the violence.”[203]  Likewise, the UN General Assembly resolution on strengthening crime prevention and criminal justice response to violence against women also noted that “the introduction of the complainant’s sexual history in both civil and criminal proceedings should be prohibited where it is unrelated to the case; and no adverse inference should be drawn solely from a delay of any length between the alleged commission of a sexual offence and the reporting thereof.”[204]

The UN Women 2012 Handbook for Legislation on Violence against Women also calls for legislation to prohibit courts from drawing any adverse inference from a delay of any length between the alleged commission of violence and the reporting thereof. It notes that delays in the reporting of violence against women are often interpreted as demonstrating that the complainant is unreliable, however sexual violence survivors often delay in reporting the violation to public authorities due to a number of reasons, including fear of stigmatization, humiliation, not being believed, and retaliation; financial or emotional dependence on the perpetrator; and distrust in, and lack of access to, responsible institutions, resulting from geographically inaccessible courts and lack of specialized criminal justice personnel.[205]

Survivors’ right to an effective remedy is enshrined in several international human rights instruments by which Mauritania must abide.[206] Article 12(1)(d) of the Maputo Protocol explicitly requires states to “provide access to counselling and rehabilitation services to women who suffer abuses and sexual harassment.” The ACHPR General Comment No. 4. on the Right to Redress for Victims of Torture and Other Cruel, Inhuman or Degrading Punishment or Treatment urges states to adopt a “holistic approach to rehabilitation” and “victim-centered approaches to redress.”[207]

Similarly, the CEDAW Committee has urged states to “Provide effective reparations to victims/survivors of gender-based violence against women (…) including monetary compensation, the provision of legal, social and health services, including sexual, reproductive and mental health services for a complete recovery, and satisfaction and guarantees of non-repetition.”[208] It has underlined that “Such reparations should be adequate, promptly attributed, holistic and proportionate to the gravity of the harm suffered.”[209] To that end, the CEDAW Committee requires state to “provide specialized women’s support services, such as gratis helplines operating around the clock and sufficient numbers of safe and adequately equipped crisis, support and referral centres and adequate shelters for women, their children and other family members” and to “Establish specific funds for reparations or include allocations in the budgets of existing funds (…) for reparations to victims of gender-based violence against women.”[210]

The ACHPR Guidelines, in line with the CEDAW Committee General Recommendation No. 35, warn against the common use of alternative dispute resolution methods, requiring “States to take measures to prohibit the use of alternative methods of conflict resolution, such as mediation or conciliation, in dealing with cases involving sexual violence before and during civil and criminal proceedings, when those methods do not respect the rights of victims, especially women and girls.”[211]

 

Acknowledgements

This report was researched and written by Candy Ofime, Leonard H. Sandler fellow in

the Middle East and North Africa division at Human Rights Watch. Amna Guellali,

senior Tunisia and Algeria researcher in the Middle East and North Africa division, assisted with the research in Nouakchott. The report was edited by Eric Goldstein, deputy director of the Middle East and North Africa division, Clive Baldwin, senior legal adviser, and Tom Porteous, deputy program director. Specialist reviews were provided by Rothna Begum, researcher on the Middle East and North Africa in the Women’s Rights division, Bill Van Esveld, researcher on the Middle East and North Africa in the Children’s Rights division, and Diederik Lohman, director of the Health and Human Rights division. An intern in the Middle East and North Africa division, Rawan Abushahla, provided research support.

Production assistance was provided by an associate in the Middle East and North Africa division, Fitzroy Hepkins, administrative manager, Jose Martinez, senior administrative coordinator, and Ivana Vasic, graphic designer.

The president of Mauritania’s National Human Rights Commission, Irabiha Abdel Wedoud, provided guidance and facilitated our communication with relevant ministries. Maimouna Mint Taghi, then Minister of Social Affairs and Family, met with the research team and discussed our preliminary findings with us.

Many Mauritanian and international nongovernmental organizations, activists, lawyers, social workers, and health professionals working in the fields of women’s rights and sexual violence, diplomats and foreign experts shared their insights or provided their assistance. In particular, Human Rights Watch would like to thank Aminetou Mint Ely and the staff of the Association of Women Heads of Family for connecting the research team with survivors and facilitating numerous visits of support centers providing direct services to women and girls both in Nouakchott and Rosso, Zeinabou Taleb Moussa and the staff of  the Mauritanian Association for the Health of the Mother and Child for connecting us with survivors under 18 and facilitating our visit to the women’s prison in Nouakchott, the Mauritanian Association for the Health and the Development of Women and Children with Disabilities, the Committee of Solidarity for Victims of Human Rights Violations in Mauritania, and the Noura Foundation for connecting the research team with survivors.

The United Nations Population Fund’s Mauritania country office, the Network of Mauritanian Women Parliamentarians, Mauritanian lawyers Fatimata M’Baye, Ahmed Ould Bezeid El Mamy, and Jemal Abbad shared their expertise on women’s rights, sexual violence, and domestic law and made themselves available for follow-ups.

Amparo Fernández del Río, Médicos del Mundo Mauritania’s country office coordinator and Marie-Charlotte Bisson, Terre des Hommes-Lausanne’s head of delegation in Mauritania, both provided helpful comments on the draft.

Above all, we would like to thank the survivors of sexual violence and their family members, whose resilience and courage we respect and admire, who shared their difficult and often traumatic experiences with us in hopes that their stories would help prompt reforms to help others.

 

Glossary of Acronyms and Terminology

Acronyms

ACHPR

African Commission on Human and Peoples’ Rights

ACRWC

African Convention on the Rights and Welfare of the Child

CEDAW

Convention on the Elimination of all Forms of Discrimination against Women

CRC

Convention on the Rights of the Child

FGM

Female genital mutilation

ICCPR

International Covenant on Civil and Political Rights

ICESCR

International Covenant on Economic Social and Cultural Rights

NHRC

National Human Rights Commission

OHCHR

Office of the United Nations High Commissioner for Human Rights

UN

United Nations

UNFPA

United Nations Population Fund

UNICEF

United Nations Children’s Fund

WHO

World Health Organization

Terminology

Child: Person under the age of 18. 

