Committee on the Elimination of Discrimination against Women discusses Women and Access to Justice

Committee on Elimination of Discrimination 
Against Women

18 February 2013

The Committee on the Elimination of Discrimination against Women this morning held a half-day general discussion on women’s access to justice, in view of receiving inputs and contributions for its General Recommendations on Women and Access to Justice that it would start drafting in 2013.

In her opening remarks, Nicole Ameline, Committee Chairperson, said that this general discussion marked the start of the process of elaborating the General Recommendations on Women and Access to Justice, whose purpose was to provide guidance to States parties on the measures to be adopted to ensure full compliance with their obligations to protect, respect and fulfil women’s human rights to access to justice, particularly in the context of Articles 2 and 15 of the Convention. 

Mona Rishmawi of the Office of the High Commissioner for Human Rights said that there had been considerable progress made in clarifying the scope of the right to access to justice and the obligations rising from the Convention in this regard.  Access to justice remained a persisting problem for minority women and other vulnerable groups, while justice for women victims of sexual violence, particularly during conflict, remained a particular challenge.

Lee Waldorf of United Nations Women said that justice systems around the world provided limited or weak justice for women and the challenges were immense.  The root cause was systemic discrimination against women that permeated every step in the justice process and that systemic failure to deliver justice for women was glaringly obvious in conflict and post-conflict situations. 

Zanofer Ismalebbe, Human Rights Adviser, United Nations Development Programme, said that justice systems were usually not responsive to women and were difficult to access, particularly for women from disadvantaged backgrounds.  Challenges faced by poor and marginalized women were often multiplied when other factors such as race, ethnicity, caste and others were considered. 

Silvia Pimental, Committee Expert and Chair of the Working Group on access to justice, said the importance of the General Recommendations on Access to Justice was evident and was key to give States parties proper guidance on the measures that were necessary to eliminate obstacles often encountered by women in accessing justice in law and practice.

The Committee heard submissions on the issue of legal, procedural and institutional barriers faced by women in accessing justice, hearing from Frances Raday, Vice-Chair of the United Nations Working Group on discrimination against women in law and practice, Sara Hossain, Honorary Director of Bangladesh Legal Aid and Service Trust (BLAST) and Wilder Tayler, Secretary-General of the International Commission of Jurists. 

The Committee also heard from Simone Cusack, Senior Policy and Research Officer, Australian Human Rights Commission, Magdalena Sepulveda Carmona, the Special Rapporteur on extreme poverty and human rights, and Karen Vertido, a petitioner who had successfully brought a complaint under the Optional Protocol to the Convention on the Elimination of Discrimination against Women, who spoke about women’s social, economic and practical challenges in accessing justice. 

Shaheen Sardar Ali, Vice-Chair of the United Nations Working Group on Arbitrary Detention and professor of law at the University of Warwick, spoke about challenges faced by disadvantaged groups of women in accessing justice.

Speaking in the discussion were Norway, in a joint Nordic statement on behalf of Denmark, Finland, Iceland, Norway and Sweden; Argentina, Switzerland, Australia, Sri Lanka, Bahrain, Slovenia, Brazil, the United Nations High Commissioner for Refugees and the International Labour Organization.

The following non-governmental organizations took the floor: International Women’s Rights Action Watch Asia Pacific, Widows for Peace, International Disability Alliance, REDRESS and Strategic Initiative for Women in the Horn of Africa, Amnesty International, Avocats Sans Frontiers, Centre for Reproductive Rights, International Gay and Lesbian Human Rights Commission, on behalf of 43 organizations from Africa, Asia, Europe and Latin America, Global Action to Prevent War and Armed Conflict, Ban Ying, FIAN, Harm Reduction International, and CLADEM.  Lilian Hofmeister, Judge at the Vienna Court also addressed the Committee.

The Committee will next meet in public today, 18 February at 3 p.m. when it will hold an informal public meeting with non-governmental organizations and national human rights institutions with respect to Greece, Angola and the former Yugoslav Republic of Macedonia.

