Tuesday, September 12, 2017

General obligations of States parties under the Convention relating to gender-based violence against women 3/4

21. Gender-based violence against women constitutes discrimination against women under article 1 and therefore engages all of the obligations in the Convention. Article 2 establishes that the overarching obligation of States parties is to pursue by all appropriate means and without delay a policy of eliminating discrimination against women, including gender-based violence against women. This is an obligation of an immediate nature; delays cannot be justified on any grounds, including on economic, cultural or religious grounds. general recommendation No. 19 indicates that in respect of gender-based violence against women this obligation comprises two aspects of State responsibility: for such violence resulting from the actions or omissions of (a) the State party or its actors, and (b) non-State actors.

  Responsibility for acts or omissions of State actors 

22. Under the Convention and general international law, a State party is responsible for acts and omissions by its organs and agents that constitute gender-based violence against women.31 These include the acts or omissions of officials in its executive, legislative and judicial branches. Article 2 (d) of the Convention requires that States parties, and their organs and agents, refrain from engaging in any act or practice of direct or indirect discrimination against women and ensure that public authorities and institutions act in conformity with this obligation. Besides ensuring that laws, policies, programmes and procedures do not discriminate against women, according to article 2 (c) and (g), States parties must have an effective and accessible legal and services framework in place to address all forms of gender-based violence against women committed by State agents, on their territory or extraterritorially.

23. States parties are responsible for preventing these acts or omissions by their own organs and agents –including through training and the adoption, implementation and monitoring of legal provisions, administrative regulations and codes of conduct- and to investigate, prosecute and apply appropriate legal or disciplinary sanctions as well as provide reparation in all cases of gender-based violence against women, including those constituting international crimes, as well as in cases of failure, negligence or omission on the part of public authorities.32 In so doing, women’s diversity and the risks of intersectional discrimination stemming from it should be taken into consideration.
  Responsibility for acts or omissions of non-State actors

24. Under general international law, as well as under international treaties, a private actor’s acts or omissions may engage the international responsibility of the State in certain cases. These include:

a) Acts and omissions by non-state actors attributable to the States. The acts or omissions of private actors empowered by the law of that State to exercise elements of the governmental authority, including private bodies providing public services, such as healthcare or education, or operating places of detention, shall be considered as acts attributable to the State itself,33 as well as the acts or omissions of private agents in fact   acting on the instructions of, or under the direction or control of that State,34 including when operating abroad.
 b.) Due diligence obligations for acts and omissions of non-State actors. Article 2 (e) of the Convention explicitly provides that States parties are required to take all appropriate measures to eliminate discrimination against women by any person, organisation or enterprise35. This obligation, frequently referred to as an obligation of due diligence, underpins the Convention as a whole36 and accordingly States parties will be responsible if they fail to take all appropriate measures to prevent as well as to investigate, prosecute, punish and provide reparation for acts or omissions by non-State actors which result in gender-based violence against women.37 This includes actions by corporations operating extraterritorially. In particular, States Parties are required to take necessary steps to prevent human rights violations abroad by corporations over which they may exercise influence,38 whether by regulatory means or by the use of incentives, including economic incentives.39 Under the obligation of due diligence, States parties have to adopt and implement diverse measures to tackle gender-based violence against women committed by non-State actors. They are required to have laws, institutions and a system in place to address such violence. Also, States parties are obliged to ensure that these function effectively in practice, and are supported and diligently enforced by all State agents and bodies.40 The failure of a State party to take all appropriate measures to prevent acts of gender-based violence against women when its authorities know or should know of the danger of violence, or a failure to investigate, prosecute and punish, and to provide reparation to victims/survivors of such acts, provides tacit permission or encouragement to acts of gender-based violence against women41. These failures or omissions constitute human rights violations.

25. In addition, both international humanitarian law and human rights law have recognised the direct obligations of non-State actors, including as parties to an armed conflict, in specific circumstances. These include the prohibition of torture, which is part of customary international law and has become a peremptory norm (jus cogens)

26. The general obligations described in the paragraphs above encompass all areas of State action, including the legislative, executive and judicial branches, at the federal, national, sub-national, local and decentralised levels as well as privatised services. They require the formulation of legal norms, including at the constitutional level, the design of public policies, programmes, institutional frameworks and monitoring mechanisms, aimed at eliminating all forms of gender-based violence against women, whether committed by State or non-State actors. They also require, in accordance with articles 2 (f) and 5 (a) of the Convention, the adoption and implementation of measures to eradicate prejudices, stereotypes and practices that are the root cause of gender-based violence against women. In general terms, and without prejudice to the specific recommendations provided in the following section, these obligations include:

a) At the legislative level, according to article 2 (b), (c), (e), (f) and (g) and article 5 (a), States are required to adopt legislation prohibiting all forms of gender-based violence against women and girls, harmonising domestic law with the Convention. This legislation should consider women victims/survivors as right holders and include age and gender-sensitive provisions and effective legal protection, including sanctions and reparation in cases of such violence. The Convention also requires the harmonization of any existing religious, customary, indigenous and community justice system norms with its standards, as well as the repeal of all laws that constitute discrimination against women, including those which cause, promote or justify gender-based violence or perpetuate impunity for these acts. Such norms may be part of statutory, customary, religious, indigenous or common law, constitutional, civil, family, criminal or administrative law, evidentiary and procedural law, such as provisions based on discriminatory or stereotypical attitudes or practices which allow for gender-based violence against women or mitigate sentences in this context.

b) At the executive level, according to article 2 (c), (d) and (f) and article 5 (a), States are obliged to adopt and adequately budget diverse institutional measures, in coordination with the relevant State branches. They include the design of focused public policies, the development and implementation of monitoring mechanisms and the establishment  and/or funding of competent national tribunals. States parties should provide accessible, affordable and adequate services to protect women from gender-based violence, prevent its reoccurrence and provide or ensure funding for reparation to all its victims/survivors.43 States parties must also eliminate institutional practices and individual conduct and behaviours of public officials that constitute gender-based violence against women or tolerate such violence and which provide a context for lack of or for a negligent response. These include adequate investigation and sanctions for inefficiency, complicity and negligence by public authorities responsible for registration, prevention or investigation of this violence or for providing services to victims/survivors. Appropriate measures to modify or eradicate customs and practices that constitute discrimination against women, including those that justify or promote gender-based violence against women, must also be taken at this level.44

c) At the judicial level, according to articles 2 (d), (f) and 5 (a), all judicial bodies are required to refrain from engaging in any act or practice of discrimination or gender-based violence against women; and to strictly apply all criminal law provisions punishing this violence, ensuring all legal procedures in cases involving allegations of gender-based violence against women are impartial and fair, and unaffected by gender stereotypes or discriminatory interpretation of legal provisions, including international law.45 The application of preconceived and stereotyped notions of what constitutes genderbased violence against women, what women’s responses to such violence should be and the standard of proof required to substantiate its occurrence can affect women’s right to the enjoyment of equality before the law, fair trial and the right to an effective remedy established in articles 2 and 15 of the Convention.46


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