International Legal Obligations with respect to the provision of support services to women victims of violence’ at the Council of Europe Conference on support services for women victims of violence

6 December 2007


It’s a great pleasure for me to be here on the occasion of the Council of Europe’s conference on support services for women victims of violence. The timing of the conference is particularly meaningful as it coincides with the 16 Days of activism to end violence against women.

I have been asked to speak on the international legal obligations with respect to the provision of support services to women victims of violence. In doing so, I would first like to reflect on the particular challenges domestic violence poses for designing strategies for intervention and delivering support services for the survivors of violence, while many ay also apply to violence that takes place outside the home.

The 16 Days of activism is symbolic of the many innovative ways in which women have negotiated with and ruptured patriarchal gender structures. This particular campaign, which is now widely observed in all parts of the world, by linking 25 November - the International Day on the Elimination of Violence against Women and 10 December - Human Rights Day, firmly established that women’s rights are human rights.

Transforming the human rights framework

The campaign grew out of women’s local and international resistance and struggles against violence and evolved into a powerful global movement – mobilizing activism and commitment as well as political and financial support to combat violence against women. Concerted efforts of women globally, resulted in the culmination of a distinct regime for women’s human rights, at international and regional levels, although the reality in all countries is in stark contrast to the aspirations and goals set. Persistence of violence in the domestic sphere with impunity is particularly striking.

Since the 1980s, women’s rights activists have worked with the existing human rights framework to expand the vision of rights to embrace the diverse and specific ways in which women experience violation of their rights. Focus on violence against women was strategic as it helped break the silence around the problem, linked local women’s struggles around the world and opened a most secluded sphere for public scrutiny, thereby demystifying the public/private dichotomy that kept the violation of rights in the private domain off limits to law, policy and state responsibility.



Renewed understanding of state obligation

It is now well-recognized that states have international human rights obligations to take
effective action in response to domestic violence. This duty falls under the more general obligation of states to exercise due diligenceY. Ertürk. (forthcoming). “The Due Diligence Standard: What Does It Entail for Women’s Rights?” in
C. Benninger-Budel (Ed). Due Diligence: State Responsibility to Combat Violence against Women. Leiden: Martinus Nijhoff Publishers and report to the Commission on Human Rights E/CN.4/2006/61. to prevent, protect from, investigate and, in accordance with national legislation, punish acts of violence against women. While much has been accomplished over the past 15 years in this regard, the struggle to combat violence against women, particularly in the domestic sphere, has been an uphill battle. In the fourteen official country visits I have conducted in my capacity as the UN Special Rapporteur, even in those countries where gender equality has been achieved at impressive levels and violence and discrimination against women has been relatively contained in public sphere, domestic violence is persisting.

Why has it been so difficult for anti-violence strategies to penetrate into the private sphere? What accounts for its resistance to change? In answering these questions while one needs to look into the internal dynamics of each society, some general and interrelated factors can be identified.

Difficulties in penetrating the private sphere of life

(i) Public/private dichotomy: Feminists for long have attributed the main obstacle to the protection of women’s rights to the role of the public/private dichotomy in international human rights law, which is conventionally premised on the liberal, minimalist conception of the state. The public/private codification in international law has served to maintain a division between the hierarchical and political public domain governed by law and order and an intimate, non-political private domain which was to be off-limits to state intervention. The private sphere was regarded as the safe haven for the ‘man’ to take refuge from the oppression of public life. Restraining state tyranny emerged as a particularly an important value after the atrocities experienced in the two world wars of the 20th Century. This liberal state tradition, therefore, came to be promoted and upheld as a guard against state intervention in private life.A. A. An-Na’?m, while recognizing the need to protect rights in the private spere, cautions against repudiating the distinction between public/private spheres. According to him, state intervention in private life carries the risk to abuse power to violate rather than protect human rights (‘The Role of ‘Community Discourse’ in Combating ‘Crimes of Honour: Preliminary Assessment and Prospects’, in Honour’: Crimes, Paradigms and Violence against Women, ed. L. Welchman and S. Hossain. London: Zed Books, 2005: 64-77). A counter argument must ,however, be made in that rights standards can enable the state to use its apparatuses to protect citizens against the tyranny of informal intermediary power. Where such political will is lacking the state machinery may ndeed become a tool of tyranny itself, which potentially can transgress all spheres of life. It has, however, been revealed that such a division of spheres clouds the relations of domination and power that governs the domestic arena itself, making the home a risky place for women.