Opening Statements

NICOLE AMELINE, Chairperson of the Committee, said that this general discussion marked the start of the process of elaborating the General Recommendations on Women and Access to Justice, whose purpose was to provide guidance to States parties on the measures to be adopted to ensure full compliance with their obligations to protect, respect and fulfil women’s human rights to access to justice, particularly in the context of Articles 2 and 15 of the Convention.  Today’s consultations were the first step in the process of formulating these General Recommendations and provided an opportunity for the Committee to receive inputs to assist it in its drafting, which would start in the course of 2013.

MONA RISHMAWI, Office of the High Commissioner for Human Rights, said that the Office was developing with United Nations Women the draft Secretary-General guidance note on reparations to victims of sexual violence.  There had been considerable progress made in clarifying the scope of the right to access to justice and the obligations rising from the Convention in this regard.  Through the declaration adopted last year by world leaders on the principle of the rule of law, States had made commitments to overcome some key obstacles in the area of women’s access to justice.  States should provide proper assistance to victims and take measures to minimize inconvenience for the victims, and ensure their safety and that of their families from retaliation in relation to judicial proceedings.  The Office of the High Commissioner for Human Rights welcomed that the envisaged scope of the guidance note and its work on conceptualization on access to justice for women in several countries, such as Afghanistan, the Democratic Republic of the Congo and others had highlighted a number of challenges that should be further considered.  Women’s access to justice within traditional and formal justice systems were often underutilized and contained provisions that impeded women’s rights.  Access to justice remained a persisting problem for minority women and other vulnerable groups, while justice for women victims of sexual violence, particularly during conflict, remained a particular challenge.

LEE WALDORF, United Nations Women, said that justice systems around world provided limited or weak justice for women and the challenges were immense.  The root cause was systemic discrimination against women that permeated every step in the justice process.  In every region of the world, remarkably few women were able to obtain justice and the systemic failure to deliver justice for women was glaringly obvious in conflict and post-conflict situations.  The true answer to this process was the implementation of the provisions of the Convention on the Elimination of Discrimination against Women.  Countries must undertake a comprehensive review of their justice systems and then proceed to the implementation of a comprehensive reform process. 

ZANOFER ISMALEBBE, Human Rights Adviser, United Nations Development Programme, said that justice systems were usually not responsive to women and were difficult to access, particularly for women from disadvantaged backgrounds.  Challenges faced by poor and marginalized women were often multiplied when other factors such as race, ethnicity, caste and others were considered.  In the context of crises, the following issues posed significant challenges: justice for victims of sexual violence, and persistence of norms that undermined women.  The reform must ensure that national justice systems adequately protected women’s rights and women needed to be empowered to adequately request their rights and justice.  The United Nations Development Programme with United Nations Women and the Office of the High Commissioner for Human Rights would be supporting the global programme on Women’s Access to Justice with the hope that it would contribute to the necessary reforms and women’s access to justice on regional and global levels.

SILVIA PIMENTAL, Committee Expert and Chair of the Working Group on Access to Justice of Committee on the Elimination of Discrimination against Women, said that when the idea on elaborating General Recommendations on Access to Justice had been first proposed in 2011, Committee members and all stakeholders had expressed great enthusiasm, as witnessed by the remarkable number of rich written submissions and other inputs received by States parties, United Nations agencies and non-governmental organizations.  During the 30 years of the Committee’s history, access to justice had explicitly referred in Articles 2 and 15 of the Convention and had been a recurrent subject of concern in constructive dialogues with States parties, Concluding Observations, other General Recommendations and decisions on cases submitted under the Optional Protocol.  The importance of the General Recommendations on Access to Justice was evident and was key to give States parties proper guidance on the measures that were necessary to eliminate obstacles often encountered by women in accessing justice in law and practice. 

