Women’s Access to Justice for 7 Gender-Based Violence A Practitioners’ Guide Migration and International Human Rights Law 12 Composed of 60 eminent judges and lawyers from all regions of the world, the International Commission of Jurists promotes and protects human rights through the Rule of Law, by using its unique legal expertise to develop and strengthen national and international justice systems. Established in 1952 and active on the five continents, the ICJ aims to ensure the progressive development and effective implementation of international human rights and international humanitarian law; secure the realization of civil, cultural, economic, political and social rights; safeguard the separation of powers; and guarantee the independence of the judiciary and legal profession. ® Women’s Access to Justice for Gender-Based Violence A Practitioners’ Guide © Copyright International Commission of Jurists, February 2016 The International Commission of Jurists (ICJ) permits free reproduction of extracts from any of its publications provided that due acknowledgment is given and a copy of the publication carrying the extract is sent to its headquarters at the following address: International Commission of Jurists P.O. Box 91 Rue des Bains 33 Geneva Switzerland Women’s Access to Justice for Gender-Based Violence Practitioners’ Guide No. 12 ii PRACTITIONERS GUIDE No. 12 This Guide was written and researched by Lisa Gormley with substantive contributions and legal review provided by Ian Seiderman, Briony Potts and Alex Conte. The two Annexes to this Guide on international mechanisms and international legal remedies were taken directly from the ICJ’s Practitioners Guide No. 6 on Migration and International Human Rights Law. These annexes were researched and written by Massimo Frigo and Roísín Pillay. The ICJ is grateful to other NGO colleagues and national legal practitioners who offered their experiences and thoughts that have greatly contributed to informing the Guide. Among them the ICJ would like to give special thanks to Christine Chinkin, Andrea Coomber, Esther Major, Stephanie Schlitt and Gema Fernández Rodríguez de Liévana. The ICJ is particularly grateful to all those who made the time to attend a consultative event in Zimbabwe in relation to this Guide and would like in particular to thank Polo Banyane, Kelvin Hazangwi, Qinisile Mabuza, Lavender Makona, Mary Pais Da Silva, Asha Ramlal, Welekazi Stofile and Lillian Tibatemwa-Ekirikubinza. The provision of input and advice by these persons does not imply their endorsement of the content of the Guide for which the ICJ remains solely responsible. This Guide has been made possible with the support of IrishAid as part of an on-going multi-year project on empowering women judges, lawyers and human rights defenders as drivers of change. WOMEN’S ACCESS TO JUSTICE FOR GENDER-BASED VIOLENCE iii TABLE OF CONTENTS I. Introduction 1 A public health problem of epic proportions 1 International recognition of human rights implications 1 What does “access to justice for gender-based violence” mean? 3 BOX: Victim or survivor? 3 BOX: Women and girls 4 BOX: Are women “vulnerable” or are they targeted because of their identity as women? 4 The importance and limitations of a legal approach to violence against women 5 Women seeking justice: a catalyst for reform 6 Methodology and key authorities for this Practitioners Guide 9 II. Legal advocacy using applicable international human rights law – Guiding principles 11 Types of legal advocacy for which this Guide is designed 11 Building cultures of rule of law and equality across all State agencies 14 BOX: Initiatives relating to gender-based violence in the Middle East and Asian regions 17 Human rights law requires women’s empowerment to address discrimination, including gender-based violence 18 BOX: What is gender? 20 A rights-based understanding of the illegality of gender-based violence against women 20 iv PRACTITIONERS GUIDE No. 12 BOX: Gender-based violence impairs or nullifies women’s enjoyment of their human rights 21 BOX: When is an act of violence ‘gender- based’? 