COUNCIL STARTS ANNUAL DISCUSSION ON WOMEN’S HUMAN RIGHTS, FOCUSING ON REMEDIES AND REPARATIONS FOR VICTIMS OF VIOLENCE
25 June 2012
The Human Rights Council this afternoon started its annual full-day discussion on women’s human rights by holding a discussion on remedies and reparations for women who have been subjected to violence, debating challenges and identifying promising practices in providing effective, prompt, just, transformative and culturally sensitive reparations for women who have been subjected to violence in different contexts.
Navi Pillay, United Nations High Commissioner for Human Rights, introducing the panel, said that the concept of remedies enshrined in international human rights law encompassed the right to equal and effective access to justice and to adequate, effective and prompt reparation for the harm suffered. Recently there had been progress in the conceptualisation of gender-sensitive reparations, while the existing body of literature and experience had highlighted a number of general principles and programmatic guidelines to ensure that reparation policies and measures were guided by non-discrimination considerations and were gender sensitive, including adequate information for women and girls concerning their right to reparation.
Ms. Pillay underlined that it was only women and girls themselves who could determine what forms of reparation were best suited to their situation, what was culturally appropriate and did not expose them to further harm and victimisation, and the underlying causes that exposed them in the first place. The Council, through its mechanisms, including Special Procedures and the Universal Periodic Review, should engage and advocate for increased commitment and leadership to ensure prompt, adequate, and effective reparation for women who had been subjected to violence.
Rashida Manjoo, United Nations Special Rapporteur on violence against women, its causes and consequences, acting as moderator, expressed hope that some of the questions to be discussed today would also include the law on remedies and whether it included the goals of restorative justice and retribution, whether it was transformative at individual and institutional levels, and many more.
The panellists were Farida Shaheed, Special Rapporteur in the field of cultural rights; Carla Ferstman, Director, REDRESS; Chris Dolan, Director, Refugee Law Project; and Patricia Guerrero, La Liga de Mujeres Desplazadas.
Ms. Shaheed recalled that reparation could not be about returning women to the situation in which they were found before the individual instance of violence, but should strive to have a transformative potential. In that sense, the enthusiasm for parallel systems of remedies complimentary to the formal court system was of concern because many were built on traditions that had excluded women or that they had difficulty in approaching directly.
Ms. Guerrero said that the 2009 Cotton Field ruling by the Inter-American Court for Human Rights, which had sanctioned Mexico for the homicide of three women, had tremendous legal and political implications: it had confirmed the competency of courts to rule in human rights violations, reaffirmed the universality of human rights and their protection by courts, and allowed conceptual development of the issue of gender violence, which provided not only legal but political tools allowing women to engage with the jurisdiction and the executive to review public policies.
Ms. Ferstman said that today there were no compensation schemes targeting gender-based violence. It was interesting that discussions on domestic violence around the Council of Europe had developed as a result of the debate among compensation commissions. These schemes typically required a formal complaint procedure with the police before requesting compensation.
Mr. Dolan noted the important discussion on the transformative potential of reparations, but a number of key steps would have to take place in the field of transitional justice in order to unleash this potential, for example, by regarding reparations as important as prosecutions. Also, it should not be argued that reparations in poor countries were not practical given the limitations of resources because it was a matter of how the available resources were distributed.
In the discussion speakers said that for the fifth consecutive year the number of forcibly displaced people exceeded 42 million; 49 per cent of them were women and girls and sexual and gender-based violence was one of the most pervasive issues they suffered. Delegations welcomed the focus on transformative and culturally sensitive reparations but regretted that they continued to be the most underfunded area of justice and security programmes. The participation of women in shaping and implementing reparation processes was of utmost importance; otherwise the initiatives would reflect men’s experience and their concerns, priorities and needs.
Delegations asked how women and girls could be informed about access to remedy mechanisms so that they could make an informed decision on whether to seek a remedy or repatriation; what other remedy systems existed outside of formal courts; and how mechanisms to address violence against women in post-conflict settings could ensure that all women were taken into account.
