State responsibility for gender-based violence: government inability to prevent violence against women as gendered discrimination

By Antonina Vikhrest

It has been long argued by feminists that international human rights law does not protect women from violence. This critique was especially levied against the UN human rights conventions, such as the Convention on the Elimination of all forms of Discrimination against Women, which originally lacked any reference to violence against women. This lack of recognition of violence against women as a human rights violation has changed since the UN special procedures and human-rights treaty bodies began addressing violence against women as a separate issue in the 1990s. Developments in international human rights law have established a framework prohibiting states from committing acts of gender-based violence and holding states responsible for impunity towards violence against women committed by non-state actors. The critical question remains of how effective is such a framework, and to what extent does it help combat violence against women on the ground?

Despite the development of human rights norms on the protection of women from violence, many women around the world, far removed from international human rights institutions, continue to suffer violence in silence, risk no response or even retaliation from their perpetrators for speaking up. Governments discriminate by not sufficiently punishing and responding to acts of domestic violence, rape, and other forms of violence committed by non-state actors. Police officers at times do not take victim complaints seriously or respond in disdain, blaming the victims or dismissing claims for the sake of “encouraging” family reunification. Judges systematically hand down lower sentences for crimes committed “in the name of honor.” And even when action is taken, implementation of these measures is inconsistent and in many cases ineffective. Protection measures are also frequently based on short-term emergency assistance rather than on sustainable solutions that target avoiding re-victimization.

It is therefore a welcomed development that in 2009, in two separate cases, regional human rights courts have begun to find States responsible for not fulfilling their due diligence obligations to prevent, protect, investigate and remedy violence against women. In two landmark cases of Opuz v. Turkey and Gonzalez et al. v. Mexico, both the European Court of Human Rights and the Inter-American Court of Human Rights, respectively, found that government inaction to widespread violence against women, and in particular the inability to prevent such violence, amounts to gender-based discrimination. Both Turkey and Mexico were ordered to pay the equivalent of tens of thousands of Euros to the victims or their surviving families.

This is in many ways a very logical conclusion when we consider the grave context of the two cases, but it is the first time that the case law of either of the two courts determined that violence against women can constitute discrimination under the applicable human rights conventions. In Opuz v. Turkey, Ms Opuz was the victim of repeated physical abuse by her husband, who eventually shot her mother after she tried to help her daughter move away. The local police and judicial authorities responded with impunity to multiple acts of violence by the husband of Ms Opuz, imposing light fines for stabbing her seven times with a knife, and ultimately allowing him to be released from prison while he awaited the appeal of the decision in the case in which he was found guilty for murdering the applicant’s mother. In Gonzalez et al. v. Mexico, Mexico was found in violation of its obligation to prevent the murder of three female victims, who were killed in the context of mass-scale murders of women in Ciudad Juarez. These “femicides” lasted a period of over a decade, in which hundreds of mostly socially disadvantaged women mysteriously disappeared and turned up dead in remote parts of the town, often mutilated and with evidence of sexual abuse.

The two judgments ultimately found that violence against women equates to discrimination on the part of the State, when local authorities do not practice due diligence in actively evaluating reported cases of violence and taking into consideration a series of factors when deciding on what action to take in order to protect the reported victims of gender-based violence and prevent the repetition of such acts.

This signifies not only the transition of human rights norms into case law, but also identifies important pathways for bringing action against States that do not respond to violence perpetuated against women. Moreover, the two cases have important policy implications. The judgments find that in the presence of widespread violence that disproportionately affects women, governments must implement effective preventative policies. While the development of such case law alone does not do enough to change government attitudes to violence against women, these judgments do make important advancements in the fight against gender-based violence, helping to change the violent reality that so many women around the world unfortunately continue to face.

About the Author:

Antonina Vikhrest has recently completed an LLM in International Law of Human Rights and Criminal Justice at Utrecht University in the Netherlands. She is currently interning with the International Commission of Jurists and their Women's Human Rights Program, and has previously completed a study visit with the Council of Europe and worked with a woman's rights NGO in central Mexico.

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