Rape: Any physical invasion of a sexual nature without consent or under coercive circumstances. A “physical invasion” occurs when there is a penetration, however slight, of any part of the body of the victim (or of the perpetrator by the victim) with a sexual organ, or of the anal or genital opening of the victim with any object or any other part of the body.

Sexual assault: Violation of a person’s bodily integrity and sexual autonomy, which includes rape and other non-penetrative forms of sexual assault and can take place in coercive circumstances.

Sexual violence: Any nonconsensual sexual act, threat, or attempt to perform such an act, or compelling someone else to perform such an act on a third person. It is not limited to physical violence and does not necessarily involve physical contact. It includes but is not limited to forced marriage, female genital mutilation, sexual harassment, sexual assault, rape, nonconsensual virginity tests, and human trafficking for sexual exploitation or slavery.[212]

Zina: Consensual sexual relations outside of marriage, criminalized under Mauritanian law.[213]

 

 

[1] To respect the confidentiality of women and girls who shared their stories, all names used to identify survivors throughout the report are pseudonyms.

[2] UN Human Rights Council, Report of the Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance, Mutuma Ruteere, Visit to Mauritania, A/HRC/26/49/Add.1, May 7, 2014, http://www.ohchr.org/Documents/Issues/Trafficking/A.HRC.26.49.Add.1.pdf, para. 5 (accessed June 12, 2008).

[3]Négro-mauritanien” and “Afro-Mauritanian” are misnomers insofar as they generally are understood to exclude Haratines, even though the latter, despite some mixing with Beidans, have the same sub-Saharan origins as the region’s non-Hassaniya-speaking groups.

[4] Office of the United Nations High Commissioner for Human Rights, Status of Ratification, Interactive Dashboard, Mauritania, http://indicators.ohchr.org/ (accessed June 12, 2018).

[5] Law No. 2001-52 creating a Personal Status Code, July 19, 2001.

[6] Law No. 61-112 creating a Nationality Code, June 12, 1961. See also Law No.2010-023 repealing and replacing certain provisions of the Nationality Code, February 11, 2010. See e.g. UN Committee on the Elimination of All Forms of Discrimination Against Women, “Concluding observations on the combined second and third periodic reports of Mauritania,” U.N. Doc. CEDAW/C/MRT/CO/2-3, July 24, 2014, http://undocs.org/CEDAW/C/MRT/CO/2-3, para. 14 (accessed June 10, 2018).

[7] See e.g. Law No. 2007-048 criminalizing slavery and suppressing practices similar to slavery, September 3, 2007; 2012 Constitutional Reform No. 2012-015 recognizing slavery as a crime against humanity; Law No. 2013-011 criminalizing slavery and torture as crimes against humanity, January 23, 2013; Law. No. 031/2015 criminalizing slavery and imposing criminal sentences to people who practice it, September 10, 2015; Law No. 2012-034 promoting women’s access to electoral mandates and elective offices, April 12, 2012; Law No. 2010-021 criminalizing illegal trafficking of migrants, February 10, 2010. See also 2005-2008 National Strategy on the Promotion of Women, 2007 National Strategy against Female Genital Mutilation, 2008 and 2009-2012 National Plans of Action for Rural Women, and 2015 National Gender Strategy (accessed June 10, 2018).

[8] Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa (Maputo Protocol), adopted by the 2nd Ordinary Session of the Assembly of the Union, Maputo, September 13, 2000, CAB/LEG/66.6, entered into force November 25, 2005, Mauritania acceded to the treaty on December 14, 2005.

[9] Order No. 2006-029 creating an Organic Law regarding the Promotion of Women’s Access to Electoral Mandates and Positions, August 22, 2006. See also Law 2012-034 promoting women’s access to elective terms and elective positions, April 11, 2012.

[10] Law No. 2017-025 on Reproductive Health, November 15, 2017.

[11] Order No. 2005-15 on the Penal Protection of the Child, December 5, 2005.

[12] United Nations Development Programme (UNDP), Human Development Report 2016 (New York: United Nations Development Programme, 2016), Briefing note for Mauritania, http://hdr.undp.org/reports/global/2005/pdf/HDR05_HDI.pdf (accessed May 17, 2018).

[13] National Office of Statistics, Multiple Indicator Cluster Survey (2015), Key Results, November 2016, https://mics-surveys-prod.s3.amazonaws.com/MICS5/West%20and%20Central%20..., (accessed June 12, 2018), pp. 23, 34.

[14] National Human Rights Commission (NHRC), Thematic Report on Women’s Rights in Mauritania, July 2017, http://www.cndh.mr/images/rapport_thematique_de_la_cndh_sur_les_droits_d... (accessed June 12, 2018), p. 21. 

[15] National Office of Statistics, Multiple Indicator Cluster Survey (2015), Key Results, November 2016, https://mics-surveys-prod.s3.amazonaws.com/MICS5/West%20and%20Central%20..., (accessed June 12, 2018), pp. 23, 33.

[16] Personal Status Code, art. 6, para. 1.

[17] Ibid., art. 6, para. 2.

[18] Ibid., art. 9, para. 2. See also National Human Rights Commission, Annual Report, 2016, http://www.cndh.mr/images/rapport_cndh_2016.pdf (accessed June 12, 2018), p. 35.

[19] General Code of Children’s Protection, art. 17.

[20] Ibid., art. 79 and 80; Law on Reproductive Health, art. 11 and 22.

[21] Order on the Penal Protection of the Child, art. 12. 

