The African Commission’s Missed Opportunity on Conflict-Related Sexual Violence

[Coline Minguet is an FNRS-funded PhD candidate at UCLouvain researching reparations for victims of sexual violence in armed conflicts under international law, with prior experience as a Brussels-based lawyer and academic background in international and European law]

During its 80^th Ordinary Session in 2024, the African Commission on Human and Peoples’ Rights (the “ACHPR”) adopted its Communication No. 700/18—IHRDA & Ors c. DRC (the “Communication”) (made public in April 2025 and only available in French). It was issued following the petition filed in 2018 by the Institute for Human Rights and Development in Africa (the “IHRDA”) and the Association des femmes avocates défenseures des droits humains, against the Democratic Republic of Congo (DRC), on behalf of 1016 identified victims, comprising 837 women and 179 men (para. 1).

In this Communication, the ACHPR found the DRC responsible for serious human rights violations, including sexual violence, committed by soldiers of its armed forces in 2012 and 2013 in the province of North Kivu, in the context of an armed conflict with the March 23 Movement (M23). The Communication represents a meaningful, though limited, step in the ACHPR’s engagement with conflict-related sexual violence (CRSV) and contributes to the broader debate on the right to reparation in international law. Yet, it misses key opportunities to address the specific nature of such violence in its reparation framework.

Since human rights remain applicable during armed conflict (see, for instance, Wall Advisory Opinion, para. 106), the mechanisms established under human rights instruments remain accessible to victims of armed conflict, thereby enabling them to seek redress when such rights are violated. This avenue is particularly significant for victims, given that international humanitarian law (IHL) – specifically designed to regulate armed conflict – does not provide for dedicated enforcement mechanisms. The African human rights system is built upon two main bodies: the ACHPR, established by the 1981 African Charter on Human and Peoples’ Rights (the “Charter”), and the African Court on Human and Peoples’ Rights (the “Court”), created by the 1998 additional protocol to the Charter.

In their submissions, the applicants alleged multiple violations of the rights enshrined in the Charter and the 2003 Protocol to the African Charter on the Rights of Women in Africa (the “Protocol”), including: the prohibition of torture and respect for human dignity (Article 5 of the Charter and Article III.1 of the Protocol); the right to personal security (Article 6 of the Charter and Articles VI(1), VI(2)(a) and (e) of the Protocol); the right to a fair trial (Article 7(1) of the Charter); the right to physical and mental health (Article 16(1) of the Charter and Article XIV(2) of the Protocol); and the State obligation to take effective measures to uphold Charter rights (Article 1 of the Charter). The ACHPR upheld all these claims, except for the alleged violation of Article XIV of the Protocol. This point was notably discussed in a recent post on the EJIL: Talk! blog, which examined the ACHPR’s reasoning regarding its jurisdiction over the Protocol and its innovative interpretation of the right to individual security, notably.

This contribution analyses the following elements: first, the qualification of CRSV and its specificities; second, the right of victims to reparation in international law; and third, the reparation measures that the ACHPR called on the DRC to provide.

The Specific Nature of CRSV Before the ACHPR

Only a few regional human rights instruments explicitly prohibit sexual violence, such as the Protocol (see, for example, Articles III(4) and IV(2)(a)). In most cases, the prohibition of sexual violence is inferred from broader human rights norms protecting human dignity, such as the prohibition of torture. In its Communication, the ACHPR aligns with a well-established trend in international human rights law (see, for example, Aydin v. Turkey, paras. 86–87), by recognizing that acts of rape and sexual violence may constitute acts of torture (paras. 108–117). However, the ACHPR adopts a restrictive definition of torture, requiring the involvement of state agents as perpetrators (paras. 111 and 116), thereby excluding acts committed by private individuals, including non-state armed groups.

In paragraph 115, the ACHPR acknowledges the specific nature of sexual violence, describing it as a form of torture and ill-treatment “because of the specific, traumatic and gender-specific impact of sexual violence on victims, including at individual, family and collective levels” (free translation) (the ACHPR refers here to General Comment No. 4 on the African Charter on Human and Peoples’ Rights on the right to redress for victims of torture). While it is commendable that the ACHPR mentions the specific nature of CRSV, it does not elaborate further in this regard. In fact, this statement appears more of a declaratory statement than a substantive finding from which the ACHPR would draw clear consequences.

Yet, this declaration aligns with and might contribute to a broader trend in international law that aims to recognize the specific characteristics of CRSV (e.g., the Inter-American Court of Human Rights acknowledged the specificities of CRSV in the Case of the Massacres of El Mozote and nearby places v. El Salvador, paras. 164-165; similarly, the International Criminal Court addressed these issues notably in the Ntaganda Judgment, paras. 75, 88, 545 and 806). These specific features include, inter alia, the fact that such violence is committed on a massive scale and as a weapon of war; with the aim of terrorizing and humiliating; that it has a gender component; that it is often silenced due to stigmatization and difficult to prove; and that it has particular consequences for the victims, namely physical, psychological, economic and social. These features create major obstacles to effective reparations.

An illustration of these challenges can be found in the language used by the ACHPR in paragraph 4. The paragraph adopts a formulation that emphasizes the experience of men when describing violations that primarily affect women. It refers to acts of violence committed by soldiers, and then stresses that these acts were particularly violent against people who tried to resist the looting of “their property and the rape of their wives or daughters” (free translation) (without first mentioning such sexual violence among the abuses committed by soldiers). This formulation – though isolated and probably inadvertent – reflects a patriarchal narrative structure in which women are not presented as autonomous victims and right-holders, but rather as extensions of male property and honor. By using the possessive pronoun “their” to describe the women and girls who were victims of CRSV, the Communication implicitly reinforces the idea that the harm suffered by women is significant insofar as it affects the men to whom they are “attached”. This narrative bias is not without consequences: it can perpetuate stereotypes and influence the way reparations are designed and prioritized.