KEYNOTE SPEAKERS

Legal, procedural and institutional barriers faced by women in accessing justice

FRANCES RADAY, Vice-Chair of the United Nations Working Group on Discrimination against Women in Law and Practice, said that the entire chain of justice must be gender sensitive in order to guarantee rights guaranteed under international instruments, and that the Constitution was the key aspect as it was the source of authority for judicial, legislative and state action and empowered women to claim their rights in all aspects.  The constitutional guarantee of equality for women was a critical component and essential foundation for the realization of women’s rights and an indispensable expression of political will.  When the right of women to equality was guaranteed in the Constitution, it laid the groundwork for challenges to gender inequality in other areas of law, such as the civil code, family law and criminal law.  This empowered women to challenge discriminatory legislation and discriminatory governmental policies in the courts.  Constitutions that had an override and included derogation from the gender equality guarantee for any system of norms which might discriminate against women, violated the equality standards of the Convention on the Elimination of Discrimination against Women.  The criminal law deserved special mention in the chain of justice; it could be used by the State to directly victimize women and might target women by criminalizing behaviours which were not criminalized or punished in the same way when performed by men.

SARA HOSSAIN, Honorary Director of Bangladesh Legal Aid and Service Trust (BLAST), said that plural legal systems were diverse and various and effectively created states of exception to the general laws which applied to certain communities or selected issues.  Traditional justice systems were prevalent in many countries and might play a crucial role in for example resolving conflicts and maintaining order in particular communities.  The operation of a parallel legal system created an apparent conflict between the right to gender equality and to freedom of religion, or to the rights of particular minorities, but they also provided an opportunity for a relative increase in women’s access to certain remedies.  Article 15 of the Convention clearly enshrined States’ obligations to provide equal access to justice to women and Article 5 provided an additional obligation to reform customary norms and traditional practices that discriminated against women.  Opportunities for engagement with parallel legal systems and traditional justice institutions included identification of minimum core of the right to access to justice, empowering women to navigate the justice system, and affirmative action by States to provide legal aid and reform the laws to ensure substantive equality.

WILDER TAYLER, Secretary-General of the International Commission of Jurists, said that although every country was different, the obstacles to women’s access to justice were remarkably similar all over the world.  The most common institutional barrier related to the conduct and approach of justice sector personnel in responding to women reporting rights abuses and pursuing remedies.  Across jurisdictions women were regularly met with dismissive and apathetic approaches, insensitivity, bias and discrimination.  Such conduct of officials was typical for cases of gender violence and the range of other issues predominantly facing women.  Officials often did not have professional guidance as to their own responsibility, about the nature of the abuses concerned and did not know what constituted a gender sensitive and appropriate response.  Institutional resource and capacity constraints compounded the situation, while the problematic rule of evidence in cases of sexual assault remained entrenched.  Avenues to justice could be off limits to certain groups of women due to parallel operation of other, often criminal, laws and procedures; for example, in many jurisdictions access to justice was simply a non-possibility for undocumented migrant women due to fear of arrest and deportation upon contact with the authorities.

Women’s social, economic and practical challenges in accessing justice

SIMONE CUSACK, Senior Policy and Research Officer, Australian Human Rights Commission, said that harmful gender stereotypes and the practice of wrongful gender stereotyping affected women’s ability to obtain justice in diverse and complex ways.  It affected women’s experiences as victims of violations and was often a key factor in the failure of States to recognize the violations of women’s rights.  There was a long history of questioning women’s credibility as witnesses because of gender stereotyping, and this was especially pronounced for some women, such as women with disabilities.  Stereotyping affected the ability of women to participate in the justice system as judges, lawyers, jurors and law enforcement officials, which had significant implications for women’s ability to access justice on a basis of equality with men.  States parties to the Convention must take appropriate steps to address stereotypes that undermined women’s ability to access justice.  It was not enough to guarantee women’s equal access to justice in their laws and policies, but they also must take steps to address barriers that women encountered.  The Committee might explain in the General Recommendations that States must adopt legislation and other measures to prohibit wrongful gender stereotyping in the justice system and other areas of life.