Speaking in the dialogue were Canada, Chile on behalf of the Latin American and Caribbean Group, Senegal on behalf of the African Group, Turkey, Estonia, Uruguay, European Union, Egypt, Georgia, Pakistan on behalf of the Organization of Islamic Cooperation, United States, India, China, Cuba, Republic of Congo, Sweden on behalf of the Nordic Countries, Nepal, Germany, Saudi Arabia, Russia, Japan, Spain, Morocco, Angola, Switzerland, Malaysia, Thailand, New Zealand, Iran and Republic of Korea.
Also taking the floor were United Nations Women, the United Nations High Commissioner for Refugees and the Council of Europe, and the following non-governmental organizations: COC Netherland, Corporación Humanas, International Commission of Jurists, Young Women’s Christian Association, Women’s International League for Peace and Freedom and Movement Mondial des Mères International.
The Council will reconvene at 9 a.m. on Tuesday, 26 June for a full day meeting to continue its annual debate on women’s human rights and focus on women human rights defenders. The Council will then conclude its interactive dialogue on violence against women and on the independence of judges and lawyers, which started earlier today, after which it will start a general debate on the promotion and protection of all human rights, civil, political, economic, social and cultural rights, including the right to development.
NAVI PILLAY, United Nations High Commissioner for Human Rights, said that gender based discrimination was a pervasive human rights violation, often translating into abuse, violence and discrimination, and the Council should send a strong message that gender-based violence in all its forms was unacceptable. The concept of remedies enshrined in international human rights law encompassed the right to equal and effective access to justice and to adequate, effective and prompt reparation for the harm suffered. Without reparation the obligation to provide effective remedy was not discharged, not only as reparation but as retribution, rehabilitation and guarantees for no repetition. Recently there had been progress in the conceptualisation of gender-sensitive reparations. The Office of the High Commissioner was currently executing four pilot initiatives that had been designed in consultation with survivors and local and international organizations in follow up to the recommendations of the high-level panel on sexual violence in the Democratic Republic of Congo. The Office of the High Commissioner and United Nations Women were working on a guidance note on reparations for victims of conflict-related sexual violence. The existing body of literature and experience had highlighted a number of general principles and programmatic guidelines to ensure that reparation policies and measures were guided by non-discrimination considerations and were gender sensitive, including adequate information for women and girls concerning their right to reparation, that the definition of victims took into account differences between women and children, and other issues.
Gender considerations must be paramount in assessing the harm suffered. In the case of sexual violence and other gender-based crimes, the multidimensional and long-term consequences of the harm affecting women and girls must be taken into account. In deciding the form of reparations, a number of elements must be kept in mind, including existing obstacles and challenges women may face in owning land or receiving and managing money. The Special Rapporteur had also stressed the need to ensure that economic compensation and reintegration measures looked into the types of material benefits that could help enhance the autonomy of women and create opportunities traditionally denied to victims. Only women and girls themselves could determine what forms of reparation were best suited to their situation, what was culturally appropriate and did not expose them to further harm and victimisation, and the underlying causes that exposed them in the first place. While the conceptual framework was clearly delineated a review of programmes and schemes revealed a gap between conception and delivery. This forum could serve as a space to exchange lessons learned. The Council, through its mechanisms, including Special Procedures and the Universal Periodic Review, should engage and advocate for increased commitment and leadership to ensure prompt, adequate, and effective reparation for women who had been subjected to violence.
RASHIDA MANJOO, Special Rapporteur on violence against women, its causes and consequences, acting as moderator, expressed hope that some of the questions to be discussed today would also include the law on remedies and whether it included the goals of restorative justice and retribution, whether it was transformative at individual and institutional levels, and many more. She then asked Farida Shaheed, Special Rapporteur in the field of cultural rights, to comment on what constituted some of the practices of remedies for acts of violence, which also included reparations, from different parts of the world. The moderator also asked for comments concerning the efficiency of alternative dispute resolution forums or parallel forums.