[22] NHRC, Annual Report 2016, p. 34. See also NHRC, Report on Women’s Rights 2017, p. 21.

[23] Ibid., p. 35.

[24] UN Human Rights Council, Report of the Special Rapporteur on extreme poverty and human rights on his mission to

Mauritania, A/HRC/35/26/Add.1, March 8, 2017, https://documents-dds-ny.un.org/doc/UNDOC/GEN/G17/053/81/PDF/G1705381.pd...

(accessed June 12, 2017), para. 63. See also NHRC, Annual Report 2016, pp. 38,39 and52; NHRC, Report on Women’s Rights 2017, p. 14.

[25] Human Rights Watch interview with Amparo Fernández del Río, Mauritania country office coordinator, and Dr. Amadou Kane, medical coordinator of the Spanish NGO Médicos del Mundo (MdM), Nouakchott, February 5, 2018. See also: MdM and UNICEF, Diagnosis of care provided to sexual violence survivors in Nouakchott, March 2016, p. 10 and following.

[26] Human Rights Watch interview with Khadijetou Cheikh Ouedrago, gender specialist at the United Nations Population Fund (UNFPA)’s Mauritania country office, Nouakchott, January 23, 2018.

[27] 2017 Shadow Report of the Coalition of Mauritanian Human Rights Organizations in response to the State Party (Mauritania) Report to the Committee on the Elimination of all Forms of Racial Discrimination, p. 14.; 2017 Annual Report, Mauritanian Association for the Health of the Mother and the Child, pp. 5, 15.

[28] Human Rights Watch interview with Khadijetou Cheikh Ouedrago, Nouakchott, January 23, 2018.

[29] Human Rights Watch interview with Mariama, Nouakchott, January 25, 2018.

[30] NHRC, Annual Report 2016, p. 40.

[31] Ibid.

[32] Human Rights Watch interview with lawyer Jemal Abbad, Nouakchott, January 31, 2018.

[33] Human Rights Watch interview with lawyer Ahmed Ould Bezeid El Mamy, Nouakchott, January 25, 2018.

[34] Human Rights Watch email correspondence with Marie-Charlotte Bisson, Terre des Hommes-Lausanne’s head of delegation in Mauritania, July 25, 2018. 

[35] Human Rights Watch interview with lawyer Fatimata M’Baye, Nouakchott, January 24, 2018.

[36] Code of Criminal Procedure, art. 22.

[37] Ibid., art. 57.

[38] Ibid., art. 36.

[39]Ibid., art. 46 and following.

[40] Ibid., art. 138.

[41] Ibid., art. 61 – 67.

[42] Code of Criminal Procedure, art. 177 – 183.

[43] See Order on the Penal Protection of the Child, art. 101.

[44] Human Rights Watch interview with Aminetou Mint Ely, president of the Association of Women Heads of Family, Nouakchott, January 21, 2018; Human Rights Watch interview with Aichetou M’Bareck, director of one of the centers supporting sexual violence survivors operated by the Mauritanian Association for the Health of the Mother and the Child, January 23, 2018. See also MdM 2016 report, p. 14.

[45] Human Rights Watch interview with Aichetou M’Bareck, director of one of the centers supporting sexual violence survivors operated by the Mauritanian Association for the Health of the Mother and the Child, Nouakchott, January 23, 2018.

[46] Human Rights Watch interview with Khouloud, Nouakchott, January 30, 2018.

[47] Human Rights Watch interview with Khadijetou Cheikh Ouedrago, Nouakchott, January 23, 2018.

[48] Human Rights Watch interview with Fatimata, Nouakchott, January 25, 2018.

[49] Code of Criminal Procedure, art. 23.

[50] Human Rights Watch interview with Zahra, Nouakchott, January 26, 2018.

[51] Human Rights Watch interview with a social worker from the Association of Women Heads of Family, Nouakchott, January 26, 2018.

[52] See also MdM report, p. 31.

[53] Human Rights Watch interview with Aziza, Nouakchott, January 25, 2018. See also MdM 2016 report, p. 29.

[54] Human Rights Watch interview with Aichetou M’Bareck, Nouakchott, January 23, 2018. See also MdM 2016 report, p. 33.

[55] Human Rights Watch interview with Amparo Fernández del Río and Dr. Amadou Kane, Nouakchott, February 5, 2018.

[56] Ministry of Health, National Healthcare Map of Mauritania, 2014. 

[57] World Health Organization, Health Workforce Requirements for Universal Health Coverage and the Sustainable Development Goals, Human Resources for Health Observer Series No. 17, October 2016: http://apps.who.int/iris/bitstream/handle/10665/250330/9789241511407-eng... (accessed June 29, 2018).

[58] Human Rights Watch interview with Aminetou Mint Ely, Nouakchott, January 21, 2018.

[59] Human Rights Watch interview with Rouhiya, Nouakchott, January 26, 2018.

[60] Human Rights Watch interview with Amparo Fernández del Río and Dr. Amadou Kane, Nouakchott, February 5, 2018.

[61] MdM 2016 report, p. 36.

[62] Ibid., p. 33. 

[63] World Health Organization, Guidelines for medico-legal care for victims of sexual violence (2003), http://www.who.int/violence_injury_prevention/publications/violence/med_... (accessed July 19, 2018), p. 19, 30. See also: WHO and United Nations Office on Drugs and Crime (UNODC), “Strengthening the medico-legal response to sexual violence,” Toolkit, November 2015, http://www.who.int/reproductivehealth/publications/violence/medico-legal... (accessed July 19, 2018) and WHO, Health care for women subjected to intimate partner violence or sexual violence, A clinical handbook - field testing version, November 2014, http://www.who.int/reproductivehealth/publications/violence/vaw-clinical... (accessed July 19, 2018).

[64] WHO, “Clinical Guidelines on responding to children and adolescent who have been sexually abused,” 2017, http://www.who.int/reproductivehealth/publications/violence/clinical-res..., p. 3.