MAGDALENA SEPULVEDA CARMONA, United Nations Special Rapporteur on extreme poverty and human rights, said women living in poverty were disproportionately impacted by obstacles in their access to justice as they did not have alternative means of resolving disputes or resources to fall back on.  At the same time, the impact of unresolved or unfairly resolved disputes of their livelihoods could be devastating for them and their children.  One of the main economic obstacles that hindered women from accessing justice was the cost of legal advice and assistance which were prohibitively expensive for people living in poverty and this was a major problem in both criminal and civil matters.  The inability to afford legal assistance in civil matters such as divorce, child custody or inheritance rights was a serious impediment for women who lacked economic resources and could lead to women falling into poverty, especially in divorce and alimony cases.  The cost of legal advice was not the only barrier for women living in poverty; there were many other costs after the financial barrier associated with engaging justice systems such as court fees, transportation costs, corruption and others.   The General Recommendations should call on States to ensure that access to justice interventions were designed to address gendered imbalances, risks and vulnerabilities, especially on addressing specific gender-based obstacles preventing men and women from accessing justice on equal terms.  They should also ensure that women living in poverty had practical and effective access to competent legal advice and assistance when needed for the protection of their human rights, and also to ensure that legal aid lawyers were independent, adequately trained and remunerated and met the highest standards of the legal profession to ensure that women defended by them would enjoy equality in proceedings.

KAREN VERTIDO, Petitioner who had successfully brought a complaint under the Optional Protocol to the Convention on the Elimination of Discrimination against Women, described her experience in dealing with rape committed by a colleague who had been a man of high social and economic stature, the stigmatisation against her brought about by the widespread interest in the case, the nine years of the trial and having the wounds opened and re-opened, and the loss of economic independence due to loss of work.  The culture of silence was very pervasive in the Philippines and women did not report the crime because doing so aggravated the shame inflicted on them by making it a very public issue.  Poverty was the primary obstacle to justice and Ms. Vertido was able to sustain nine years of litigation thanks to donations from people and the pro bono services of her lawyer.  When the rapist had been acquitted by the court, Ms. Vertido knew there was recourse to justice of Philippine courts.  She had sent the communication to the Committee on the Elimination of Discrimination against Women in November 2007 and received the views in July 2010 which had upheld the contention that her rights had indeed been violated in the courts of the Philippines.

Challenges faced by disadvantaged groups of women in accessing justice

SHAHEEN SARDAR ALI, Vice-Chair of the United Nations Working Group on Arbitrary Detention and professor of law at the University of Warwick, said that crisis and conflict came when governance broke down and when access to justice mechanisms and ethos disappeared.  Justice was a wider issue than simply an arm of the Government, it was a basis on which individuals, communities and Governments survived.  In crisis and post-conflict situation, the collapse of the law resulted in the masculization of the law sphere and the challenge was in stabilizing the public sphere and making it stable and secure for women.

STATEMENTS BY STAKEHOLDERS

Norway, in a joint Nordic statement on behalf of Denmark, Finland, Iceland, Norway and Sweden, said that barriers to access to justice were manifold and included economic reasons, poverty, discrimination, lack of information on one’s rights and processes to claim those rights and remedy, cultural barriers and physical barriers.  The General Recommendations should include the compounded difficulties women faced in access to justice, and special attention should be made to describe specific groups of vulnerable and disadvantaged women, such as poor, disabled or indigenous women.

Argentina said that in order to guarantee the legal protection of women’s access to justice, it was important to expand the concept of gender equality, non-discrimination and equal opportunity which gave different people the same choices and possibilities to make their decisions.  Legal protection meant the elimination of disadvantages that existed in procedures.  Argentina proposed several measures to this effect, including bringing together the case law in this regard, compilation of gender sensitive statistics, holding of gender sensitive workshops and others.

Switzerland said that improvement in access to justice was of crucial importance and welcomed the planned General Recommendations.  The Swiss Parliament had just approved a nation-based study on women’s access to justice and discrimination on various grounds in all spheres of life.  This study should highlight specific obstacles by migrant women, older women, lesbians and other vulnerable women in the exercise of their rights, and should also identify good practices in the context of multiple discriminations.

Australia reiterated the commitment of Australia to equality of women which was underpinned with tangible measures that assisted in women’s access to justice.  It was necessary to recognize the vulnerabilities of women in relation to the justice sector and ensure the availability of appropriate legal aid, together with safety and security for women and support for community-based services for women. 