(ii) Patriarchal control: Male supremacy within the private sphere privileges male authority to discipline the members of the household. Domestic violence in particular is a tool of patriarchal control over the youth and over women to discipline and ensure obedience in the house, which also prepares individuals to behave “appropriately” outside of the house, thus creating a convergence between the interests of the public state and the private patriarch. The state / private patriarch relations are not free of tensions and divergence of interests. Autonomous space, although privileging male hegemony, is inherently contradictory as it allows for alternative masculine prerogative, thus providing grounds for multiple forms of dissent and resistance as well as solidarity and collaboration within a household. The ideology of patriarchy is premised on the primacy and the privacy of the family and places strong pressures on women to submit and remain silent. A woman who seeks help outside the family risks being ostracized for betrayal and/or severe punishment.

(iii) Inadequate protective infrastructure: In many societies the protection provided for women experiencing violence is ad hoc and inefficient; therefore, does not give confidence to women to go public with their problems. The inefficiency or the non-existence of a comprehensive system of protection can increase women’s vulnerability to risk of further violence. This is particularly acute in the absence of safe houses for women who dare to seek help. Furthermore, those who provide public support are not necessarily free of patriarchal bias themselves. Therefore, their intervention may in fact be detrimental for women. For example, in a recent case in Turkey, a man who killed his wife because she insulted and pushed him in order to refuse his sexual advance, was given reduced sentence by the higher court which concluded that the women provoked him.

(iv) State politics and policy: Unlike other human rights violations, violence against women is not confined to a particular social group; rather it cuts across all segments of society. Therefore, interfering in domestic sphere carries a degree of risk for the state. In order not to challenge existing balances between different power blocks or display tolerance to diverse interest or cultural groups, policy of non-intervention in violation of rights in the private sphere is often a political choice on the part of the state. By adhering to such a political stand the state in fact allows a parallel normative system to prevail. In some countries local power blocks – such as chiefdoms - are even given legal recognition.
The existence of parallel normative frameworks whether in the form of customary law, local jirgas, decentralized governance or federal state structures can potentially obstruct women’s access to services and justice. The central authorities in Mexico could not effectively intervene in the femicides in Suidad Juarez as these crimes were under local state jurisdiction.

(v) Separate regimes of responsibility: An individual perpetrator of an act of private violence is still not directly responsible under international human rights law, therefore, separate regimes of responsibility for private and public acts are sustained. Mahmood Mamdani ed., Beyond Rights Talk and Culture Talk (New York: St. Martin’s Press, 2000). Furthermore, despite the many achievements that have been recorded, issues of public violence tends to be met with a more immediate and effective response at both the international and national levels, whereas identity politics entrenched in a cultural relativist discourse, or essentializing certain cultures as source of the problem dominates the discussions of private violence, thus contesting the universality of human rights standards. See my report on The Intersections between Culture and Violence against Women (A/HRC/4/34). In many instances, misinterpretations of respect for multiculturalism has allowed for the tolerance of deviations from the rule of law. A German woman judge reprehended a Middle Eastern woman and rejected her case for divorce due to domestic violence on cultural essentialist grounds, arguing that domestic violence is normal in the Middle Eastern culture.

(vi) Lack of consensus on terminology, indicators and reliable reliable data: Our knowledge of the problem is partial at best and often obscured by the gender neutral language used to describe the phenomenon, such as family violence, domestic violence and intimate partner violence. Such ambiguities reflect in the intervention programmes designed, which may deter women from reaching out for help. Therefore, there is an urgent need to develop gender sensitive indicators and measurements techniques to generate reliable data. Establishing violence against women indicators is a human rights obligation, linked to the actual content of human rights jurisprudence and the due diligence principle, See my report on Due Diligence, E/CN.4/2006/61. which calls upon states, among other things, to ensure that interventions designed to combat violence against women are based on accurate empirical data. My next report to the Human Rights Council is devoted to the subject of indicators on violence agaisnt women and on state response to it.