The Right to Reparation Under International Law: A Long-Debated Right

After establishing the violations committed by the DRC, the ACHPR turns to the issue of the right to reparation. The existence of an individual right to reparation (and its prerequisite, the right of access to justice) under general international law has long been debated. While certain instruments, notably those relating to human rights, explicitly provide for reparation mechanisms – such as Article XXV of the Protocol, which requires States to provide appropriate remedies to women whose rights have been violated – these mechanisms remain specific and treaty-based.

The recognition of a general right to reparation for individuals under customary international law remains controversial. The main argument against its crystallization into customary international law lies in the absence of opinio juris – even where state practice exists – that is, the lack of conviction among States that granting reparations to individuals constitutes a legal obligation rather than a gracious gesture. As a result, the implementation of reparations depends on the existence of specific legal frameworks or mechanisms (to name but one example, the International Criminal Court’s reparations regime).

A full analysis of this issue is beyond this contribution’s scope. It is worth noting that there is a discernible trend, both in international and domestic State practice (see, for example, DRC v. Uganda or the program launched in Ukraine for urgent interim reparations), as well as in academic literature, toward recognizing the importance of reparations for individuals as subjects of international law.

Although the Charter does not specifically enshrine a right to reparation, the ACHPR has interpreted Article 7(1)(a) of the Charter – which relates to the right to a fair trial – as encompassing a right to an effective remedy, including reparation, in the case of Zimbabwe Human Rights NGO Forum v. Zimbabwe (para. 213). In addition, Article XXV of the Protocol indicates that the States Parties undertake to “provide for appropriate remedies to any woman whose rights or freedoms, as herein recognized, have been violated”.

After expressly recalling Article XXV (para. 170), the ACHPR further affirms that the right to reparation for victims of human rights violations constitutes a “fundamental principle of international law” and that “it goes without saying that any harm must be remedied, even in the absence of a legal provision” (free translation) (para. 171).

To support its argument, the ACHPR cites the 2005 UN Basic Principles on the Right to a Remedy and Reparation, as well as the landmark judgment of the Permanent Court of International Justice in the Chorzów Factory case, which concerned an inter-State dispute – and reparation – between Germany and Poland. This case has frequently been cited in decisions rendered by human rights bodies in cases involving reparations for individuals (see, for example, Velásquez-Rodríguez v. Honduras, para. 25), although it has often been emphasized that the conclusions drawn from the Chorzów Factory case are not directly relevant to the evolution of the right to reparation for human rights and humanitarian law violations.

The ACHPR’s interpretation of the right to reparation is noteworthy, as it offers an expanded conception of this right beyond treaty-based mechanisms, for victims of human rights violations – including those occurring in armed conflict. Although not legally binding, the Communication contributes to the normative discourse in international law. Through its interpretative authority and moral weight, it may influence legal reasoning, inform state practice, and support the gradual consolidation of a general right to reparation under customary international law. Indeed, the distinction between victims of human rights violations in armed conflict and those of serious breaches of international humanitarian law (which would not fall under the human rights regime) in terms of access to reparation is increasingly difficult to sustain, as it proves hard to justify in practice.

The Reparations Requested by the ACHPR From the DRC

In its Communication, the ACHPR urges the DRC to investigate and prosecute all perpetrators, enforce the Operational Military Court’s judgment (paras. 178-179), and establish a mechanism to identify victims and assess harm for individual compensation (para. 186). It also recommends free and effective medical and psychological care (para. 189), human rights training for military and judicial actors (para. 192), and symbolic measures, including a public apology (para. 196) and a commemorative monument, excluding victims’ names to prevent further stigmatization (para. 199). Regarding the human rights training, the Communication states that the training requested by the applicants “will place particular emphasis on women’s rights and specifically on the protection of women/girls against sexual violence during armed conflicts” (free translation) (para. 190). Although the ACHPR does not explicitly address this point, this measure directly reflects one of the consequences of the specific nature of CRSV, which – as previously noted – is acknowledged in the Communication.

However, the ACHPR considers broader awareness campaigns aimed at combating sexual violence to be unnecessary (paras. 193-194). It asserts that the other measures it recommended, particularly human rights training, would be sufficient to eradicate CRSV. This view overlooks entrenched stigma and patriarchal norms, which perpetuate gender inequality and fuel sexual violence. Combating these requires more than institutional training or symbolic gestures.

It is therefore insufficient to rely solely on training a select group of officials, based on the assumption that they would be the “key actors” in the fight against sexual violence, as key actors also include victims’ families and communities. These are often the very people who, having internalized patriarchal norms, stigmatize and reject victims by blaming them rather than the perpetrators. As long as these deeply rooted beliefs persist, victims will continue to face shame, isolation, and barriers to justice. Combating CRSV requires a broader societal effort, including public education and awareness to challenge the narratives that normalize sexual violence and silence survivors.

Conclusion

In conclusion, while the Communication represents a valuable contribution to the right to reparation for victims of human rights violations and for victims of CRSV, the ACHPR nevertheless missed the opportunity to deepen its impact by failing to elaborate on the specific nature of CRSV and to reflect its implications in the design of reparative measures.