Statements by the Panellists
FARIDA SHAHEED, Special Rapporteur in the field of cultural rights, recalled the point made by Ms. Majoo that reparation could not be about returning women to the situation in which they were found before the individual instance of violence. Instead, reparations should strive to have a transformative potential. This was a crucial point that could not be over-emphasized. In this connection, Ms. Shaheed was concerned at some of the enthusiasm that had been shown for parallel systems of remedies complimentary to the formal court system. Her experience showed that many of the parallel systems of self governance and dispute resolution forums were built on traditions that had excluded women or that they had difficulty in approaching directly. Reports on cultural rights and the right to participate in cultural rights, included the right not to participate in anything that was against human dignity and human rights. Diversity within communities was equally important as that across communities. One of questions to be asked was whether women were part and parcel of the design of such mechanisms, their implementation and their monitoring. They frequently were not, or merely tokens. Who determined what cultural heritage was, who decided which part would continue, needed to be reoriented, or discarded? Any remedy and reparations system needed to ask those questions.
PATRICIA GUERRERO, La Liga de Mujeres Desplazadas, said that the Cotton Field ruling by the Inter-American Court for Human Rights which had sanctioned Mexico for the homicide of three women had tremendous legal and political implications and had ensured that victims had their rights recognized. This ruling had confirmed the competency of courts to rule in human rights violations and had reaffirmed the universality of human rights and their protection by courts. The ruling was specific also because it had provided a detailed breakdown on the obligations of States and because it introduced the issue of gender violence and so offered a conceptual development of the phenomenon which provided not only legal but political tools allowing women to engage with the jurisdiction and the executive to review public policies and bring reparation, retribution, due diligence and other topics. The Cotton Field was the ruling from 2009 and was a non-binding ruling for States, but provided basic guidelines for States to update their conduct. It could have an impact on regional mechanisms for human rights protection not only in Latin America but also in Europe and Africa.
CARLA FERSTMAN, Director, REDRESS, noted the development of systems of crime prevention and criminal injury compensation schemes. These schemes allowed victims who applied for compensation after having contacted the police for a particular crime to receive compensation, even if criminal charges were not pursued. Compensation was determined on the basis of a scale level and based on harm, medical expenses involved, etc. There were today no specific schemes targeting gender-based violence. It was interesting that discussions on domestic violence around the Council of Europe had developed as a result of the debate among compensation commissions. In some countries, the deadline for applying for compensation could be too short and this could have an impact in cases where victims required time before feeling able to denounce a crime. Nevertheless, these schemes were an important point of reference as they catered for a wider array of crimes and illustrated the possibility of having systems of assigning compensation to individual victims. These schemes typically required a formal complaint procedure with the police before requesting compensation.
CHRIS DOLAN, Director, Refugee Law Project, commented on the space for reparations created to deal with the challenge of violence against women. There was a movement towards an understanding of reparation which combined physical and psychological aspects. The inclusion of both practical interventions and acknowledgements distinguished reparations from other mechanisms where the recognition of victimisation played no role. There was an important discussion on the transformative potential of reparations, but a number of key steps would have to take place in the field of transitional justice in order to unleash this potential. The place of reparations in the spectrum of transitional justice had to change, for example, by regarding reparations as important as prosecutions. It should not be argued that reparations in poor countries were not practical given the limitation of resources; it was, rather, a matter of how the available resources were distributed. For example, in Sierra Leone, the ratio of resources dedicated to prosecution and reparations, respectively, was close to 100 to 1. Moreover, if the point of reference was the amount spent on each perpetrator, the ratio showed an even greater imbalance reaching 500,000 to 1. This illustrated the impact that a different distribution of resources could have in making reparations meaningful.
Question: In countries coming out of conflict there was an increasing development of reparation programmes and schemes. What was the experience from countries such as Sierra Leone, the Democratic Republic of the Congo or Mozambique? What was the experience of the International Criminal Court?
CARLA FERSTMAN, Director, REDRESS, contrasted the case of Rwanda with the work of the International Criminal Court and the victims’ trust fund in particular. It was interesting that in Rwanda during the genocide it had been estimated that approximately 250,000 to 500,000 girls, women and boys had been raped, and that was only a small component of the broader elements of gender-based violence which took place in the context of genocide. Rwanda did not have a programme of reparations nor did any ad hoc or specialized criminal court prior to the International Criminal Court and therefore it had been up to domestic courts and justice system processes to somehow find a way to deal with the atrocity which was massive in its scale and quite unprecedented in relation to human resources and financial resources which would be required. In Rwanda a system was set up called the Fund for Needy Survivors, which was not a reparation scheme but more of a humanitarian scheme which provided a variety of different forms of assistance to victims determined to be most needy. Often, women and girls were amongst those seen to be most needy. As part of Gachaca courts which took over prosecution of suspects in Rwanda, there was supposed to be a reparations scheme, but this only came into being in a very small way in relation to claims for material damage. Because of some of the challenges in relation to these issues, there was a lot to do in relation to reparations in Rwanda. With regards to the Trust Fund for Victims at the International Criminal Court, the Trust Fund had been doing excellent work in complimenting the criminal side of the International Criminal Court and had carried out a lot of consultations and community-based projects. Though there had not yet been a first reparation decision, it was hoped that the Court would follow lead and look comprehensively at the range of impacts coming out of very narrow judgements.