[65] WHO and United Nations Office on Drugs and Crime (UNODC), “Strengthening the medico-legal response to sexual violence,” Toolkit, November 2015, http://www.who.int/reproductivehealth/publications/violence/medico-legal... (accessed July 19, 2018), p. 30.

[66] WHO 2003 Medico-legal Guidelines, p. 49

[67] Human Rights Watch interview with lawyer Fatimata M’Baye, Nouakchott, January 24, 2018.

[68] Law on Reproductive Health, art. 7.

[69] Ibid., art. 22. For criminal sanctions, see Penal Code, art. 293.

[70] According to the World Health Organization, “unsafe abortion occurs when a pregnancy is terminated either by persons lacking the necessary skills or in an environment that does not conform to minimal medical standards, or both.” See WHO website, Preventing Unsafe Abortions: http://www.who.int/news-room/fact-sheets/detail/preventing-unsafe-abortion (accessed July 19, 2018)

[71] WHO 2003 Medico-legal Guidelines, p. 63

[72] Human Rights Watch Interview with Khouloud, Nouakchott, January 30.

[73] On the high cost of medical services, see MdM 2016 report, p. 35.

[74] Human Rights Watch email correspondence with Amparo Fernández del Río, July 15, 2018.

[75] WHO 2003 Medico-legal Guidelines; WHO and UNODC 2015 Medico-legal Toolkit; WHO 2014 Clinical Handbook; WHO 2017 Clinical Guidelines for children. See above, footnote 64 for full citations.

[76] WHO 2003 Guidelines, pp. 13 and following. 

[77] MdM 2016 report, p. 42.

[78] Penal Code, art. 309.

[79] Ibid., art. 11.

[80] Law on Reproductive Health, art. 21.

[81] Order on the Penal Protection of the Child, art. 1. See also General Code of Children’s Protection, art. 2.

[82] Order on the Penal Protection of the Child, art. 26.

[83] Ibid.

[84] Order on the Penal Protection of the Child, art. 25 and 26. Article 25 defines sexual harassment of child as “the use of orders, threats or coercion by a person abusing the authority derived from her position/function, in order to obtain sexual favors.”

[85] General Code of Children’s Protection , art. 73.

[86] Ibid.

88 Ibid., art. 87.

89 Ibid., art. 135.

 

[89] Penal Code, art. 306.

[90] Penal Code, art. 307.

[91] Penal Code, art. 308. 

[92] Cherif Mohamed Barry, Caselaw book, “Collection of Mauritanian juvenile criminal justice cases,” 2017, Cases of Maata (2011), and Merzough (2015), p. 103, 77.

[93] Human Rights Watch interview with lawyer Ahmed Ould Bezeid El Mamy, Nouakchott, January 25, 2018.

[94] MdM 2016 report, p. 44.

[95] Interview with lawyer Aichetou Salma El Moustapha and the staff of the NGO Mauritanian Association for the Health of the Mother and the Child, Nouakchott, January 24, 2018.

[96] United Nations Office on Drugs and Crimes (UNODC), “Strengthening Crime Prevention and Criminal Justice Responses

to Violence against Women,” April 2014, https://www.unodc.org/documents/justice-and-prison-reform/Strengthening_... (accessed July 19, 2018) pp. 18, 86.

[97] Human Rights Watch interview with lawyer Ahmed Ould Bezeid El Mamy, Nouakchott, January 25, 2018. See also MdM report, p.45.

[98] Code of Criminal Procedure, art. 75 and following.

[99] Case of Chagar (2012), Decision No. 12/2012, Caselaw book, p. 54.

[100] MdM 2016 report, p. 47.

[101] Human Rights Watch interview with Khouloud, Nouakchott, January 30, 2018.

[102] Law No. 2015-030 on Legal Aid, September 10, 2015.  

[103] Ibid., art. 13.

[104] Human Rights Watch interview with Aminetou Mint Ely, Nouakchott, January 21, 2018.

[105] Order No. 2007-36 amending Order No. 83-163 creating a Code of Criminal Procedure, July 8, 1983, art. 41.

[106] See Order on the Penal Protection of the Child, art. 155—157.

[107] Human Rights Watch interview with a social worker for the Association of Women Heads of Family, Nouakchott, January 26, 2018.

[108] UN Committee on the Elimination of Discrimination against Women, Concluding observations on the combined second and third periodic reports of Mauritania, CEDAW/C/MRT/CO/2-3, July 14, 2014, http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?sy... (accessed June 12, 2018), para. 26-(b); UN Committee on the Rights of the Child, “Consideration of of reports submitted by State parties under article 44 of the Convention, Concluding Observations: Mauritania,” CRC/C/MRT/CO/2, June 17, 2009, http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?sy... (accessed May 17, 2018), para 79 

[109] Human Rights Watch interview with then-Minister of Social Affairs and Family, Maimouna Mint Taghi, Nouakchott, February 6, 2018.

[110] See e.g. Khouloud’s case below. The police refused to take her complaint, and the center supporting sexual violence survivors that she consulted declined to support her legal action, advising her instead to opt for an out-of-court conciliation to avoid the risk of prosecution for zina.

[111] Human Rights Watch interview with Rouhiya, Nouakchott, January 26, 2018.

[112] Human Rights Watch interview with a social worker supporting Zeina, Nouakchott, January 25, 2018.

[113] Human Rights Watch interview with lawyer Kaber Ould Imejen, Nouakchott, February 6, 2018.

[114] Human Rights Watch interview with lawyer Aichetou Salma El Moustapha, Nouakchott, January 24, 2018.

[115] Order on the Penal Protection of the Child, art. 1, See also: General Code of Children’s Protection, art. 2.

[116] Human Rights Watch interview with lawyer Jemal Abbad, Nouakchott, January 31, 2018.