23 ‘Intersectionality’: protecting women’s rights for all women in their diversity 24 Why violence against women should be seen as a distinct human rights category 27 BOX: Gender stereotyping and freedom of expression 31 III. Forms of gender-based violence recognized as engaging international human rights law 37 BOX: Trafficking: a complex legal problem 45 BOX: Sex work / prostitution 46 IV. Respect, protect, fulfil: State responsibility for its own actions, and the actions of non-state actors 50 The obligation to respect 50 BOX: Torture and ill-treatment in the context of medical treatment, whether forced, coerced or denied 61 The obligation to protect: the challenge of violence by third parties, including private and other non-State actors 64 The obligation to fulfil: States must take a variety of measures to ensure human rights in practice 68 BOX: Promoting freedom from gender-based violence: “Necessary and achievable” 70 After violence has occurred: Effective remedies and reparation for violence against women 71 WOMEN’S ACCESS TO JUSTICE FOR GENDER-BASED VIOLENCE v V “Transformative reparation” for gender-based violence: dealing with the root causes of violence 76 Civil lawsuits against third parties that failed to protect women or girls at risk of violence 78 Violence against women in armed conflict and under international criminal law 80 Reparations and access to justice post-conflict 84 BOX: The end of conflict requires redoubled efforts to address gender-based violence 86 V. The Convention on the Eliminations of all forms of Discrimination against Women as a dynamic legal framework 89 Article 1: Gender-based violence constitutes a form of discrimination 90 Article 2: States must condemn discrimination and take appropriate and immediate action to eradicate it 92 Article 2(a) States must enact and enforce in national law the paramount principle of gender equality 93 BOX: The role of judges in enforcing the rule of law relating to gender equality 94 Article 2(b): Gender discrimination must face legal sanction 96 Article 2(c): The right to equality must be recognized and enforced by law 98 Article 2 (d): Public authorities’ role in respecting non-discrimination 101 BOX: Resources for advocates dealing with torture and ill-treatment 102 vi PRACTITIONERS GUIDE No. 12 Article 2(e): The State must take positive measures against gender-based violence irrespective of the status of the perpetrator as a State official or non-State actor 103 Article 2(f): States must ensure that laws, rules and customs do not discriminate against women 104 Article 2(g): Penal provisions must not discriminate against women 107 BOX: In recent years women’s detention and imprisonment across the world has grown disproportionately 108 Article 3: A positive guarantee of women’s enjoyment of their human rights 117 Article 4: Temporary special measures, including quota systems, to increase number of women professionals in justice systems, are necessary to achieve equality 119 BOX: Freedom from violence and substantive equality 122 Article 5: Gender stereotyping should not undermine the rule of law 123 VI. Traps, dead-ends and obstacles to justice: solutions proposed by human rights law frameworks 131 Traps: women facing further denial of their human rights in their search for justice 132 Dead-ends: the State does not provide a remedy 133 Obstacles: victims lack access to money to progress their case 135 Alternative justice systems 135 BOX: Plural legal systems: scales weighted against women’s equal participation 137 WOMEN’S ACCESS TO JUSTICE FOR GENDER-BASED VIOLENCE vii V VII. Safety, well-being, dignity, empowerment: building firm foundations for the criminal justice process 143 Making a firm foundation for initiatives to prevent gender-based violence through adequate gathering of data 144 BOX: Guiding principles for promising practices in law and the justice system 144 BOX: Ensuring effective laws, policies, practices and procedures 145 Measures required to implement appropriate rights-based services and support for women seeking justice 148 BOX: The right of women to access legal aid 151 BOX: Guidelines for health-care providers working with women subject to gender- based violence 168 BOX: When are services adequate? 169 Policing: basic principles 170 Requirements of protection orders 174 Access to legal assistance and courts that can comprehensively deal with a variety of issues 180 BOX: Affordability: access to legal aid 181 Family law and gender-based violence 183 BOX: Family law: divorce or separation generally 184 Employment Law 185 Housing Law 185 VIII. Improving criminal justice systems and fighting impunity 186 Each link in the criminal justice chain must incorporate the principle of non-discrimination 186 BOX: Laws must enforce respect for women’s integrity and dignity 186 viii PRACTITIONERS GUIDE No. 12 BOX: Understanding trauma of women subjected to violence, providing a professional service 188 Definitions of crimes 189 Domestic violence 189 Psychological violence 190 Stalking 191 Sexual harassment 192 Rape and other forms of sexual violence 195 BOX: Prohibit unwanted or forced sex in public and in private 195 BOX: Rape and sexual violence against men and boys 203 Forced and early marriage 205 Female genital mutilation 208 BOX: Defining the crime of female genital mutilation 209 Forced sterilization 210 Crimes relating to commercial sexual exploitation of children 211 Defences in criminal