The due diligence obligation

The violence against women agenda has exposed the inconsistencies associated with the private sphere and the patriarchal biases that shape everyday life. On the other hand, applying the due diligence standard to women’s rights has been instrumental in challenging and invalidating the liberal state theory and its ambiguous non-intervention policy. The principle of non-intervention is itself an ideological stand. State has always reserved the right to intervene in private life. This has perhaps been most manifest and durable in the heteronormal model of matrimony as the basis of the family institution. This has meant that a state, by failing to respond to domestic violence, can be held accountable for not fulfilling its obligation to protect and punish in a non-discriminatory way and can be charged as an accomplice to violations perpetuated by private actors. Romany 1994, see note 19 above; Christine Chinkin, ‘A Critique of the Public/Private Dimensions’, European Journal of Int’l Law (1999), Vol. 10, No. 2: 387-395.

The due diligence standard has a long history in international law. More recent application of the standard was taken up in 1988 with the Velásquez Rodríguez v Honduras case concerning the disappearance of Manfredo Velásquez, which by way of abstraction, provided a basis for the development of general guidelines on its requirements. Inter-American Court of Human Rights, Velásquez Rodriguez v Honduras, Judgment of 29 July 1988, Series C: Decisions and Judgments, No. 04. For a discussion of how the due diligence standard evolved see Romany (1994), see note 19 above; and Joanna Bourke-Martignoni in this volume. Human rights bodies such as CEDAW Committee, the Committee on the Elimination of Racial Discrimination (CERD), the Human Rights Committee (HRC) and the various special procedures of the Commission and regional human rights institutions have also elaborated on the requirements of the due diligence standard in relation to specific country situations as well as on a more general level.

In 1992, the Committee on the Elimination of Discrimination against Women (CEDAW Committee) adopted its General Recommendation no. 19 on violence against women in which it specified that:
‘[u]nder general international law and specific human rights covenants, states may also be responsible for private acts if they fail to act with due diligence to prevent violations of rights or to investigate and punish acts of violence, and for providing compensation.’ Committee on the Elimination of Discrimination against Women, General Recommendation no. 19, Violence against Women (eleventh session, 1992), UN Doc. A/47/38, para. 9.

The 1993 Declaration on the Elimination of Violence against Women, which is the main international normative framework on violence against women, urges States in its article 4(c) to “exercise due diligence to prevent, investigate, and, in accordance to national legislation, punish acts of violence against women, whether those acts are perpetrated by the State or by private persons.” This provision was reiterated in paragraph 125 (b) of the 1995 Beijing Platform for Action. At the regional level, article 7(b) of the Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women (1994) (Convention of Belém do Para), requires that States “apply due diligence to prevent, investigate and impose penalties for violence against women”.

In two recent communications under the Optional Protocol to CEDAW, the CEDAW Committee found that Austria was in violation of the Convention for failing to exercise due diligence to adequately protect two victims of domestic violence and prevent their murder, although they had repeatedly complained to the police and asked for protection. The Vienna Intervention Centre against Domestic Violence et al v. Austria, CEDAW/C/39/D/5/2005, 6 August 2007; The Vienna Intervention Centre against Domestic Violence et al v. Austria, CEDAW/C/39/D/6/2005, 1 October 2007. No alternative housing solutions were ever proposed to the two women, and only short term protection orders were issued against their respective husbands. CEDAW thus found violations of a variety of articles of the Convention related to the State’s commitments to pursue a policy of non discrimination and ensure effective protection of women against any discrimination (article 2), to take all necessary measures to advance women’s development and to promote gender equality (article 3 read in conjunction with article 1 and General Recommendation 19).

Other treaty bodies, such as the Human Rights Committee (HRC) which monitors the implementation of the ICCPR have also adopted the due diligence concept, albeit to a smaller extent and not related to violence against women. See General comment No. 31, ‘The Nature of the General Legal Obligation Imposed on States Parties to the Covenant’, adopted 29 March 2004 at para. 8. Other treaty body references are more piecemeal, with CERD for instance mentioning due diligence in passing only. What is clear is that the substantive elements of the concept of due diligence are upheld by all treaty bodies. The standard is also being applied to a range of other human rights issues, such as protecting victims of trafficking Economic and Social Council, Recommended Principles and Guidelines on Human Rights and Human Trafficking, E/2002/68/Add.1. and addressing corporate abuses. Report of the Special Representative of the Secretary-General on the issue of human rights and transnational corporations and other business enterprises, State responsibilities to regulate and adjudicate corporate activities under the United Nations core human rights treaties: an overview of treaty body commentaries, A/HRC/4/35/Add.1.