[117] Human Rights Watch interview with lawyer Fatimata M’Baye, Nouakchott, January 24, 2018.

[118] Penal Code, art. 124. See also Human Rights Committee, General comment No. 35, para. 37.

[119] See “Centre de réinsertion des enfants en conflit avec la loi, d’El Mina L’ONG « Terre des hommes » au chevet des jeunes détenus,” May 25, 2012, https://www.noorinfo.com/Centre-de-reinsertion-des-enfants-en-conflit-av... (accessed June 12, 2018).

[120] UN Human Rights Council, Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment on his mission to Mauritania, A/HRC/34/54/Add.1, December 13, 2016, https://documents-dds-ny.un.org/doc/UNDOC/GEN/G16/432/86/PDF/G1643286.pd... (accessed June 19, 2018), para. 69. 

[121] Human Rights Watch interview with Stefano Perosino, head of Terre des Hommes-Italy’s Mauritania country office, Nouakchott, April 24, 2018.

[122] Pluri-annual Statistics of the Center for Social Rehabilitation of Children in Conflict with the Law in Nouakchott provided byTerre des Hommes-Italy, April 2018.

[123] Pluri-annual Statistics of the CARSEC in Nouadhibou provided by the NGO Terre des Hommes-Italy, June 2018.

[124] See Communiqué of the Council of ministers, Mauritanian National Information Agency, May 24, 2012: http://fr.ami.mr/Depeche-17796.html. See also: Commentary, Case of Mlle. Zena (2010), Caselaw book, p. 101.  

[125] Human Rights Watch interview with lawyer Kaber Ould Imejen, Nouakchott, February 6, 2018, and Human Rights Watch phone interview with lawyer Fatimata M’Baye, June 18, 2018.

[126] Human Rights Watch discussion with a social worker from the Mauritanian Association for the Health of the Mother and the Child, Nouakchott, February 2, 2018.

[127] MdM 2016 report, pp. 28, 40.

[128] Human Rights Watch electronic correspondence with Lordienne Njouka, administrative and technical advisor at the Noura Foundation, July 24, 2018.

[129] Communiqué of the Council of ministers, Mauritanian National Information Agency, March 3, 2016, http://fr.ami.mr/Depeche-34948.html (accessed May 31, 2018).

[130]Les sénateurs ratifient le projet de loi cadre relatif aux violences basées sur le genre,” Mauritanian National Information Agency, December 22, 2016, http://fr.ami.mr/Depeche-38893.html (accessed July 19, 2018).

[131] Human Rights Watch interview with members of Network of Mauritanian Women Parliamentarians (Réseau des Femmes Parlementaires Mauritaniennes), Nouakchott, January 28, 2018.

[132] UN Women, “Handbook on Legislation on Violence against Women,” 2012, http://www2.unwomen.org/~/media/headquarters/attachments/sections/librar... (accessed July 19, 2018).

[133] UN Human Rights Committee, General Comment No. 20, Article 7 (Prohibition of torture, or other
cruel, inhuman or degrading treatment or punishment), 1992 (accessed July 19, 2018),

para. 5. 

[134] Mauritanie : nette victoire du « oui » au référendum constitutionnel,” Jeune Afrique, August 7, 2017,  http://www.jeuneafrique.com/464117/politique/mauritanie-nette-victoire-p... (accessed June 12, 2018); “Référendum en Mauritanie: le «oui» l’emporte, un taux de participation de 53,75%,” Radio France International, August 7, 2017, http://www.rfi.fr/afrique/20170807-referendum-mauritanie-le-oui-emporte-... (accessed June 12, 2018); “Les Mauritaniens approuvent la réforme de leur Constitution,” Le Monde, August 7, 2017 : https://www.lemonde.fr/afrique/article/2017/08/07/les-mauritaniens-appro... (accessed June 12, 2018); and “Sénat supprimé en Mauritanie,” VOA Afrique, August 16, 2017, https://www.voaafrique.com/a/senat-supprime-en-mauritanie/3987741.html (accessed June 12, 2018).

[135] Constitution of Mauritania, Preamble, para. 2.

[136] Ibid.

[137] Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), adopted December 18, 1979, G.A. res. 34/180, 34 U.N. GAOR Supp. (No. 46) at 193, U.N. Doc. A/34/46, entered into force September 3, 1981, Mauritania acceded to the treaty on May 10, 2001.

[138] Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa (Maputo Protocol), adopted by the 2nd Ordinary Session of the Assembly of the Union, Maputo, September 13, 2000, CAB/LEG/66.6, entered into force November 25, 2005, Mauritania acceded to the treaty on December 14, 2005.

[139] UN OHCHR, Status of Ratification, Interactive Dashboard, Mauritania, http://indicators.ohchr.org/ (accessed June 12, 2018).

“Having seen and examined the United Nations Convention on the Elimination of All Forms of Discrimination against Women, adopted by the United Nations General Assembly on 18 December 1979, have approved and do approve it in each and every one of its parts which are not contrary to Islamic Sharia and are in accordance with our Constitution.”

[140] CEDAW Committee, 2014 Concluding Observations on Mauritania, para. 9.

[141] For a full list of Mauritania’s regional treaty ratifications and accessions see ACHPR’s website: http://www.achpr.org/states/mauritania/ratifications/ (accessed June 12, 2018). 

[142] International Covenant on Civil and Political Rights (ICCPR), adopted December 16, 1966, G.A. Res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force March 23, 1976, Mauritania acceded to the treaty on November 17, 2004.

[143] International Covenant on Economic, Social and Cultural Rights (ICESCR), adopted December 16, 1966, G.A. Res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 49, U.N. Doc. A/6316 (1966), 993 U.N.T.S. 3, entered into force January 3, 1976., Mauritania acceded to the treaty on November 17, 2004.