CHRIS DOLAN, Director, Refugee Law Project, said that on the issue of whether the Trust Fund could provide reparation or fit into the reparations picture, especially the transformative reparations picture, the answer had to be no. Looking at the Lubanga case, victims dealt with by the International Criminal Court, under 200, in a country supposed to be rape capital of the world, needed to go beyond this. It could never deal with collective remedy required in a situation of mass violence such as in the eastern Democratic Republic of the Congo.
Turkey said that the successful combating of all forms of discrimination and violence required the joining of national and international efforts, while the Organization of Islamic Cooperation noted the urgency of greater awareness and the fight against impunity. Chile, on behalf of the Latin American and Caribbean Group, noted that countries could not skirt around the remedy and reparation for violence against women that had occurred in the context of armed conflict and Estonia agreed that they had to put policies and practices in place to ensure effective access of women to justice systems and appropriate remedies. Participation of women and girls in shaping, implementing, monitoring and evaluating reparation processes was of utmost importance, said the European Union; otherwise the initiatives would reflect men’s experience and their concerns, priorities and needs regarding of redress.
The African Group believed that a holistic approach to remedies and reparation was necessary and that it was important to further explore other proposals, especially concerning the extension of reparation to cases of criminal nature. Providing effective remedies outside the court system could empower women who experienced violence, said the United States; such remedies could include reparations for harm suffered, rehabilitation, and guarantees of prevention and non-repetition. The issue of remedies and reparation was a complex one, said Canada and asked how women and girls could be informed about access to remedy mechanisms so that they could make an informed decision whether to seek remedy or repatriation. Egypt asked what other mechanisms for reparation apart from judicial ones could be put in place.
India, Uruguay and Georgia spoke about national efforts to ensure remedy and reparation to women victims of violence, including the implementation of the provisions of the United Nations General Assembly resolution on reparation and remedy for women victims of sexual violence and the national law strengthening the protection of women from violence, including domestic violence.
China said it had implemented a law on the rights of women and implemented a development outline for Chinese women that included priority in economic development planning, while collegiate panels on women’s rights had been established at different levels and provided for the protection of women victims in civil cases. UN Women welcomed the focus on transformative and culturally sensitive reparations and said reparations programmes could deliver redress and provide acknowledgement and reaffirmation of women’s rights as equal citizens. It lamented that reparations continued to be the must underfunded of justice and security programmes and that the focus on prosecutorial justice had not been matched. COC Netherland, in a joint statement, said that there was a need for specific measures for redress for women and linked individual reparation with the broader context in which women were targeted; gross violations had been often excluded from considerations of harm. Explicit recognition and visibility of different forms of harm was a prerequisite for redress and reparation. Corporación Humanas said that a gender-sensitive approach lay at the heart of reparations, along with recognition of forms of violence to which women were subjected measures to address the root causes of it. International Commission of Jurists stressed that many current forms of reparations were failing because the procedures were not sufficiently women and victim-centred but, rather, replete with gender-stereotype. The organization asked how crucial for the realisation of women rights of reparation was the representation of women and marginalised groups in the justice system?
CARLA FERSTMAN, Director, REDRESS, said that victims needed to be informed. There was a lot of practice, though probably not enough, of involving women and girls in the actual processes leading to reparations. In the Truth Commissions of Sierra Leone and South Africa for example, the issue of violence against women was dealt with specifically and women’s groups in those communities were able to engage. Repatriation differed from development but in a development context measures had to take into account the specific needs of women and girls in order for them to be part of the process. Concerning questions about the many victims of violence living outside of the country where the violence took place, Ms. Ferstman said it was important that measures were put in place both in those countries and in host countries to ensure that refugees could take part in reparation.