More importantly perhaps than the explicit use of the standard in existing legal instruments and case law is the fact that its four substantive elements – the obligation to prevent, protect victims from, and offer remedies for human rights abuses, and punish perpetuators whether those acts are committed by a state or a private actor – are undisputedly states obligations. The current challenge is to ensure that all aspects of the state duty to exercise due diligence, are implemented systematically, effectively and without discrimination and as a matter of law. This seems particularly relevant to our discussion today, as an examination of States’ reports to human rights bodies as well as studies (including CoE’s own “Stocktaking study” on its member states’ measures and actions with respect to VAW) Stocktaking study on the measures and actions taken in Council of Europe member States, Directorate General on Human Rights, 2006 have shown that support services can be considered among the poor components within the due diligence obligation to protect.

UN human rights treaty bodies and special procedures – including the violence against women mandate - of the Human Rights Council have gone into some detail to elaborate upon what exactly such protection means, I will briefly reflect on the key elements, mainly in the monitoring committees of CEDAW and CRC, with respect to the provision of services.

Suggested service provision by human rights bodies

UN human rights bodies have mostly discussed services within the framework of domestic violence, although quite a few recommendations could apply to victims of other types of violence, such as trafficking. In addition, the examination of treaty bodies’ commentaries makes clear that, while many services for victims of domestic violence have been provided by civil society organizations, the state is ultimately accountable for their provision and any failure of their delivery.

The following provisions are found in the reports of human rights bodies.

· Shelters: Any programme of support to women should entail the provision of specialized shelters or refuges for victims or those under risk of violence in order to ensure their security and physical and mental integrity. A number minimum criteria that a shelter should have, has been highlighted by CEDAW and the Committee on the Rights of the Child (CRC):
(a) available in sufficient numbers;
(b) geographically accessible to all women (including those in rural or remote areas);
(c) accessible 24 hours a day, 7 days a week;
(d) of good quality, i.e. observing certain standards of professionalism and expertise;
(e) free of charge or affordable to all;
(f) guarantee of confidentiality and security for women and their children as well as
staff and volunteers working in the shelter;
(g) allocation of adequate state resources, including non-governmental organizations
managing such shelters.
The issue of who, how and by who, would need to be addressed and tailaored carefully according to the specific context. In this regard, I have drawn attention in my mission reports to the need for centralized placement system – monitored by the central government – for high risk women, for whom protection may not be possible in a shelter in their home town. For example see my mission report to Turkey (A/HRC/4/34/Add.2).
· Counseling: The CRC has repeatedly expressed concern over violence against women and its negative impact on children, as children are either victims of violence themselves or witnesses and recommended that specialized counseling for children and mothers be provided. It has further been emphasized that state parties should ensure access to assistance with recovery and reintegration to all victims of violence including children. Norway, CRC/C/15/Add.263 (2005), para 27
· Intervention centers and hotlines are a key aspect of women’s protection. These centers should reach those living in rural areas and vulnerable populations such as women of minority or immigrant communities, irrespective of their residence status. E.g. CEDAW Concluding Observations on Czech Republic, CEDAW/C/CZE/CO/3 (2006), para 16
· Specialized psycho-social and medical counseling particularly for women victims of sexual violence, including rape, either in shelters or independently.
· Training, promoted and support by the state for health professionals, social workers and staff of shelters and intervention centers on violence against women, including domestic violence.
· Access to immediate means of redress and protection for women and girl victims of violence, explicitly guaranteed in State legislation. See e.g. CEDAW Concluding Observations on Togo, CEDAW/C/TGO/CO/5 (2006), para.19
· Any support and protection services should be provided to victims without discrimination. The principle of non-discrimination requires the State to proactively identify and reach towards those women who may be more vulnerable to violence and may have disproportionately less access to services and state protection. Specific attention should be paid to women living in extreme poverty, women from immigrant or minority communities, and women with disabilities.

Expanding the due diligence framework This section is drawn largely from my forthcoming article: “The Due Diligence Standard: What Does It Entail for Women’s Rights?” C. Benninger-Budel (Ed). Due Diligence: State Responsibility to Combat Violence against Women. Leiden: Martinus Nijhoff Publishers.

