(~CH:~)~ ACH PR .. ..' .mm:o African Commission on Human and Peoples' Rights . Human Rights our Collective Responsibility 8. The Complainant recalls that the Commission has confirmed that acts of rape and the failure to prevent and respond to acts of rape constitute a violation? of the prohibition of torture and other ill-treatment and thus a violation of Article 5. She asserts for example that, in the case of Fernandez Ortega v. Mexico'? , the Inter-American Court of Human Rights (IACtHR) found that the rape of a woman in her horne by a soldier constituted an act of torture. 9. On the reference to rape as an act of torture regarding the gravity threshold, the Complainant states that international human rights bodies'! have explicitly recognized that the physical, psychological and emotional pain and suffering caused by an act of rape is so severe that it constitutes torture. o. The Complainant further avers that under international criminal law, rape has been recognized as automatically meeting the threshold of torture as it is a crime of a grave and cruel nature, with a devastating impact on victims. According to the Appeals Chamber of the International Criminal Tribunal in the Kunarac case, it has been recognized that "certain acts establish by themselves the suffering of those who undergo them. Rape is obviously one of these"12. African Commission, Sudan Human Rights Organisation & Centre on Housing Rights and Evictions (COHRE) v. Sudan, Comm. No. 279/03-296/05, para. 157; Malawi African Association et al. v. Mauritania, Comm. No. 54/91, 61/91, 96/93, 98/93,164/97,196/97,210/98, para. 118; see also Institute for Human Rights and Development in Africa (on behalf of Sierra Leonean refugees in Guinea) v. Guinea, Comm. See also UN Human Rights Committee, General Comment No. 28: Equality of Rights between Men and Women (Article 3), CCPR/C/21/Rev.1/ Add.10, 29 March 2000, para. 11 (hereinafter 'Human Rights Committee, General Comment No. 28'). See, for example, Inter-American Commission on Human Rights (IACHR), Raquel Marti de Mejia v. Peru (1996), Case 10.970, Report No. 5/96, Decision of 1 March 1996; European Court of Human Rights (ECtHR), Aydin v. Turkey (1997), Appl. No. 57/1996/676/866,25 September 1997, in particular para. 83 (liThe rape of a detainee by a state agent must be regarded as a particularly serious and odious form of ill-treatment, given the ease with which the aggressor can abuse the victim's vulnerability and frailty. Moreover, rape leaves deep psychological wounds in the victim which do not fade as quickly as other forms of physical and mental violence.) In this case, the ECtHR concludes that even if the only grounds for the complaint had been the act of rape, without the other forms of ill-treatment that the victim had suffered, the ECtHR would still have found that the treatment of the victim (rape) constituted an act of torture, in violation of Article 3 of the European Convention on Human Rights (para. 86) 10 IACtHR, Fernandez Ortega v. Mexico, Series C No. 215, Judgment (Merits, Reparations and Costs) of 30 August 2010, para. 128: "[...] Rape may constitute torture, even if it is based on a single fact and takes place outside of State establishments, such as in the victim's home. This is so because the objective and subjective elements that classify an act as torture refer neither to the accumulation of facts nor to the place where the act is committed, but to the intention, the severity of the suffering, and the purpose of the act, conditions which, in this case, were met. 11 See, in particular, Mejia v. Peru (IACtHR, Raquel Marti de Mejia v. Peru (1996), Case 10.970, Report No. 5/96, Decision of 1 March 1996; ECHR, Aydin v. Turkey (1997), Req. No. 57/1996/676/866,25 September 1997.), V.L. v. Switzerland (UN Committee against Torture, V.L. v. Switzerland, CAT/C/37/D/262/2005, 20 November 2006, para. 8.10.) and Miguel Castro Castro Prison v. Peru (IACtHR, Miguel Castro Castro Prison v. Peru (2006), Series C No. 160, Judgment (Merits, Reparations and Costs), 25 November 2006.) and IACtHR, Fernandez Ortega v. Mexico (2010), Series C No. 215, Judgment (Merits, Reparations and Costs) 30 August 2010, para. 124. /-\-IU~~AN II 12 International Criminal Tribunal for the former Yugoslavia (ICTY), Prosecutor v. Kunarac, IT-96-~~~l,if\tldir{?e(1t of the~peals Chamber, 20 June 2002, paras. 150-151. /'~;'" ",<c. o~ ·~~~--~~~L-~~~·L-~~~~~--------------------------------~Jh.~. < An Organ 01 'h. ..i :i. ~ . '. ft.. _...'~' The African Commission on Human and 'fePple Ri~,h:ts', uJ" 9 Af ncan t{ \ Union ". }: ron- 31 Bijilo Annex Layout, Kombl:1Nort Distficti"-j West coa~V~.9iAn Gam~;r" Phone: (220) 23~ 4361 Fa~~w~ ~ t_: 0 ~ IS 1 059..'0.1.)/1. Email: au-banJul@afnC.dJ~.r~c..tf; https:/ach' . u.ilJ~~~ICp.\~<c. ( It • ,. OIl1I\1E ET -»,'- ....... I;) ,:::,<l.v '?«; :/ o'C.'" .., • ~ Page 11 on 32