Sri Lanka said that equality of women and men was enshrined in the Constitution of Sri Lanka and the Constitutional guarantees of non-discrimination were reinforced by other legislation.   Sri Lanka had undertaken significant measures to combat violence against women and had enacted the law on domestic violence, drafted in cooperation with women’s groups, while several practical measures had been undertaken to ensure its implementation. 

Bahrain said that equality between women and men in Bahrain was protected by the Constitution and the Labour Covenant.  A number of laws had been amended to achieve justice and equity for women, including the Labour Act and Housing Act, while the Act on Social Security and Act of Family Affairs had been promulgated.  A number of measures had been taken to increase the access of women to courts and to raise awareness about the new laws protecting women’s rights.

Slovenia said that international law guaranteed equality and access to justice to all and that many States had enshrined those principles in their legislation.  Slovenia called on the few who had not yet done it, to do so.  Equality in access to justice meant that violations of women’s rights were taken as seriously as violations of men’s rights and this was especially important in conflict and post-conflict situations.  Crimes committed in those contexts, particularly rape and sexual violence, must not be swept under the carpet; accountability must be ensured.

Brazil noted that access to justice between women and men was still unequal throughout the world and vulnerable groups were particularly targeted.  Brazil had taken several measures to overcome these challenges and in 2007 had established the mechanism to fight domestic violence, the so-called Maria da Penha Law, the best known law in the country.  Empowerment was key to guarantee access to justice for women, and empowered women were better able to seek justice.

United Nations High Commissioner for Refugees said that dangerous levels of impunity were associated with sexual and gender-based violence, and that international actors had a crucial role to play in increasing access to justice for survivors of sexual and gender-based violence and combating impunity.  Legal and material support needed to be provided to victims wishing to pursue justice.  Gender-sensitive legal and justice institutions should be promoted, as should access of women to justice systems.  

International Labour Organization said that the supervision of the provisions of non-discrimination, equality and equal remuneration often rested with labour inspection services, whose role normally included detecting and addressing violations during inspections visits, reporting such violations and imposing sanctions.  Therefore, the scope of justice and justice systems in the General Recommendations should also include not only courts, including labour tribunals, but also the labour inspectorate and specialized equality and equal pay bodies.

International Women’s Rights Action Watch Asia Pacific highlighted key challenges in access to justice for women, which included the incorporation of the provisions of the Convention on the Elimination of Discrimination against Women in domestic laws and Constitutions.  Further, all barriers and obstacles to all women’s access to justice must be addressed, especially in recognizing the minimum core standards of economic and social rights and clarifying the legal bases and standards governing States’ accountability for the elimination of barriers to access to justice that were imposed by non-state actors.

Widows for Peace raised the issue of the lack of recognition of widows as vulnerable groups; there was little knowledge of their situations, the stigma they faced and the substantive abuse and discrimination they encountered.  The plight of widows was worsened during conflict, which was the context in which widows were least likely to be assisted with return and re-position of their land.  The Committee should recommend that data gaps in relation to situation to widows were filled and that legal aid was provided to widows, particularly in rural areas.

International Disability Alliance, said that women and girls with disabilities experienced different forms of disability and were at a higher risk of violence; access to justice remained out of reach for many of them due to stereotypes.  The Committee should ensure that the rights of women and girls with disability were upheld with others and it should call on States to ensure that they were systematically consulted in decisions on measures on access to justice.

REDRESS and Strategic Initiative for Women in the Horn of Africa, said that crucial barriers to women’s access to justice were the failure to recognize the violations of women’s rights as violations against persons, and difficulties in accessing the courts and system of justice, which meant that many women were constrained to refer to traditional justice systems.  Also, reparation awarded was often insufficient or inappropriate to compensate the women.

Amnesty said that General Recommendations could provide guidance to States in two crucial areas which were not sufficiently explored in the concept note, which were access to justice under Article 5 and access to justice by women offenders.  The Committee should also explore barriers to access to justice arising from laws which were not compliant with the provisions of the Convention, and barriers to access to justice arising from laws punishing same sex conducts, commercial sex work or reproductive health laws.

