Due diligence for women's human rights: transgressing conventional lines

Open Democracy

Jennifer Allsopp: Yakin, you were invited to Oxford to deliver the annual Barbara Harrell-Bond lecture at the Refugee Studies Centre. You stressed in your talk, and have repeatedly argued elsewhere, that violence against women is a human rights issue. Could you say something more about the relationship between violence against women and human rights?

Yakin Erturk: The 1948 Universal Declaration on Human Rights and the conventions that codified its principles were largely about the harm done by a State and state actors to people in public space. Given the gendered structures that exist within society, those in public space who were most likely to be targeted by the State were men. For this reason, human rights basically excluded much of women’s experiences. However, from its inception, the “founding mothers” engaged with the United Nations. The latter provided women with a platform to voice their common concerns and the former made significant contributions to engendering the UN language and institutions.

The adoption by the UN General Assembly (UNGA) of the Convention on the Eliminations of All Forms of Discriminations against Women (CEDAW) of 1979, against many odds, was a major victory in altering international relations which was conventionally shaped exclusively by “high politics”. The main breakthrough in the human rights area, however, came in the 1990’s.

The global women’s movement for years drew on concepts that were already established as human rights violations and reinterpreted them to describe how abuses such as torture and the restriction of freedom of movement etc. manifest differently within women’s lives. After years of lobbying they were able to illustrate that what happens to women in private life, on the street, during times of conflict, particularly at the hands of non-state actors, is a human rights violation. Violence against women, which could not be included among the provisions of CEDAW, finally became recognised as a human rights issue at the World Conference on Human Rights in Vienna in 1993. A year earlier, in 1992, the Committee monitoring the implementation of CEDAW had adopted General Recommendation 19, defining violence against women as a form of discrimination.

The Vienna Conference was followed by the emergence of gender inclusive standards in human rights protection, including among others: the endorsement of the Declaration on the Elimination of Violence against Women in 1993 by the UNGA; the creation in 1994 of the post of Special Rapporteur on Violence against Women (SRVAW) by the Commission on Human Rights (now Council on Human Rights); the inclusion of violence against women, including armed conflict and the situation of refugee women, among the critical areas of concern adopted at the Fourth World Conference on Women in 1995 in Beijing; and the acceptance of assaults on women during armed conflict by the 1998 Rome Statute of the International Criminal Court as crimes against humanity and war crimes. These steps enabled, for the first time in history, public scrutiny of wrong doings in private life and bought a new focus to those occurring in the public sphere.  

These developments are a breakthrough in strongly recognizing all forms of violence against women as a human rights concern.

JA: You have said that violence against women, as an entry point to women’s human rights, has been a ‘transformative agenda’. Can you explain how doors have been opened for the specific group of refugee women?

YE: Violence against women, a late comer to the UN gender equality agenda, more so than any of the previous approaches to women’s advancement - such as formal equality and women in development - touched upon the taken for granted aspects of life. It thus questioned the very basis of gendered subordination as well as the mainstream human rights thinking, resulting in a broadened notion of rights. This had three main transformative outcomes: (i) transformation of conventional understandings of human rights beyond violations perpetuated by state actors in the public sphere, i.e. demystifying the public/private dichotomy in law and exposing non-state actor responsibility in human rights violations; (ii) transformation of the doctrine of state responsibility to include the actions of private individuals, i.e. causing a shift from negative to positive state responsibility in responding to human rights violations; and (iii) transformation of the criminal justice system with the recognition of new species of crimes, such as rape as a crime against humanity during armed conflict, domestic violence, marital rape, stalking, etc.

Recognition of gender based persecution by non-state actors had a significant bearing on feminizing the refugee issue. It brought a new interpretive insight to the 1951 Refugee Convention, which recognises persecution on the basis of five grounds: nationality, ethnicity, religion, political opinion and membership of a particular social group. The Convention is silent on sex (as well as on age).

With the broadening of the women’s human rights agenda, domestic violence, female genital mutilation and so called honour crimes to count a few, began to be accepted as criteria for considering asylum applications. While in the past 2-3 decades courts and refugee review boards have acted in favour of women escaping non-conventional forms of persecution, the results are not consistent. The very criterion of gendered persecution continues to be contested and in many cases the 'home state ability to protect' is used to reject asylum cases of women escaping non-conventional forms of violence.

The jurisprudence that has evolved since the Refugee Convention needs to be exploited further to ensure that international protection applies whether to Convention refugees or otherwise. The interrelatedness of the international human rights system imposes interlocking responsibilities on States. Today, women’s human rights and the norm of non-discrimination on the basis of sex are well established standards. Human rights monitoring mechanisms, such as the Special Procedures of the Human Rights Council, offer further opportunities to advance the practice with respect to state responses to the situation of women seeking asylum.

JA: You have said that ‘in today’s climate refugees are no longer welcomed people’.