[144] Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Convention against Torture), adopted December 10, 1984, G.A. res. 39/46, annex, 39 U.N. GAOR Supp. (No. 51) at 197, U.N. Doc. A/39/51 (1984), entered into force June 26, 1987, Mauritania acceded to the treaty on November 17, 2004 and Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT), adopted December 18, 2002, G.A. res. A/RES/57/199, [reprinted in 42 I.L.M. 26 (2003)], entered into force June 22, 2006, Mauritania acceded to the treaty on October 3, 2012.

[145] Convention on the Rights of the Child (CRC), adopted November 20, 1989, G.A. Res. 44/25, annex, 44 U.N. GAOR Supp. (No. 49) at 167, U.N. Doc. A/44/49 (1989), entered into force September 2, 1990, Mauritania acceded to the treaty on May 16, 1991 and Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography, adopted May 25, 2000, G.A. Res. 54/263, Annex II, 54 U.N. GAOR Supp. (No. 49) at 6, U.N. Doc. A/54/49, Vol. III (2000), entered into force January 18, 2002, Mauritania acceded to the treaty on April 23, 2007.

[146] International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (Migrant Workers Convention), adopted December 18, 1990, G.A. Res. 45/158, annex, 45 U.N. GAOR Supp. (No. 49A) at 262, U.N. Doc. A/45/49 (1990), entered into force July 1, 2003, Mauritania acceded to the treaty on January 22, 2007.

[147] Convention on the Rights of Persons with Disabilities, adopted December 13, 2006, G.A. Res. 60/232, […], U.N. Doc. A/RES/61/106, entered into force May 3, 2008, Mauritania acceded to the treaty on April 13, 2012. For a full list of Mauritania’s UN treaty ratifications and accessions, see UN Office of the Human Commissioner for Human Rights’ (OHCHR) website: http://tbinternet.ohchr.org/_layouts/TreatyBodyExternal/Treaty.aspx?Coun... (accessed June 12, 2018).

[148] African [Banjul] Charter on Human and Peoples' Rights (Banjul Charter), adopted June 27, 1981, OAU Doc. CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982), entered into force October 21, 1986, ratified by Mauritania on June 14, 1986.

[149] African Charter on the Rights and Welfare of the Child (ACRWC), OAU Doc. CAB/LEG/24.9/49 (1990), entered into force November 29, 1999, Mauritania acceded to the treaty on December 14, 2005.

[150] See UPR-info statistics and database, Mauritania: https://www.upr-info.org/database/statistics/index_sur.php?fk_sur=109&cy... (accessed June 12, 2018).

[151] CAT, art. 2; CEDAW, art. 2; Maputo Protocol, art. 3 (4), 4 (a-d, f) and 8. See also ACHPR Guidelines, art. 2 and 3.  

[152] UN Committee on the Elimination of Discrimination against Women, General Recommendation No. 19, Violence against Women (1992), paras. 6 – 9. CEDAW Committee, General Recommendation No. 35, Gender-based violence against women, Updating General Recommendation No. 19, U.N. Doc. CEDAW/C/GC/35 (2017), para. 1, 20 – 26.

[153] CEDAW, art. 3.

[154] Maputo Protocol, art. 2 and CEDAW art. 2.

[155] Maputo Protocol, art. 3(4), 22(b), and 23(b).

[156] CEDAW Committee, General Recommendation No. 35, para. 26.

[157] CEDAW Committee, 2014 Concluding Observations on Mauritania, para. 15. 

[158] CRC, art. 19 and ACRWC, art. 16.

[159] CEDAW Committee, General Recommendation No. 35.  See also: Maputo Protocol, art. 4.

[160] Maputo Protocol, art. 4(1).

[161] CEDAW Committee, General Recommendation No. 35, para. 15.

[162] Maputo Protocol, art. 2(2).

[163] ACRWC, art. 21; CRC, art. 24(3).

[164] Maputo Protocol, art. 2(2); CEDAW, art. 5. See generally, CEDAW Committee, General Recommendation No. 31, U.N. Doc. CEDAW/C/GC/31-CRC/C/GC/1 (2014)

[165] See also: Maputo Protocol, art. 5, 6, 12(1) and 17.

[166] ACHPR Guidelines, para. 11(3).

[167] Ibid., CEDAW Committee, 2014 Concluding Observations on Mauritania, para. 26(c); CRC Committee, 2009 Concluding Observations on Mauritania, para. 80(c).

[168] Ibid., para. 76.

[169] CEDAW Committee, General Recommendation 35, para. 34(b) and following.

[170] UNODC Handbook on Effective Prosecution Responses to Violence Against Women and Girls, Criminal Justice Handbook Series, 2014, http://www.unodc.org/documents/justice-and-prison-reform/Handbook_on_eff... (accessed July 2, 2018), p. 171.

[171] ACHPR Guidelines, para. 36. 

[172] Ibid. 

[173] CEDAW Committee General Recommendation No. 35, paras. 48, 52.

[174] CEDAW General Recommendation 35, para. 31(a).

[175] UN Human Rights Committee, General Comment No. 35, Article 9 (Liberty and security of person), CCPR/C/GC/35, paras. 32, 33.

[176] CRC, art. 3, 16, 37(b) and 37(c). See e.g. Libya: A Threat to Society? Arbitrary Detention of Women and Girls for “Social Rehabilitation, February 27, 2006.

[177] CRC, art. 37(c). See also: UN Rules for the Protection of Juveniles Deprived of their Liberty , G.A. Res. 45/113 (1990), art. 38 and 49 (calling for detention centers to integrate children’s education and medical rehabilitation into the local community); c.f. In The Freezer: Abusive Conditions for Women and Children in US Immigration Holding Cells, February 28, 2018.

