On 8 March 2016, last month’s International Women’s Day, the International Commission of Jurists (ICJ) published a Practitioners’ Guide on women’s access to justice for gender-based violence, a piece of work I completed as a consultant.
This Practitioners’ Guide, part of a series of Guides on specific legal topics that the ICJ has produced, serves as a manual designed to introduce legal practitioners to the international and regional framework relevant to gender based violence advocacy. The project has been extremely timely, as the most recent General Recommendation 33 of the CEDAW Committee on women’s access to justice was published in August, and the substance of this new standard has been incorporated into this new Practitioners’ Guide.
Having written previously on women’s rights and international law, in the context of supporting Amnesty International’s research and campaigning work on violence against women, it was a very different experience to write a Practitioners’ Guide for the International Commission of Jurists. A Practitioners’ Guide is necessarily a succinct analysis of law, packaged in a format for ease of reference for a busy professional, aiming at a solid, rather than creative, analysis of the law: or at least where what is speculative, with possibilities for creating an evolution of the law, is highlighted as being such.
In 2003-4 I considered the principle of state responsibility for the actions of non-state actors (especially domestic or intimate partner violence, including marital rape). In the ten years or so that have elapsed since then, the principle that was elaborated in the regional conventions on gender-based violence (Belem do Para and the Maputo Protocol) have been confirmed by jurisprudence (Opuz v Turkey, the Cottonfield case and, Lenehan (Gonzalez) v US) by subsequent treaties (Article 5 of the Istanbul Convention) and by confirmation in treaty bodies’ general comments (The Committee against Torture’s General Comment 2; The Committee on the Elimination of Discrimination against Women’s General Recommendation 28; and the Human Rights Committee’s General Comment 31).
The detail of these domestic violence cases identified that states have duties to ensure cases of domestic violence are prosecuted, because these are in the public interest (Opuz); to ensure a regime of protection orders (Opuz) and to ensure the effective implementation of protection orders in cases of breach (Lenehan (Gonzalez)). In the case of Gonzales Carreno v Spain, there was a stringent analysis of the rights of children in cases of domestic violence to be heard by the courts, and for decisions relating to custody not to be swayed by stereotypical views, including that an abusive father has the right to parental contact, irrespective of the harm his behaviour causes the child. The safety of women and their children has been identified as the priority that states should address, not the privacy of the family unit, an abusive man’s property rights over the shared/marital home or the right of parental contact.
The first half of the Guide is based on a review of key global and regional legal standards – including the universal human rights treaties and regional treaties addressing women’s human rights from the African, American and European systems, and a brief reference to regional developments in the Arab Charter on Human Rights and ASEAN human rights systems. This part of the guide also contains condensed references to international and regional jurisprudence on gender-based violence, and some examples of good practice in jurisprudence at the domestic level.
Other trends in the jurisprudence and standards addressed in this Practitioners’ Guide include the confirmation of intersectionality as an approach that should be taken by courts to promote equality – especially the rights of Indigenous women (the cases of Valentina Rosendo Cantú and Ines Fernandez Ortega) and also including the right not to be subjected to discrimination on the grounds of sexual orientation and gender identity being recognized in treaty law (Istanbul Convention, Article 4(3)).
The second half of the Practitioners’ Guide addresses the practical situation faced by women survivors of gender-based violence, and the steps that States need to address in order to secure their access to justice in practice. This requires that the justice process deals with women’s need for safety and access to services, including medical services, ensuring women’s empowerment and access to information about their right to justice. There is a Chapter dedicated to women’s experience of the criminal justice system, ensuring that victims and witnesses can give their evidence in safety and dignity. The substantive and procedural criminal laws must also reflect the rights of victims, and are applied in such a way that impunity is addressed effectively.
Woven into these accounts is commentary and reflection from legal advocates and women human rights defenders on their experience of seeking justice for women, and their recommendations to legal advocates doing this work
The Guide also contains a summary of some leading academic literature and civil society organization commentary and research, particularly references and signposting to existing resources that take an in-depth look at relevant issues, for example, guides on protection of the safety of women human rights defenders and access to asylum for women facing persecution in the form of gender-based violence.
Two particularly important materials which informed this Practitioners’ Guide are two academic projects, which have a clear impact on the development of laws that ensure women’s access to justice: the book “Gender Stereotyping” by Rebecca Cook and Simone Cusack and the CEDAW Commentary, edited by Christine Chinkin, Marsha Freeman and Beate Rudolf. Cook and Cusack’s elegant analysis of international human rights law on gender stereotyping provides the tools to analyse in detail why a statement or proposition can be challenged in objective terms as inaccurate or tending to limit women’s choices, preferences and action, rather than (or indeed, supplementary to) the subjective viewpoint that a stereotypical view is sexist and offensive. As such, it provides a further lens, a further dimension, to any gendered human rights problem. The CEDAW Commentary contains an accessible analysis of the huge body of CEDAW Concluding Observations as well as General Recommendations and jurisprudence, set out according to Article and subject matter.
Women’s equality and an end to gender-based violence are recognized as cornerstones in current high-level global normative processes, such as the Sustainable Development Goals and the 15 year review of the women, peace and security initiative at the Security Council (the latter recognized the necessity of “transformative” justice, which includes women as participants and leaders at every level), yet the implementation of these norms in reality is lacking, so profoundly. As a writer, I always wonder how readers are affected by what I write, what is persuasive, what is useful, what is discounted and why: so much more so with this Practitioners’ Guide. We need to know more about why these norms are not taken up.
In an ideal world, there would be detailed guides to assist those dealing with gender-based violence against women to provide a good, rights-based service to survivors across all professions, and the wider community. I hope that you will find this contribution helpful and would welcome your feedback.