Current applications

These applications show that the due diligence standard has gained considerable ground under international human rights law with respect to women’s rights. However, the general trend in the way states have dealt with their due diligence obligation in responding to violence against women has been guided by a victim subject perception; therefore, they have responded to violence when it occurred rather than taking a more holistic approach that aimed at preventive action. There is a clear need for a paradigm shift from a victim to agency and humanitarian to a human rights approach. The former emphasizes that women encounter violence not because they are inherently weak and in need of protection but because of a patriarchal order that suppresses women’s agency, and the latter emphasizes that a life free of violence as an entitlement.

Furthermore, the provision of services for protection, such as telephone hotlines, healthcare, counselling centres, legal assistance, shelters, restraining orders and financial aid etc., has been inconsistent in implementation and in many cases ineffective in their consequence. Protection measures are also frequently based on short-term emergency assistance rather than on sustainable solutions to avoid re-victimisation. The lack of adequate enforcement by police and the judiciary of civil remedies and criminal sanctions for violence against women and an absence or inadequate provision of services such as shelters are major gaps observed in the current compliance with the obligation to protect. As a result, women often have no choice but to continue living with their abusers.

The current understanding and application of the due diligence standard as well as the gaps and challenges identified above highlight the need to redefine the standard so that it responds more effectively to the specificities of violence against women. The major potential for expanding the due diligence framework lies in the full implementation of generalised obligations of prevention – while effectively realising protection of the victim and punishment of the perpetuator– and in the inclusion of relevant non-state actors as duty bearers in relation to combating violence against women.

Holistic and integrated approach

While international human rights law provides the guiding principles for state action, innovative strategies need to be employed using alternative discourses such as empowerment and ‘cultural negotiation’ at different levels of intervention in order to challenge the foundations upon which gender hierarchies are constructed and violence and other forms of discrimination against women are justified and sustained. Cost efficiency models have also been developed to demonstrate the cost of violence against women on human resources and the economy at large. Report of the UN Secretary-General, In-depth study on all forms of violence against women, UN Doc. A/61/122/Add.1, 6 July 2006.

States, in their efforts to combat violence against women, must promote and support women’s empowerment as highlighted in the Platform for Action and engrained in the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights and the CEDAW. This approach must embrace the progressive realisation of the full range of rights – economic, social, cultural, civil and political. Fulfilment of these rights requires political will and an equitable allocation of limited resources, ensuring that women’s access to critical resources are not sacrificed to other priorities.

Empowerment discourse – through interventions ranging from education, skills training, legal literacy and access to productive resources, housing, sustainable livelihoods, among others – aims to enhance women’s self-awareness, self-esteem, self-confidence and self-reliance. This enables women to understand that subordination and violence are not a fate; to resist internalising oppression; to develop their capabilities as autonomous beings; and to be able to constantly negotiate the terms of their personal existence in public and private spheres as well as basic tenets of the overall gender order in their societies, i.e. countering the dynamics of power and economic imbalances that constrain the realization of women’s rights. With this in view I will be preparing my 2008 thematic report to the Human Rights Council on the political economy of women’s rights and its implications for violence.

Conclusion

The welfare/humanitarian approach that has over dominated the interventions to the problem inherently results in stigmatising women and fails to recognise their agency as well as the underlying multiple hierarchies that systematically reproduce violence. It must not be forgotten that women are subjected to violence not because they are inherently vulnerable or weak, but because of a discriminatory gender order that privileges the use of patriarchal violence to subordinate women. In this regard, it is essential that the agenda to end violence against women agenda be approached within an empowerment rather than a victimisation framework, while recognizing that there are victims. This means that the problem must be placed as part and parcel of the wider agenda for equality between women and men.

With such an approach in view, it is necessary to map out the parameters of state responsibility based on indicators derived from state obligations contained in international law. Precisely what is required to meet the standard of due diligence will necessarily vary according to the domestic context, internal dynamics, nature of the actors concerned, international conjuncture and, most importantly, political will at all levels. The progress achieved so far in the struggle to eliminate violence against women, although uneven and with notorious exceptions, has verified the conviction that oppressive values, institutions and relationships can be transformed.

Transformative change in gender structures is not an easy task, particularly in view of how deeply patriarchy is embedded. Furthermore, such change is inherently disruptive of the comfort offered by the status quo, as oppressive as it may be. While such change may hold risks, it also promises a step forward in greater emancipation not only for women, but for everyone. Eradicating violence against women and ensuring that human rights are universally enjoyed is, therefore, a shared interest and obligation.