Documenting Women’s Rights Violations by Non-state Actors

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Documenting Women’s Rights Violations by Non-state Actors

Publication Authors: Jan Bauer and Anissa Hélie.

For years, the accepted wisdom was that human rights principles and law applied only, or mainly, to the mediation of the relationship between citizens and the State. This view was held and promoted by, among others, academics, lawyers and jurists, as well as many international non-governmental organizations (INGOs) and activists.

The majority of these institutions and individuals were North American and Western European. In parallel, the doctrine of due diligence, the State’s obligation to protect and promote rights and freedoms, was mainly interpreted as an obligation to “sanction itself.” Its agents (police, security forces, military) were to act, and institutions (the justice system, legislative bodies, ministries and departments) were to be established and operate in a manner consistent with the protection of human rights. Under this classical interpretation of rights, only States violated human rights and anyone else who acted inappropriately was a criminal. States had a great deal of latitude in terms of accountability and remedy, and the notion of a private sphere of human behaviour, in which the State could not or should not interfere, was sustained.

With few exceptions, INGOs did not change their approach very much until the mid to late 1990s and, even then, they tended to focus on such non-state actors as armed opposition groups and/or secessionist movements. However, there were also concerns that applying human rights methodology and monitoring to such entities would confer on them a quasi-state status to which the rights, privileges and immunities of a State would attach. The unwillingness to deal consistently with private/non-state actors also reflected the determination not to shift the emphasis away from the responsibility of the State to ensure the well-being of all persons living within the territory over which it exercised jurisdiction. Failings or inadequacies, especially in the areas of civil and personal status law (including in developed countries), were largely left to be discovered and remedied.

The separation of behaviours and laws which may or may not apply — between those of State/non-state and public/private nature — may be tidy and even convenient. The effect, however, was to establish an “international methodology,” which is still maintained in some quarters, and through which the crimes, abuse and violations directed against women and girls (and, in some instances against persons belonging to vulnerable groups) are ignored. The question is whether this can still be justified.

The Convention on the Elimination of All Forms of Discrimination Against Women, Article 2 (e) stipulates that States Parties will undertake “all appropriate measures to eliminate discrimination against women by any person, organization or enterprise” [emphasis added]. Subsequent articles deal with such matters as eliminating discrimination in access to education, health and employment as well as ensuring equality in matters pertaining to family, nationality and related areas. In each of these cases, substantial control of how this will be put into practice and of the context is in the hands of private/non-state actors.

The phrase “Women’s Rights are Human Rights” is far more than a catchy slogan. It is the underlining thesis of this manual that violence against women is a human rights violation and is unacceptable. Human rights is a universal concept reflected in all cultures. The concept of human rights has been rearticulated and reformulated throughout the ages and is continually evolving to deal with all attacks on human dignity and self esteem, no matter how these attacks are justified.

It was the concept of human rights, as expressed in terms of the right to self determination, that formed the basis of the struggles for independence from colonial domination. It was the concept of human rights that challenged apartheid and racial discrimination. In a world where State sovereignty is jealously guarded, human rights is the concept that has provided the basis for international law and it is the conscious attention to women’s human rights that ensures that human rights cuts through the public/private debate.

It is now generally accepted that a citizen’s relationship with the State should be governed by human rights and that the State is responsible for ensuring that its agents do not violate people’s human rights in the course of their duties. But that is not all. It is clear that the State has an equal obligation to monitor and prevent violations of human rights when they are perpetrated by non-state actors as well. Legal systems in most countries recognize that it is the duty of the State to enforce criminal law. Since the State clearly has a duty to enforce this law, there should be no debate about whether violence against women is a criminal offence and therefore within the jurisdiction of the State to intervene. Violence against women is always a crime, but some legal systems either fail to recognize this or fail to adequately deal with it. Such failures are violations of women’s human rights.

These failures are particularly evident in acts of violence against women that are committed not by State agents, but by non-state actors. Rights & Democracy (R&D) and Women Living Under Muslim Laws (WLUML) decided to work together on this particular manual because we saw it as an opportunity for both human rights groups and women’s human rights organizations to better understand the scope of the issue. In it, we examine the nature of violations perpetrated by non-state actors and focus on how activists should document and campaign to address violence committed against women by non-state actors. Although women everywhere are subject to this type of human rights violation, the global scope of the issue is better understood through examples drawn from activists’ experiences within various Muslim contexts. Our immediate goal is to provide activists anywhere in the world with additional tools to struggle against impunity.

Jean-Louis Roy
President Rights & Democracy

Homa Hoodfar
on behalf of Women Living Under Muslim Laws