[178] ICESCR, art. 12 in conjunction with UN International Committee on Economic, Social and Cultural Rights, General Comment No. 22, Right to sexual and reproductive health (ICESCR, art. 12), U.N. Doc. E/C.12/GC/22 (2016), para 1. See also CRC, art. 24 in conjunction with UN Committee on the Rights of the Child, General Comment, Implementation of the rights of the child during adolescence, U.N. Doc. CRC/C/GC/20 (2016), para. 60.

[179] ACHPR Guidelines, paras. 14.1 – 15.

[180] Ibid., para. 33. 

[181] CEDAW Committee, General Recommendation No. 35, para. 31(iii).

[182] Maputo Protocol, art. 12(2)(c).

[183] CEDAW Committee, General Recommendation No. 35, para. 27.

[184] CEDAW Committee, General Recommendation No. 35, paras 31(a), 40(c).  

[185] CRC Committee, General Comment No. 20, para. 60.

[186] CEDAW Committee, General Recommendation No. 35, para 40.4. See generally: World Health Organization Guidelines for the medico-legal care of victims of SV (2003).

[187] 2014 UNODC Handbook, p. 102.

[188] UNODC Handbook on Effective police responses to violence against women, Criminal Justice Handbook Series (2010), https://www.unodc.org/documents/justice-and-prison-reform/Handbook_on_Ef... (accessed July 2, 2018), p. 55.

[189] 2010 UNODC Handbook, p. 59.

[190] Ibid.

[191] 2010 UNODC Handbook, p. 63.

[192] 2014 UNODC, Handbook, pp. 42, 50.

[193] 2014 UNODC Handbook, p. 47

[194] 2014 UNODC Handbook, pp. 44, 109.

[195] 2014 UNODC Handbook, p. 72

[196] 2014 UNODC Handbook, p. 76.

[197] Ibid., para. 14.1 – 15.

[198] CEDAW Committee, General Recommendation No. 35, para. 30(e).

[199] Ibid., paras 23, 40.2. See also: CEDAW Committee, General Recommendation No. 35, para. 30(e). 

[200] ICCPR, art. 14; Maputo Protocol, art. 25. See also ACHPR, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003; ACHPR, Resolution on the Right to a Remedy and Reparation for Women and Girls Victims of Sexual Violence adopted during the Commission’s 42nd Ordinary Session held in Brazzaville, Republic of Congo, from 15 - 28 November 2007; UN General Assembly, Resolution on the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, U.N. Doc. A/RES/60/147 (2006).

[201] Maputo Protocol, art. 8.

[202] CEDAW Committee General Recommendation No. 35, para. 44. See generally: CEDAW Committee, General Recommendation No. 33, Women’s Access to Justice, UN Doc. CEDAW/C/GC/33 (2015).

[203] ACHPR Guidelines, para. 40.5(b)(iii).

[204] UN General Assembly, Resolution A/RES/65/228, Strengthening crime prevention and criminal justice response to violence against women, annex, “Updated Model Strategies and Practical Measures on the Elimination of Violence against Women in the Field of Crime Prevention and Criminal Justice,” 2011, http://www.un.org/en/ga/search/view_doc.asp?symbol=A/RES/65/228 (accessed July 30, 2018), para. 15(e).

[205] UN Women, “Handbook on Legislation on Violence against Women,” 2012, para.  3.9.6.

[206] Universal Declaration of Human Rights (UDHR), adopted December 10, 1948, G.A. Res. 217A(III), U.N. Doc. A/810 at 71 (1948), art. 8; ICCPR, art. 2; CRC, art. 39. 

[207] ACHPR, General Comment No. 4 on the African Charter on Human and Peoples’ Rights: The Right to Redress for Victims of Torture and Other Cruel, Inhuman or Degrading Punishment or Treatment (Article 5) adopted during the Commission’s

21st Extra-Ordinary Session held from 23 February to 4 March 2017 in Banjul, The Gambia. See also: CEDAW Committee, General Recommendation No. 33.

[208] CEDAW Committee, General Recommendation No. 35, para. 33(a). See also: CEDAW Committee, General Recommendation No. 28, Core Obligations of States Parties under Article 2 of the Convention on the Elimination of All Forms of Discrimination against Women, U.N. Doc. CEDAW/C/GC/28 (2010); CEDAW Committee, General Recommendation No. 33, U.N. Doc. CEDAW/C/GC/33 (2015).

[209] CEDAW Committee, General Recommendation No. 35, para. 33(a).

[210] Ibid, paras. 31, 33(b).

[211] ACHPR Guidelines, para. 9.4. See also CEDAW Committee, General Recommendation No. 35, para. 32(b).

[212] African Commission on Human and Peoples’ Rights, Guidelines on Combating Sexual Violence and its Consequences in Africa (ACHPR Guidelines) adopted during the Commission’s 60th Ordinary Session held in Niamey, Niger, from 8 to 22 May, 2017, http://www.achpr.org/files/instruments/combating-sexual-violence/achpr_e..., art. 3.1 (accessed July 30, 2018).

[213] Penal Code, art. 307.

Posted: January 1, 1970, 12:00 am

Video

Aminetou: Activist

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Support and Justice - Aminetou Mint Ely

More than two decades of activism helping Mauritania’s rape survivors have not dulled Aminetou Mint Ely’s fire.

Always dressed in the brightly colored melahfas, traditional clothes that some Mauritanian women wear, Mint Ely strikes an imposing figure as she attends the court cases of the women she is helping, visits her organization’s centers scattered all over the country, and speaks to her network of social workers.

Meeting her, it seems almost as if she carries the stories of the women and girls she has helped with her, in the determination behind her eyes, in the lines on her face, and in her frustration that change hasn’t come quicker to Mauritania.

Her organization, the Association of Women Heads of Family, offers financial help for medical support, mental health counseling, and legal aid. It helps rape survivors re-integrate into society, find work, and rebuild their lives.