CHRIS DOLAN, Director, Refugee Law Project, said the 2007 Nairobi Declaration on women and girls’ rights to remedy and reparations offered important steps in recognizing their interconnection and adopted the basic principle of non-discrimination based on sexual orientation. More time would be needed before transgendered men were able to seek reparation. The patriarchal myth had to be unlearned. Asserting women’s strengths and capacities would be more effective if male vulnerabilities were simultaneously evidenced. The recommendation of the Truth and Reconciliation Tribunal of Sierra Leone to include men and boy as victims of violence was noted. Concerning the use of rape as a weapon of war, Mr. Dolan felt strongly that the process of understanding the many perpetrators to also be victims had advanced in some work with child soldiers, but that now needed to be extended to adult soldiers. One had to not just take away the gun but also disarm the mind and to do that, work had to continue on gender and sexuality frames that triggered the use of the body as a weapon of war.
FARIDA SHAHEED, Special Rapporteur in the field of cultural rights, stressed the importance of looking at individual cases and innovative approaches to reparations in terms of transformation. Many did not necessarily provide financial remuneration but, rather, contributed to addressing the context, preventing victimisation and promoting solidarity. In order for reparations to be transformative, they should effectively address the root causes associated with victimisation well as individual cases. There was no way to avoid the need to actively involve women; similarly, the issue of masculinity should be addressed alongside a discussion of femininity in any systematic dialogue about gender-based violence.
PATRICIA GUERRERO, Liga de Mujeres Desplazadas, answering a question about ways to ensure reparation policies were fully implemented even in countries that were not fully developed, replied that access to the justice system was an important part of development and peace. Regarding women in situations of vulnerability and unaware of their rights, Ms. Guerrero emphasised that it was the responsibility of States to invest in education and sensibilization. Victims’ experiences and testimony had on many occasions contributed to the identification and codifications of crimes which did not previously exist.
Cuba said that the Beijing Platform for Action was important in advancing the commitments made by Governments. Republic of Congo said that the situation of women had improved thanks to the creation of the Ministry for the Promotion of Women and support for their integration in development. Sweden, speaking on behalf of Nordic Countries, said that violence against women was also a serious challenge in the Nordic countries. Only by improving the cooperation among the authorities, service providers, professional and non governmental organizations would tangible results be yielded. Nepal asked the panellists to share their views on how international or regional mechanisms could contribute towards ensuring effective remedy and reparation for women who had been subjected to violence in national contexts. Germany asked what the greatest obstacles in practice for women to claim compensation and reparation were, and about obstacles to them receiving those remedies. Could the Council of Europe Convention on Preventing and Combating Violence Against Women and Domestic Violence play a crucial role in the improvement of women’s access to compensation for cats of gender-based violence?
Saudi Arabia said that it had acceded to the Convention on the Elimination of All Forms of Discrimination Against Women. It had also initiated educational campaigns in society to raise awareness of violence against women and its negative effects. Russia said that in its Criminal Procedure Court victims were provided with compensation for material damage, and expenses related to preliminary investigations in court were also covered. However, it would be wrong to limit reparation measures to monetary compensation.
Several speakers referred to initiatives taken in their countries, for example, Japan indicated that protection and living assistance were provided to victims in individual cases, and that remedies for women victims were indispensable for protection of their rights and should be culturally sensitive. Spain said that its legislation provided a comprehensive approach to addressing gender-based violence. Reparation should include the right to assistance, compensation, rehabilitation, and guarantees of no repetition. Morocco said that recent political reforms attested to its commitment to the promotion of the rights of women. A national plan of action to combat sexual violence and a public awareness campaign had been implemented. Angola had undertaken a study to examine the legal and political dispositions in place to protect and prevent women and persons with disabilities from acts of violence and urged States to establish public information and sensibilization programmes. Switzerland underlined the complexity of reparation procedures and the need for victims’ awareness of their rights for reparation. States should take the responsibility of establishing mechanisms for reparation, assistance and guarantees that perpetrators would be brought to justice.
