Enhancing States’ Compliance with International Legal Obligations and Victims of SGVB’s Access to Reparations: Setting Legal Precedents for an Effective Remedy under International Law

Description

DOI: https://doi.org/10.5281/zenodo.20504882

Lupwana Jean Jacques Kandala (Department of Public Law, University of Venda, South Africa)

The paper examines the potential implications of state responsibility for breaching international obligations, particularly those related to protecting and ensuring respect for the rights enshrined in international human rights law. It identifies an opportunity to redress victims of sexual and gender-based violence (SGBV) crimes through the principle of state responsibility as an alternative to individual criminal responsibility. Employing a doctrinal research approach and analysing case law alongside international humanitarian and human rights instruments, the
study concludes that the criminalisation of individuals responsible for SGBV is inadequate. The current prevalence of SGBV contrasts with the increasing international recognition that SGBV during peacetime violates fundamental principles of international humanitarian and human rights. It further suggests that the principles of state responsibility are firmly established in international law and should apply equally to cases involving SGBV. More significantly, holding the state responsible for SGBV committed by public and private actors is more effective and
encouraging than individual criminal responsibility, potentially leading to greater compliance with international legal obligations and enhancing victims’ access to reparations. Thus, the paper’s analysis extends beyond merely questioning whether states’ obligations to protect and ensure respect for women’s human rights have been violated and what the consequences are. Rather, it aims to analyse international law sources imposing obligations on states,
the violation of which may entail a duty to provide reparation to victims, including compensation, rehabilitation, and guarantees of non-repetition. This approach aligns with the principles set forth by the International Law Commission on state responsibility for wrongful acts.