Presentation on reparations for violence against women, Special Rapporteur on violence against women, its causes and consequences, 8 June, 2010.

Transcription

1 Presentation on reparations for violence against women, Special Rapporteur on violence against women, its causes and consequences, 8 June, Lisa Gormley, Legal Adviser on women s rights and international law, Amnesty International, International Secretariat. It is very hard to speak briefly as an introduction to the topic of reparations for violence against women. This topic addresses a huge variety of situations, a huge variety of needs, a huge variety of experiences of violations to hear, honour and repair: and the need to transform the lives of individuals in so many ways. The Special Rapporteur s report 1 illustrates this issue in at least four distinct areas: reparations for violence against women in situations of armed conflict, such as the Democratic Republic of Congo; reparation for violence caused by pervasive and egregious discrimination against women on the grounds of religious or cultural norms; the example of reparations programs in consolidated democracies such as those in former dictatorships in South America, in transitional justice processes; reparations in what might be described as functional states for acts of violence against women, whether perpetrated by state agents, (for example, violence against women in prisons, by police) or by non-state actors in the community, and the family. But wherever violence against women happens, the same wrongs are done: physical injury and death, disease, mental health problems, loss of housing, damage to life-plan, inability to support themselves and their families, and stigma, particularly when the violence takes a sexual form. The list of damage is long. Last year, there were tremendous developments in the legal understanding of reparations for violence against women, with the cases of Gonzalez et al v Mexico 2 (known as Caso Campo Algodonero, or the Cotton Field Case and Opuz v Turkey. 3 The Cotton Field case is particularly important as the five aspects of reparation, (rehabilitation, restitution, compensation, satisfaction, and guarantees of nonrepetition) were recognized as applying to violations of women s rights not to suffer violence outside situations of armed conflict or crimes against humanity. These are excellent developments, and in many ways, they constitute the logical and practical recognition of how the principles of equality before the law, the right of nondiscrimination, and the obligation of the state to exercise due diligence should be 1 Report of the Special Rapporteur on violence against women, its causes and consequences to the Human Rights Council, UN Doc A/HRC/14/22, 19 April Case of González et al. ( Cotton Field ) v. Mexico, Inter-American Court of Human Rights Judgment of November 16, 2009 (Preliminary Objection, Merits, Reparations, and Costs). 3 Opuz v Turkey(Application no /02) judgment, European Court of Human Rights, 9 June 2009.

2 implemented. These key principles are illustrated in a very concrete fashion both cases show how persistent attempts by women targeted for violence and their families sought from the state protection, investigation, and an end to violence, to no avail. Previously the principles of reparation were well understood in the situation of gross and systematic human rights violations and armed conflict, but less so outside that context: I hesitate to use the word peace, as some expert lawyers, notably Professors Chinkin and Charlesworth, have challenged the idea that there is ever a time of peace for women, and it is true that violence against women often increases in what is called the post-conflict phase. The Cotton Field case and and Opuz are extremely significant in that they both relate to violations of women s right not to suffer violence perpetrated by non-state actors: the Cotton Field relates to violence in the community, Opuz relates to violence in the family, but both refer to violence against women in peace-time, both exploring the responsibility of the state in very practical terms. I want to speak briefly in order to give more time for discussion today. But I want to tell you about two issues, which come from a very practical view of reparations which I learned primarily when working with Amnesty s Bosnia team, reviewing the situation of women who had been raped more than 15 years ago during the war. 4 Women seeking reparation, especially for sexual violence, are subject to stigma. How this stigma can be isolated, seen for what it is, and eradicated effectively is in my view, one of the most important issues for anyone interested in reparation to address. The usefulness and beauty of the Cotton Field case, Opuz and the new report of the Special Rapporteur is that they allow us to see guarantees of non-repetition as including the transformation of existing structural gender hierarchies and particularly, the transformation of gendered stereotypes. This is an existing obligation under human rights law, specifically Article 2(e) and 5(a) of the Convention on the Elimination of All Forms of Discrimination against Women, but the obligation to transform discriminatory stereotypes runs through other aspects of regional human rights law. This obligation is given particular resonant recognition in Convention on the Elimination of All Forms of Racial Discrimination, and the Disabilities Convention, as these acknowledge the particular stereotypes that women face when they are subject to multiple discrimination. 5 The intersection of gender discrimination with race, ethnicity, class, sexual orientation, gender identity, age, disability, identity as an Indigenous woman can all be significant further obstacles to reparation. 6 How to address stigma effectively is a challenge, but while it seems intangible, it is real, and it is an task which international organizations and donor states as well as 4 See Bosnia & Herzegovina: Whose justice?' : The women of Bosnia and Herzegovina are still waiting, AI Index EUR 63/006/2009, 30 September For a thorough and illuminating discussion of the issues, see Rebecca Cook and Simone Cusack, Gender Stereotyping: Transnational Legal Perspectives (2009) 6 One aspect of the Special Rapporteur s report which is particularly interesting is that she contrasts the obligation to provide reparation with the general obligation to ensure rights for women without discrimination, emphasising that these are two separate rights, with separate legal groundings, and the duty to provide reparation cannot be discharged by making improvements in the human rights situation alone. While this clarity is absolutely correct, it would be useful to explore further how the obligation to provide reparation can be seen as a catalyst for ensuring improved enjoyment of rights for women generally.