Malaysia highlighted amendments to its domestic violence act which expanded the scope of compensation and stipulated that victims of domestic violence could be referred to rehabilitative therapy. Regarding international initiatives the Council of Europe said that the Istanbul Convention introduced the obligation to ensure swift and accessible remedies for women victims of violence, including civil remedies against the perpetrator and the State if it failed to act, as well as criminal law remedies against severe and widespread forms of violence against women. Young Women’s Christian Association stressed that comprehensive remedies needed to be accompanied by measures that promoted the rights of women and girls, and the awareness on the prevalence of violence against women and girls worldwide. Women’s International League for Peace and Freedom was concerned that the almost exclusive focus on sexual violence against women reinforced gender stereotypes of women as victims and objects of male protection. Movement Mondial des Mères International denounced the difficult situation faced by many mothers in the Middle East when their families were displaced or forced to seek refuge in a neighbouring country.
United Nations High Commission for Refugees said that for the fifth consecutive year the number of forcibly displaced people exceeded 42 million; 49 per cent of them were women and girls and sexual and gender-based violence was one of the most pervasive issues they suffered. Thailand believed that effective remedies must be tailored to the victim, while New Zealand asked how mechanisms to address violence against women in post-conflict settings could ensure that all women, particularly marginalized and vulnerable ones, were taken into account. Iran proposed innovative remedies for women and children suffering from violence in the context of armed conflict and defining new culturally and religiously sensitive principles to combat violence against women. Republic of Korea emphasized that the United Nations and all Member States should make concerted efforts to establish remedies for women victims of violence and to end impunity.
RASHIDA MANJOO, Special Rapporteur on violence against women, its causes and consequences, in closing remarks, said speakers had agreed that violence against women had a high global cost, and that the world needed to start addressing its root causes. There were examples of emerging practices that could inform domestic efforts. There was also a question about how to inform women and girls about the existence and access to reparation mechanisms. The issue of non-discrimination with regard to reparation had been referred to by many speakers, as was the important aspect of women as active agents in their communities who were coming up with remedies. Finally, and most importantly, the right to remedy and restitution must include guarantees of non-repetition.
PATRICIA GUERRERO, La Liga de Mujeres Desplazadas, said that many speakers referred to situations of armed conflict and noted that the first request was for zero tolerance to violence against women in armed conflicts. Access to justice for women in armed conflict areas was also important and it was essential for women to protect different human rights.
FARIDA SHAHEED, Special Rapporteur in the field of cultural rights, said it was important to involve men and youth in discussions about violence against women. Women must believe that they had a right to claim their human rights: that was vital for remedies and reparations. They must be a part of planning, implementation and monitoring of remedy systems. One size may not fit all and different kind of reparations and interventions were needed for different kinds of people. Housing was important and there was evidence that women who lived in their own houses or on land they owned were less vulnerable to violence. Complementary and parallel systems of justice must be designed to transform situations and catalyze change towards gender equality.
CHRIS DOLAN, Director, Refugee Law Project, said that he was struck by the number of creative responses from States parties. He spoke about the general practice of supporting and resourcing the development of laws on violence against women. However good they were, if laws were not supported by adequate resources to implement and train the appropriate duty bearers, they would be like schools without teachers. The two must go hand in hand. The whole issue of intersections of different identities and status needed to be taken on board to get to the structural inequalities that underlay violence against women. Undue focus on prosecution was one of the greatest obstacles because in the majority of cases, those would never get to a judicial process. Even if they were available and accessible by women, that would not be enough. The issues surrounding stigma, shame and exclusion as a result of being a victim all needed to be addressed and that could not be generally done through those processes. Other, more collective mechanisms were urgently required.
CARLA FERSTMAN, Director, REDRESS, said that over the last decade there had been a number of extremely important cases worthy of consideration by States. Those included the Cottonfield case, the Opus vs. Turkey case and the Economic Community of West African States’ important decision on practices of slavery. It would be relevant and important for States to not only consider the variety of existing jurisprudence but also take the good advice contained in the Special Rapporteur’s 2010 report. Significantly, the number of general comments relevant to issues under discussion as well as certain jurisprudence of the treaty body complaint mechanisms were contained in that report, all of which would benefit from close scrutiny at the domestic level. That was a huge task. An international level of cohesion and of understanding of what the legal standards were was slowly developing.
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