Excerpt from Report of the Special Rapporteur on violence against women, its causes and consequences, HUMAN RIGHTS COUNCIL, Fourteenth session, Agenda item 3, April 2010.
By Rashida Manjoo
This is the first thematic report submitted to the Human Rights Council by Rashida Manjoo, Special Rapporteur on violence against women, its causes and consequences, since her appointment in June 2009. In addition to providing an overview of the main activities carried out by the Special Rapporteur, the report focuses on the topic of reparations to women who have been subjected to violence in contexts of both peace and post-conflict.
Most human rights and humanitarian law treaties provide for a right to a remedy. In the context of gross and systematic violations of human rights, the Basic Principles and Guidelines on the Right to Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and serious violations of International Humanitarian Law, adopted by the General Assembly in 2005, start with the premise that “the State is responsible for ensuring that victims of human rights violations enjoy an individual right to reparation”.
Both the Convention on the Elimination of all Forms of Discrimination against Women and the Declaration on the Elimination of Violence against Women place upon the State the duty to prevent, investigate, punish and provide compensation for all acts of violence wherever they occur. Article 4 of the Declaration states that women who are subjected to violence should be informed about and provided with access to the mechanisms of justice and to just and effective remedies for the harm that they have suffered, as provided by national legislation. The obligation to provide adequate reparations involves ensuring the rights of women to access both criminal and civil remedies and the establishment of effective protection, support and rehabilitation services for survivors of violence. The notion of reparation may also include elements of restorative justice and the need to address the pre-existing inequalities, injustices, prejudices and biases or other societal perceptions and practices that enabled violations to occur, including discrimination against women and girls.
However, as pointed out by the previous Special Rapporteur, when it comes to the implementation of the due diligence obligation to reparation, “very little information is available regarding State obligations to provide adequate reparations for acts of violence against women … this aspect of due diligence remains grossly underdeveloped”.1
Section II.A of this report looks at conceptual challenges that prevail when placing the question of gender-sensitive reparations on the national and international agendas. Section II.B analyses procedural and substantive considerations emerging in reparations initiatives responding to violence in conflict, post-conflict and authoritarian settings. Section II.C examines reparations to women and girls in contexts of “peace” or consolidated democracies, by looking first at discriminatory practices against certain groups of women, and second by highlighting recent landmark cases in the Inter-American Court of Human Rights and the European Court of Human Rights.
CONCLUSION AND RECOMMENDATIONS
82. This report shows how the legal bases for a right to a remedy have been increasingly recognized in the corpus of international human rights and humanitarian instruments. Although among victims of violence, women have been especially neglected, the report examines significant substantive and procedural trends to reverse this, both in the discussion and in the practice of reparations, at national and international levels.
83. Reparation measures should not concentrate on the fairly limited and traditionally conceived catalogue of violations of civil and political rights, but instead should include the worst forms of crimes or violations targeting women and girls. It must additionally be acknowledged that the same violations may entail different harms for men and women, but also for women and girls and women from specific groups, and that violations may be perpetrated with the complicity of non-State actors.
84. The limits of ordinary and extraordinary judicial proceedings to achieve the full and comprehensive realization of women’s right to reparations are also examined in the report. Against this backdrop, it is argued that genderresponsive administrative reparations schemes can obviate some of the difficulties and costs associated with litigation. The administrative arena also enables a more proactive approach to the involvement of a larger group of people, including victims, at all levels – from conceptualization of reparation schemes, to reaching victims, to understanding the structural component of the violations – including the share of State responsibility by either action or omission, and the gender-specific impact of the violence on women’s and girls’ lives.
85. Reparations for women cannot be just about returning them to the situation in which they were found before the individual instance of violence, but instead should strive to have a transformative potential. This implies that reparations should aspire, to the extent possible, to subvert instead of reinforce pre-existing patterns of cross-cutting structural subordination, gender hierarchies, systemic marginalization and structural inequalities that may be at the root cause of the violence that women experience before, during and after the conflict. Complex schemes of reparations, such as those that provide a variety of types of benefits, can better address the needs of female beneficiaries in terms of transformative potential, both on a practical material level and in terms of their self-confidence and esteem. Measures of symbolic recognition can also be crucial.
They can simultaneously address both the recognition of victims and the dismantling of patriarchal understandings that give meaning to the violations.
1 The Due Diligence Standard as a Tool for the Elimination of Violence against Women: report of the Special Rapporteur on violence against women, its causes and consequences, Yakin Ertürk (E/CN.4/2006/61).