YE: The Refugee Convention, which is often referred to as a Cold War document, was basically a response to assist those seeking refuge from the communist system. As such, those seeking refuge in the West represented a political victory of the ideals of the 'free world', therefore they were welcomed. In the post-cold war era, international dynamics have changed; polarization based on mega ideologies has been replaced by clashes across and within civilizations, leading to qualitative and quantitative changes in refugee flows. Mass flows of refugees are perceived as a destabilizing force that need to be kept contained where they are.

The global political environment following 9/11 has further politicized the issue, as it made security discourse a priority on the agenda of all states. Refugees and migrants are seen as a security and public safety risk. Regrettably, within such an environment there is a strong justification for constructing legal and physical barriers to keep foreigners at arm’s length.

Ironically, while the largest proportion of refugees is in the poor developing countries, it is the developed countries that are adopting the most stringent asylum and refugee policies and measures. Despite the fact that there is today a comprehensive international human rights system that provides a higher threshold of eligibility for refugee status and potential for enhanced protection vis-à-vis the Refugee Convention,  asylum and refugee issues are entrapped within politics, security concerns and are often a matter of state discretion.

JA: You made 17 field visits as UN Special Rapporteur on violence against women, what observations did you make regarding the circumstances of refugee women?

YE: The situation of refugee women is certainly within the mandate of the Special Rapporteur on violence against women and it has been included in various thematic and country reports since 1994. However, in my opinion the subject has not been sufficiently addressed yet. I have always regarded population movements to be central to women’s human rights. The 1993 Declaration on the Elimination of Violence against Women refers to violence at three levels: the family, community and the state. In my first report to the Commission of Human Rights in 2004, I suggested that there’s a fourth level: the transnational arena, which due to globalization and increased transnational processes, has emerged as a level where women are encountering new vulnerabilities as workers, immigrants, refugees, victims of trafficking and so forth.

Until now the Special Rapporteurs focused on standard setting, operationalizing concepts and identifying implementation gaps and obstacles to eliminating violence. More work needs to be done with respect to the situation of particular women’s groups, including refugee women.

JA: Could you say something about the relevance of the Rapporteur’s role in terms of standard setting, and also in terms of securing justice for individual women? You have said that it is a possible remedy for intervening in cases of violence against women. I think that’s a perspective that we don't really hear much about which could be of a greater relevance to civil society.

YE: Special Rapporteurs are part of the Special Procedures mandates of the Human Rights Council. They are the most directly accessible of the international human rights mechanisms. They are designed to monitor and report publicly on human rights violations with respect to thematic issues (thematic mandates) or on the human rights situation in a particular country (country mandates), including during times of crisis. 

The Special Rapporteur on violence against women is the only mandate among the Special Procedures that is dedicated specifically for women’s rights issues. The Rapporteur is mandated to fulfill three main tasks: (i) conduct official fact finding country visits at the invitation of governments; (ii) prepare annual reports on indepth analysis of relevant thematic issues; and (iii) receive and transmit confidential communications.

Unlike the monitoring bodies of specific treaties (tasked to monitor the implementation of the relevant treaty), the Special Rapporteur on violence against women is not guided by a single body of established standards. While the human rights standards embodied in all of the existing treaties, particularly CEDAW, as well as the 1993 Declaration, provide the Rapporteur with a normative framework, the violence against women mandate is a new field. In this respect, since its inception in 1994, considerable ground has been covered in setting standards for the conceptual understanding of violence, tools for implementation and accountability to end impunity for crimes against women.  

The first Rapporteur spent the first decade of the mandate paying a great deal of attention to setting standards and defining basic concepts. For example, the model legislation she developed on domestic violence in 1996 to assist States in meeting their obligations is particularly noteworthy. Building on the work of the first Rapporteur, as her successor, I saw my task as to identify gaps, focusing on effective implementation of the standards and on obstacles to realizing women’s human rights. I started with thedue diligence standard, which has long defined state responsibility in international law and was incorporated into CEDAW General Recommendation 19 and the 1993 Declaration in relation to combating violence against women. These documents call on states to exercise due diligence to preventprotect, investigate and, in accordance with national legislation, punish acts of violence against women, whether perpetrated by the State or by private persons, and to provide reparation to victims of violence.

My report on the due diligence standard questions what it means for a state to be diligent in combating violence against women and examines how States have responded to their due diligence obligation. I found that the implementation of this standard was very selective and incomplete. The report helped to demonstrate that violence against women is not only about harm done but also about women’s subordinate social position; its elimination naturally required supporting women’s empowerment in order to prevent violence from occurring in the first place. I argued that the due diligence obligation of states entails a holistic approach that combines 'prevention' along with 'protection' and 'provision of compensation' along with 'punishment'. The report also identified two major obstacles in the struggle against violence which were addressed in successive reports: culturalizing the problem of women’s human rights and the neo-liberal global economic environment. 