Coincidentally, the headquarters for her group sits across the road from the guest house Ofime stayed in during her first trip to Mauritania.

“She came to breakfast with me,” Ofime said. “Her passion and expertise were striking, she was very inspiring to me.”

The group can’t offer a place to stay for women and girls trying to flee violence and rape, but that doesn’t stop Mint Ely, who regularly has women and girls staying with her for a night or two when they have nowhere else to go.

“Her staff trusts her, and that trust radiates among the survivors with whom they are working.”

Never one to sit in her office, Mint Ely braves the poor roads and Saharan heat to travel around the country, checking in with her network of contacts and speaking to people in rural communities, which are also affected by these issues but sometimes forgotten.

“[Many of] the victims are from the most disadvantaged families, the poorest, most marginalized communities, including survivors of slavery or its consequences,” she told Ofime. Her group teaches literacy classes and tries to help women out of poverty.

Mauritania was the last country in the world to legally outlaw slavery, abolishing it only in 1981 and making it a crime in 2007. 

Mint Ely is also working to help pass a law on gender-based violence, which would give women and girls some level of protection, although zina would still be seen as a crime if the government refuses to amend the draft law currently before Parliament.

“When someone commits rape, they must answer for their act,” Mint Ely said.

 

Video

Amy: Artist

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Art and Expression - Amy Sow

One day, Mint Ely went to an exhibition by a local artist, stood in front of the canvases, and was overwhelmed by the power of the paintings.

The artist was Amy Sow, an Afro-Mauritanian who owns and manages an art gallery in Nouakchott, Mauritania’s capital.

The exhibition tells the stories of victims of gender-based violence. Visitors walk into a dark room. Larger-than-life portraits of women who have been raped or assaulted hang in the darkness, above details of their attack. Visitors are given a hand-held light, and to see anything they must literally shine the light on the survivors, illuminating their pain.

Beyond the darkness where the portraits hang, the gallery itself is light, bright, and made up of recycled wood, tires, and other materials. It is one of the first art galleries to be owned and operated by a Mauritanian woman, and Sow uses her space to support other local artists and to create art with a message.

“She’s very conscious about how she uses her art,” said Ofime, who met with Sow on a baking hot Sunday and interviewed her sitting on repurposed tires in the leafy courtyard outside the gallery. It was then that Sow told Ofime that she herself was a rape survivor.

“It really moved me,” said Ofime. As in many countries, many rape victims walk through life without telling a soul.

Wearing her signature head scarf, Sow described her exhibition as a “woman’s cry out;” a way for women to say no to violence and insist that criminals be tried.

“To me, she is working to break the silence on this issue using an artistic lens,” said Ofime.

 

Video

Dioully: Entrepreneur

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Empowerment and Autonomy - Dioully Oumar Diallo

Ofime headed to a youth center, navigated among some 50 boys yelling as they played soccer on the playground, walked down an alley around several corners, and eventually found herself inside a tiny room full of girls ready to fight.

The energy of the room swept over her as she entered.

“Some girls were coming in, taking off their traditional outfits, and had sports clothes underneath and they were just ready to go,” Ofime said.

The girls, largely between 14 and 18, are being trained in self-defense and self-empowerment. The energy bubbled in the tiny room as the mostly male instructors showed the girls how to break holds and throw attackers onto the mats that covered the floor.

The founder of RIM Self Defense, Dioully Oumar Diallo, arranges for the girls to be picked up from their neighborhoods and safely dropped off again after each class. Ofime first came across Diallo in a YouTube video, where she speaks about her fight against violence against women. In addition to the self-defense classes, Diallo built the TaxiSecure app that allows women and girls to send an emergency signal via their mobile phones when they feel under threat in a taxi – a place many activists identified as dangerous for women and girls to be alone.

It was Diallo’s innovative thinking that made Ofime want to meet her to speak about the future of activism in Mauritania. Diallo wants to give women the skills they need to protect themselves and fight back.

“Young women like her are the future of women’s rights activism in Mauritania,” Ofime said. “They are creating these new empowering spaces and pushing the conversation forward, and they are unapologetic about that.”

For Diallo, the message is simple: “They do not have to be afraid, they have the right to be able to defend themselves, because their body belongs to them,” she said.

 

Video

Amparo: Médecins du Monde

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Medical Care and Counselling - Amparo Fernández del Río

With just one forensic doctor in the entire national public health system, the chances that a woman who is raped will get the proper medical tests and certificate to prove it are slim. And lack of adequate medical records can reduce their likelihood of success in court.

Amparo Fernández del Río is the coordinator of the Mauritania office of the nongovernmental organization Médicos del Mundo, the Spanish affiliate of Médecins du Monde. Fernández del Rio is seeking to break down the plethora of barriers that women meet when trying to get medical care after experiencing sexual violence.

Fernández Del Rio works with local groups to make sure rape survivors get the full spectrum of support they need. But it is the unit her organization created, based in the Mother-Child hospital in Nouakchott, that provides the kind of medical care most needed in the first 24 hours after an attack, from medication, to surgery, to psychological support. The unit provides all of this free of charge.

“We provide care without the obligation of going first to the police,” she told Ofime.

Sometimes, doctors in Mauritania refuse to examine rape survivors unless they have a police referral. This forces many women and girls to report their attack to the police just to get medical care.

There is also a severe lack of professional psychological help available, which Fernández del Rio is working to remedy. In May, a full-time psychologist joined the unit – the only one in Mauritania dedicated to helping women and girls who have been raped.

Fernández Del Rio also found out that rapes were recorded as “accidents on public thoroughfares” the same category used for car crashes, making it impossible to gather any reliable disaggregated data about rape and sexual violence in the country.

“She saw all these systemic issues, and she’s just been tirelessly working with policy makers to fix them one after another,” Ofime said.

Author: Human Rights Watch
Posted: January 1, 1970, 12:00 am