3 states, civil society organizations and individuals - can work on effectively. There are practical possibilities to be explored, working with the media, not just portrayal of women survivors in news, but radio and television drama, and discussions of current affairs: and education, from the very earliest age, about the inherent dignity and respect that must be accorded to everyone without discrimination. 7 The second core requirement is immediate healthcare. Many of the women who were being cared for by non-governmental organizations in Bosnia were in too poor a state of health to seek reparations actively, due to the violence they had experienced long-term physical damage, as well as psychological outcomes. Their ill-health was compounded by poverty inability to afford medical care, good housing, and being too ill to work. Because of this poor health, and poverty, taking basic steps to ensure their right to reparation engaging with prosecutors, travelling long distances to cities to make applications for benefits were beyond their strength in a very real way. Stigma and ill-health united to make it hard for women to state their case, and demand their due. This was a marked contrast with the male survivors of war in Bosnia former combatants who were well-organized, powerful voices able to make demands and access services. This played out in very basic state policies particularly injury benefits and pensions, where there are significant discrepancies in the value of injuries assessed for rape survivors rather than war wounded. Given these experiences, I believe that prioritising immediate healthcare, and challenging stigma, will be necessary conditions to allow women and girls to come forward in safety and dignity, and tell us what kind of reparation would best help them to recover. While it is a privilege for me to be here today addressing this meeting, the meetings of the future need to be addressed by grass roots women s organizations, and the survivors themselves, in outlining their needs and experiences, as well as international NGOs. As the Nairobi Declaration on women and girls right to remedy and reparation establishes very clearly, there needs to be a long-term engagement by women and girl survivors with those in power, at every step of the way to establishing reparation: explaining what their challenges are seeking reparation, designing systems to assess and distribute reparations, explaining how the systems work against them, how they could work for them. When thinking about the obstacles to reparation in preparation for this event, I was reminded of the way that good services have been described by the Committee on Economic, Social and Cultural Rights accessible, affordable, acceptable, and of good quality. This lens throws into sharp relief why and how reparation processes often fail women. Reparation is not accessible: women and girls, particularly those who are Indigenous, or live in rural areas, walk for days to make complaints, or lack finance to pay for travel to make complaints; 7 For examples of early age practical recommendations for methodologies, see for example

4 women and girls struggle to find doctors who can document their injuries as evidence, particularly in sexual violence cases, and are therefore debarred from making claims because of the lack of required paperwork. Reparation is not affordable: women and girls lack access to legal services, particularly if they are living in poverty; women are often living in a context of denial of economic rights, particularly inheritance, housing tenure, which is identified in the Special Rapporteur s report. Reparation is not acceptable: many mechanisms of reparation, whether judicial or administrative, simply replicate discrimination. In reconstruction of judicial systems after conflict, there is often a reliance on traditional justice mechanisms by recovering states and donors. This seems a cheap and accessible option, and acceptable to many communities (or rather those in control of communities), but this is not an acceptable outcome where women are excluded and discriminated against. 8 Reparation is not of good quality: awareness of the discriminatory nature of processes makes women and girls unwilling to come forward: they have no confidence that reparation processes will to give them something that will make their lives different, and indeed, many fear, reasonably, that seeking reparation will make their lives worse again, we come back to stigma. An important part of improving matters will be to make improved efforts to look at women s experience of violence from their point of view one excellent part of the Special Rapporteur s report was her questioning of the idea that sexual violence is the main problem that women face. Many women are harmed by non-sexual crimes, forced domestic service, domestic violence, or disappearance of a family member. We need to hear women assess what they need, and what is possible in their situation. When a relative, then a close friend experienced domestic violence, I realised that often prosecution is a long way down the list of priorities, well below keeping their children safe, and ensuring their economic viability without the abuser. Preparing this presentation, I thought that nothing I had planned to say seems very new. However, reviewing the Special Rapporteur s report, I realised that she emphasised a new dimension or reparation: the need to take stock regularly and thoroughly, on whether women are receiving the reparation they deserve, until they receive it, and not to stop until they do receive it. The Special Rapporteur highlights the experience of the survivors of sexual slavery perpetrated by the Japanese army in World War II, and their view of the reparation they wanted, the apology, not the money, the right to compensation, not charity: the emphasis on the spirit in which reparation is provided, as the right and due of people whose rights have been egregiously violated. In the same vein, I was shocked when working researching reparation in Bosnia that, even though there was such an outcry in the early 1990s about the systematic rapes, very little had been done for them, and with them to secure reparation, in a way that reflected their concerns. 8 For a useful discussion and analysis, see the International Council on Human Rights Policy, Legal Pluralism and Human Rights, accessible at <

5 Despite the need for more implementation, it is encouraging that understanding of the legal detail and the practicalities of ensuring reparation is developing fast. Now those of us working in human rights discourse are also supported by economic and development research, that ensuring that where are women and girls are empowered and educated, living free of violence, this leads to better lives for themselves and societies as a whole. So this is a ripe, and fruitful time for this discussion, and assessing together the strategies for action, based on this more detailed approach to the right to a remedy that the Special Rapporteur has outlined.