Source: Sudan Vision
This chapter is from a book “Ending Violence against Women: A Challenge for Development”, the book was written by Francine Pickup with Suzanne Williams and Caroline Sweetman and published by Oxfam GB.
The challenge to scrutinize human rights law from women’s perspectives has finally been taken up by some mainstream international human rights organizations. In a recent report on women, published in the context of its Torture Campaign, Amnesty International notes: ‘Human rights treaties are “living instruments” that evolve and develop over time. Decisions by intergovernmental bodies that monitor states’ compliance with international treaties, as well as national courts, continually refine and develop the interpretation of what constitutes torture. Largely thanks to the efforts of the worldwide women’s movement, there is a wider understanding that torture includes acts of violence by private individuals in certain circumstances.’
Thanks largely to the work of the women’s movement, some prominent mainstream human rights organizations have been compelled to address violence against women in the home and community as torture. Compare the comment by Nigel Rodley, then director of Amnesty International’s Legal Office and now the UN Special Rapporteur on torture, noted above, with the following passage in Amnesty International’s report on the torture of women 13 years later: ‘Amnesty International considers that acts of violence against women in the home and community constitute torture for which the State is accountable when they are of the nature and severity envisaged by the concept of torture in international standards and the State has failed to fulfill its obligation to provide effective protection.’
In 1988, a landmark judgment clearly established state responsibility for human rights abuses, even when committed by private persons unconnected to the State. The case, at the Inter-American Court of Human Rights, dealt with the disappearance and presumed killing of Angel Manfredo Velásquez Rodríguez, a Honduran student, by an unidentified party. The court stated: ‘An illegal act that violates human rights and that is initially not directly imputable to the State, for example, because it is the act of a private person or because the person responsible has not been identified, can lead to international responsibility of the State, not because of the act itself, but because of the lack of due diligence to prevent the violation or to respond to it as required by the Convention.’
Under the American Convention on Human Rights, the State is not responsible for every attack on individuals, but for its failure to fulfill its obligations to ensure people’s rights are enforced. It has a responsibility to put into place a legal and administrative systems that will protect rights and ensure access to remedies, should violations occur. In the judgment of the Velásquez Rodríguez case, the Inter-American Court of Human Rights held that, ‘The State has a legal duty to take reasonable steps to prevent human rights violations and to use the means at its disposal to carry out a serious investigation of violations committed within its jurisdiction, to identify those responsible, to impose the appropriate punishment and to ensure the victim adequate compensation .... This duty to prevent includes all those means of a legal, political, administrative, and cultural nature that promote the protection of human rights and ensure that any violations are considered and treated as illegal acts, which, as such, may lead to the punishment of those responsible and the obligation to indemnify the victims for damages.’
There is a range of inter-governmental organizations such as the
Organization of African Unity (OAU) in Africa, the Organization of American States (OAS) in the Americas, and the Council of Europe (CoE), that operates at regional level, and are active in human rights and democratic development work. In Africa, under the auspices of the African; Commission on Human and People’s Rights, the drafting of a protocol to the African Charter on Human and People’s Rights on women’s rights is well underway. In the Americas, the Inter-American Convention on the Prevention, Punishment, and Eradication of Violence against Women, adopted by the OAS in 1994, was a tremendous achievement. This is the first ever binding human rights instrument whose exclusive focus is violence against women. The treaty binds those states of the OAS region that are parties to it. It states that discrimination against women is one of the fundamental causes of violence, and also includes as a specific right, women’s right to a life free of violence (Article 3). The State is held responsible
for finding the means to eradicate violence (Article 7). Individuals and organizations can take cases to the Inter-American Commission on Human Rights (Article 12). State parties must inform on the methods they have adopted to prevent and eradicate violence and to assist women affected by violence, through the submission of national reports (Article 10).
Recognizing violence against women as discrimination
Violence against women is a serious form of discrimination, and, as such, contravenes the principle of non-discrimination on the basis of sex, which is clearly enshrined in international law. Anti-discrimination provisions are contained in all the major international human rights instruments, including the UDHR(1948), and the ICCPR (1966). According to these
provisions, states must ensure that human rights are enjoyed by everyone without discrimination of any kind. However, in practice, these instruments have not been used in relation to violence against women, failing in this regard to call perpetrators to account for a fundamental violation of a wide range of women’s rights. Violence against women was not originally mentioned explicitly in the 1979 Convention on the Elimination of all Forms of Discrimination against Women (CEDAW, or the Women’s Convention), adopted by the UN General Assembly. However, in a subsequent recommendation – General Recommendation 19, issued in 1992 – the Committee on the Elimination of
Discrimination against Women (the CEDAW Committee) recognized that violence against women is one of the key mechanisms by which women are forced into a subordinate position in relation to men.
General Recommendation 19 incorporates violence against women into the definition of discrimination provided for in the Women’s Convention. It notes that gender-based violence impairs or nullifies the following rights:
a. The right to life;
b. The right not to be subject to torture or to cruel, inhuman, or degrading treatment, or punishment;
c. The right to equal protection in situations of armed conflict;
d. The right to liberty and security of the person;
e. The right to equal protection under the law;
f. The right to equality in the family;
g. The right to the highest attainable standard of physical and mental health;
h. The right to just and favorable conditions of work.