Avocats Sans Frontiers said that access to justice was key to all other human rights and to combating discrimination against women.  In fragile countries the issue was not about the lack of laws, but the enforcing of the existing protection norms and laws.  The Committee should recommend to all actors in the legal chain to invest more efforts into translating existing norms into enforceable actions.

Centre for Reproductive Rights said that women and girls faced unique obstacles in access to justice and that it was important that the General Recommendations addressed access to justice not only after the violations had occurred.  They should also address causes of harm such as restrictive reproductive laws and State failure to monitor reproductive services.

International Gay and Lesbian Human Rights Commission, speaking on behalf of 43 organizations from Africa, Asia, Europe and Latin America, urged the Committee on the Elimination of Discrimination against Women to include explicit reference to gender identity in the upcoming General Recommendations.  Lesbian, gay, bisexual and transgender persons were subject to multiple discrimination and were unable to rely on State mechanism for redress, because States in numerous instances were complicit in human rights violations. 

Global Action to Prevent War and Armed Conflict asked the Committee to take special note of the recent workshop they had held and that a stable security sector must be created for women to exercise access to justice.  Any discussion on institutional reform should include a discussion on prevention, and the role of technology must be recognized.

Ban Ying said that undocumented migrants in Germany had access to justice but in reality did not enjoy the right for fear of authorities and deportation.  The Committee should encourage States not to denounce undocumented people.  The domestic workers of diplomats were exploited and suffered abuse and violations of their rights, but could not recourse to justice because of diplomatic immunity.  This was not only an issue in Germany, but it was a global human rights violation. 

FIAN said that education was fundamental to overcoming the lack of knowledge about one’s rights, women were often excluded from education.  Structural changes that acknowledged the unique situation of women and human rights defenders supporting them were necessary. 

Harm Reduction International raised the issue of women in contact with the criminal justice system who were those most disadvantaged and their contact with the justice system must be understood in the context of economic and other deprivation.  One in four women in prison were imprisoned for drug-related offences, which were not committed in social and economic vacuum.  Access to justice must mean more than accessing the existing system which was abusive and fundamentally broken. 

CLADEM said that recognition of indigenous peoples and their legal systems and systems of culture was a positive development.  In some countries work was being done in harmonizing legislation between those and formal justice systems.  A clear and specific legal framework was necessary for women’s access to justice and this was not happening in cases of violence against women.  The process of reform of criminal justice systems was ongoing in many countries in the Latin American region, but in many, violence against women was categorized as a minor offence.  

LILIAN HOFMEISTER, Judge at the Vienna Court said that the implementation of international legal instruments was important to effectively improve women’s access to justice.  More than 30 years since the Convention on the Elimination of Discrimination against Women came into force was an opportunity to compare good practices in its implementation.

Closing Remarks

NICOLE AMELINE, Chairperson of the Committee, thanked all the participants and said that today’s discussion had not only provided the Committee with a wealth of information but also with a strong foundation upon which to build its General Recommendations which would contribute to strengthening women’s access to justice around the world.

SILVIA PIMENTAL, Committee Expert and Chair of the Working Group on Access to Justice, summarized some of the highlights of the material provided by the speakers and stressed the points of concern that emerged and that would be important to be taken into account by the General Recommendations.  In spite of differences and particularities of each country, a wide range of obstacles were similar; poverty and gender were among the main obstacles and were overlapping and mutually reinforcing.  The recognition of the minimum core content of economic and social rights as justiciable rights was therefore crucial.  A legal framework that guaranteed women’s right to access to justice was of fundamental importance and States must eliminate discriminatory norms and any other gender-based obstacles that deprived women of their right to equal access to justice.  States must also take active measures to ensure respect for human rights and to prevent harm rather than merely provide remedies after violations had taken place.  It was crucial to implement a holistic approach that included all stakeholders and prioritized the participation of women as rights-holders.  Women often encountered gender based obstacles in access to justice mainly originated by gender stereotypes, the most important of which portrayed women as the pillar of the family as a fundamental unit of society, according to which women must accept all forms of social charges that were limiting their rights and causing their suffering.
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