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The Principles of State Responsibility and Systemic Intimate Violence

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The Principles of State Responsibility and Systemic Intimate Violence Meeting Summary The Principles of State Responsibility and Systemic Intimate Violence Summary of the International Law Discussion Group meeting held at Chatham House on Wednesday, 22 September 2010. Speakers: Professor Bonita Meyersfeld, Associate Professor of Law, School of Law and Head of Gender, Centre for Applied Legal Studies, University of the Witwatersrand, South Africa Gauri van Gulik, Women's Rights Division, Human Rights Watch Chair: Sonya Sceats Associate Fellow, Chatham House The views expressed in this document are the sole responsibility of the author(s) and do not necessarily reflect the view of Chatham House, its staff, associates or Council. Chatham House is independent and owes no allegiance to any government or to any political body. It does not take institutional positions on policy issues. This document is issued on the understanding that if any extract is used, the author(s)/ speaker(s) and Chatham House should be credited, preferably with the date of the publication or details of the event. Where this document refers to or reports statements made by speakers at an event every effort has been made to provide a fair representation of their views and opinions, but the ultimate responsibility for accuracy lies with this document’s author(s). The published text of speeches and presentations may differ from delivery. Meeting Summary: Principles of State Responsibility and Systemic Intimate Violence Introduction The event was organised to explore the application of international law to systemic intimate violence, including recent legal developments at the UN, European, inter-American and pan- African levels. Participants included representatives of NGOs, government bodies, academics and practising lawyers. Prof Bonita Meyersfeld The application of international law to the problem of domestic violence raises many questions: Is there a right to be free from domestic violence in international law? If there is such a right, what is its substance? If there is a right, what is the corresponding legal obligation, how do we categorise that obligation in international law and to whom does the obligation apply? How can international law assist people in the most intimate and private contexts of their lives? Women are most affected by domestic violence and domestic violence is the main cause of illness, death and disability amongst women aged 15 to 44 – more so than AIDS, Malaria and TB. It is often described as a global pandemic. However, the analytical framework set out in Domestic Violence and International Law (Bonita Meyersfeld, Hart Publishing 2010) can and should be used to determine states’ responsibilities under international law to protect any vulnerable group from private violence. International law Is there a prohibition in international law against domestic violence? There is no truly international treaty on this specific topic. The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), adopted in 1979 by the UN General Assembly, prohibits discrimination against women but does not include an express prohibition of violence against women. This omission was cured to some extent in 1992 when the Committee on the Elimination of Discrimination against Women issued General Recommendation 19 on violence against women. In 1993, the UN General Assembly passed a Declaration on the Elimination of Violence against Women; however this lacks binding force. At the regional level there is an Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women (known as 'the Convention of Belem Do Para') but this has a limited geographical scope. Likewise the 2003 African Union Protocol on the Rights of Women in Africa which establishes that every woman has a right to life, integrity and security of the person; prohibits all forms of exploitation, cruel, inhuman or degrading punishment and www.chathamhouse.org.uk 2 Meeting Summary: Principles of State Responsibility and Systemic Intimate Violence treatment; and requires that states parties enact and enforce laws 'to prohibit all forms of violence against women including unwanted or forced sex whether the violence takes place in public or private'. In terms of customary international law, a key problem is that states act consistently in failing to prevent domestic violence. Traditionally, few states had laws prohibiting domestic violence, however many do now. Were these laws adopted because the state believed it was required by or consistent with an international obligation (therefore evidencing opinio juris on the matter)? If international law is referenced in the legislation then possibly so. However, what happens to this assessment when we consider that domestic violence continues to occur at alarming levels – does this mean that there is no custom or simply that the legislation does not work? Currently it must be concluded that there is insufficient evidence of state practice to support the claim that there is a customary international law prohibition of domestic violence. However, it is possible to view in a range of recent developments the beginnings of a process of norm crystallisation which will arguably culminate in a customary international legal obligation on states to protect victims and survivors of domestic violence. For example: (i) The former UN Special Rapporteur on Torture, Manfred Nowak, argued in a report to the Human Rights Council (A/HRC/7/3 15 January 2008) that the state has an obligation to protect against torture in private committed by non-state actors. He proposed that powerlessness be recognised as an element of the definition of torture. The 'situation of powerlessness arises when one person exercises total power over another, classically in detention situations, where the detainee cannot escape or defend her/himself. Applied to situations of ‘private violence’, this means that the degree of powerlessness of the victim in a given situation must be tested. If it is found that the victim is unable to flee or is otherwise coerced into staying by certain circumstances, the powerlessness criterion can be considered fulfilled.' What is the role of the state here? The language of the Convention against Torture regarding consent or acquiescence of state or public officials 'clearly extends state obligations into the private sphere and should be interpreted to include state failure to protect persons within its jurisdiction from torture and ill-treatment committed by private individuals.' ii) In a recent case, Caso González y otras v México (known as the 'Campo Algodonero case'), the Inter-American Court of Human Rights found Mexico in breach of the Inter- American Convention on Human Rights and the Convention of Belem do Para for failing to investigate the disappearance and murder of women over a period of 15 years. Many instances of death and mutilation were linked to domestic violence. www.chathamhouse.org.uk 3 Meeting Summary: Principles of State Responsibility and Systemic Intimate Violence iii) In 2005 the Council of Europe Task Force to Combat Violence against Women, including Domestic Violence (EG-TFV) was set up and issued a report in 2008 identifying a shift in international law from protecting individuals against the state to protecting individuals from harm by non-state actors. The Task Force called for a legally binding Convention. In 2009, the Secretary-General of the Council of Europe announced the preparation of a European treaty on action against violence against women. iv) The jurisprudence of the European Court of Human Rights is evolving in this area. Consider for example: A v United Kingdom (1999) – the UK was held to be in breach of Article 3 of the European Convention on Human Rights (the prohibition of torture and inhuman or degrading treatment or punishment) for the failure to protect a child against prohibited ill- treatment, in this case caning, 'administered by private individuals'; Kontrová v Slovakia (2007) – Slovakia was held to be in breach of Article 2 (the right to life) for the failure to take preventive operational measures to protect children from being killed by their father despite knowledge on the part of the police that they were being subjected to regular severe beatings and psychological abuse; and Opuz v Turkey (2009) – Turkey was held to be in breach of Articles 2, 3 and 14 (prohibition of discrimination in the enjoyment of Convention rights) for the failure to protect a woman and her mother from domestic violence at the hands of the woman's husband (he ultimately killed the woman's mother), despite numerous complaints made to the police. Further examples of progressive developments are explored in Domestic Violence and International Law. If a new right to be free of domestic violence is in the process of being formed at the international level, what is the likely substance of this right? International human rights law does not protect all our interests – only some core, fundamental interests. Why should domestic violence qualify as a right protected by international law? The answer is that certain forms of domestic violence have characteristics and constitutive elements that are not present in other forms of social harm – extreme forms of domestic violence are systemic, predominantly harm a discrete group (women), and are pervasive in almost every society worldwide. It is only this subset of domestic violence – 'systemic intimate violence' – that is capable of triggering the application of international law. Systemic intimate violence Systemic intimate violence has five elements: (1) Severe emotional or physical harm, or the threat thereof; (2) A continuum of violence, including threats of violence; (3) it is committed within an intimate relationship; (4) the victim is a member of a group in society which is www.chathamhouse.org.uk 4 Meeting Summary: Principles of State Responsibility and Systemic Intimate Violence discriminated against or is inherently more vulnerable to harm; (5) the violence is systemic in the sense that it occurs in a society in which the state has omitted to satisfy the standards that will help to remedy such violence.
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