Among the responsibilities of the SR the communications procedure is of particular importance as it is accessible to women at no charge. It provides for the direct intervention of the SR in establishing dialogue with a state concerned in a credible allegation of a human rights violation. Despite its unique potential, this mechanism is not fully exploited by women. The number of communications transmitted by the Rapporteur annually is far below that of the more conventional human rights mandates, such as human rights defenders or torture. Each of the latter act on over 300 complaints a year, whereas the violence against women mandate receives some 80 credible complaints a year. Most of the complaints received tend to concern mainstream human rights violations. A number of factors, no doubt, account for both the type and low number of complaints, including: lack of familiarity with international mechanisms; the legalistic and distant nature of human rights mechanisms; the fact that women are still reluctant to make public the rights violations they experience; and, finally, the fact that women’s rights activism and human rights activism rarely converge, which keeps women marginal to the existing human rights monitoring framework.

While some interventions of the SRVAW will have a positive consequence on individual cases, they will not necessarily oblige states to change laws and practices, particularly where the case involves issues related to citizenship, asylum and the like. In the final analysis it must be borne in mind that for the international human rights system to produce the expected results, member states must be willing to cooperate. Similarly, national and international civil society must be willing to follow up on the cases submitted and demand accountability from governments and other concerned bodies. However, reports on a country’s compliance – or lack thereof – with human rights norms expose human rights abuses and can pressure a government into altering its practices.

I have acted on a number of cases involving asylum and refugee matters. In situations where I was able to personally follow up on a complaint positive results were achieved. Debora Singer conducted a study for Asylum Aid in 2006 on whether the work of the Special Rapporteur on violence against women can benefit women asylum seekers. She found that the mechanism had a positive impact on 5 of the 8 cases transmitted to the Rapporteur between 2000 and 2006. While Singer has reservations about the role of the communications mechanism, she does make the point that the reports of the Rapporteur are useful in providing country research to support women’s asylum claims and that legal representatives should be encouraged to consider information from these reports in preparing cases.

The above study is not conclusive given the low number of cases reviewed. The complaint mechanism of the Special Rapporteur on violence against women needs to be examined further to identify how its potential can be enhanced. This mechanism is a unique and a powerful instrument; it is not necessarily a legal remedy, but it brings hidden issues to public discourse which will subsequently be the motor of change in a society. Therefore, there is more work to be done to ensure that women fully exploit its potential and this requires a partnership between the Special Rapporteur and civil society actors.

The role of local and global non-governmental organizations is critical and multifaceted in the work of the Special Rapporteur. They provide information on human rights situations in a particular country, share research and analysis, disseminate her work, advocate and lobby for the implementation of the Rapporteur’s recommendations and hold direct consultations with the Rapporteur. The European Regional Consultation was held in London in 2007, under the sponsorship of the National Alliance of Women’s Organizations (NAWO). A key area of focus was migration and asylum issues. Discussions shed light on the plight of women asylum seekers in the European region, particularly as refugee issues have become subordinate to national security regimes. The discussions of the meeting were published by NAWO.

Therefore, there is mutual benefit in engagement between the SR and civil society actors. NGO’s and academics, while contributing to the mandate, can also utilize the human rights protection provided by the mandate.

JA: We’re running a series of articles during 16 Days of Activism against Gender Violence for 2013. Do you have any goals for this? What would you like to see?

YE: Today, although women’s reality - whether in the area of asylum or otherwise - is in stark contrast to international norms, the terms of engagement offered by the human rights doctrine is empowering. Perhaps one of the most significant achievements so far is that gender inequality is now recognized as a problem to be tackled by public and private institutions. The international regime for women’s human rights forms the basis of a new social contract which acknowledges that the obligations of justice and rights for women goes beyond national, cultural boundaries and require considerable re-interpretation of existing standards to ensure their application without discrimination.

In today’s world order, no state can remain fully distant to the emerging international jurisprudence. State legitimacy and sovereignty are inevitably verified at the international level on the basis of the degree to which a state fulfils its international human rights obligations. States need to be held accountable with respect to their obligations in respecting, promoting and protecting the rights of persons under their jurisdiction and those who take refuge when escaping from persecution, including from gender specific abuse. Holding states accountable to their interlocking human rights obligations will require developing strategic alliances with other progressive movements and fully exploiting the opportunities offered by the international human rights system.

In this respect, it is important for women to strategize beyond CEDAW, which they now use effectively, and engage with other human rights bodies such as the Twin Covenants (International Covenant on Civil and Political Rights (ICCPR) and International Covenant on Economic, Social and Cultural Rights (ICESC), and the newly established Universal Periodic review (UPR), among others. The UPR involves the monitoring of states by their peers. Although states may tend to be lenient with one another, civil society can maximize the utility of this mechanism by way of effective engagement. The experience of the global women’s movement of the last three decades is, I think, a testimony of how this can be achieved.

16 Days of Activism has become a powerful force for mobilizing women across the globe. It tactfully links 25 November, the  International Day of Non-violencewith 10 December, International Human Rights Day. This campaign can be instrumental in highlighting areas where awareness and progress has been slow, as in the situation of women refugees.