GBV and State Accountability

Gender-based violence: a violation of human rights

Gender-based violence is a violation of human rights. It is an offence against human dignity and a manifestation of the historically unequal power relations between women and men.[1] Women’s human rights are protected by a legal framework which includes international and regional human rights instruments, statutes and constitutions. Article 1 of the Universal Declaration of Human Rights declares that all human beings are born free and equal in dignity and rights. Caribbean constitutions recognize and guard the equal and inalienable rights of all persons with the country’s jurisdiction. Each person is secured with the right to life, liberty and security of the person and the right to protection of the law.

The Constitution holds the state accountable for violation of human rights. Each Caribbean State has a positive duty to take reasonable measures to protect women and girls from domestic violence and sexual violence. Barrow J in Francois v Attorney-General of Saint Lucia[2] located this duty from the Bill of Rights of the Constitution. To adequately safeguard the human rights of women and girls, each Caribbean country must respect the rule of law. The rule of law requires that the State has proper regard for gender equality and provide just and effective remedies for victims of gender-based violence. States should provide a fair and accessible legal system for victims of gender-based violence. The rule of law operates so that all persons are equal before the law.

Development at the regional and international levels: securing human rights

International and regional human rights recognize women’s human rights and mandate States parties to act with due diligence in protecting women and girls from domestic violence and sexual violence. At the international and regional levels, there are specific instruments which deal with domestic violence and sexual violence. However sexual harassment is not specifically governed by any international convention.

Key human rights instruments which recognize and protect women’s human rights include:

1. The Universal Declaration of Human Rights which broadly sets out the framework for human rights making it clear that all human beings are born free and equal in dignity and rights;

2. The Declaration on the Elimination of Violence against Women (1993) which affirms that violence against women constitutes a violation of the rights and fundamental freedoms of women. This Declaration calls on states to exercise due diligence to prevent, investigate and punish acts of violence against women, whether perpetrated by the state or by private persons;

3. The Beijing Declaration and Platform for Action (1995) a global political event which recognizes which enunciates that women’s rights are human rights. It calls upon states to take integrated measures to prevent and eliminate violence against women and study the causes and consequences of violence against women and the effectiveness of preventive measures;

4. The Inter-American Convention on the Prevention, Punishment and Eradication of Violence Against Women “Convention of Belém do Pará Convention” (1994) which focuses specifically on violence against women and provide guidelines to States parties as to the measures they should take to eliminate this scourge from the society;

5. The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) (1979) and General Recommendation No. 19 (1992) which is directed towards eliminating discrimination against women and which recognizes gender-based as a form of discrimination against women;

On December 22^nd, 2000 an optional protocol to CEDAW came into force. This protocol established a communication procedure for individual women or groups of women to submit claims of violations of CEDAW after exhausting all domestic remedies and an enquiry procedure which allows the committee to investigate matters of “grave systematic violations of women’s rights”. To date Antigua and Barbuda (5^th June 2006), Belize (9^th December, 2002) and St. Kitts and Nevis (20^th June 2006) have signed onto the Optional Protocol. The British Virgin Islands and the Turks and Caicos have also signed on as they remain overseas territories of the United Kingdom which has embraced optional protocol.

6. The Convention on the Rights of the Child 1989 and its Optional Protocol on the Same of Children, Child Prostitution and Child Pornography 2008 which expressly set out the duty of the State to protect the child against physical, mental and sexual abuse;

7. The Discrimination (Employment and Occupation) Convention, 1958 (No. 111) adopted by the International Labour Organization (ILO) which prohibits discrimination on the basis of sex in the field of employment and occupation. The following Caribbean countries have ratified this Convention: Antigua and Barbuda in 1983; The Bahamas (2001); Barbados (1974); Belize (1999); Dominica (1983); Guyana (1975; Jamaica (1975); Saint Kitts-Nevis (2000); Saint Lucia (1983); Saint Vincent & the Grenadines (2001) and Trinidad and Tobago (1970);

International Covenant on Civil and Political Rights (1966)

The treaty provides for the right to protection of life under Article 6 and the right to liberty and security of the person under Article 9. Albeit these rights are not defined specifically in gender terms they are directly relevant to women’s protection against violence as a fundamental human right.

International Covenant on Social, Economic and Cultural Rights (1966)

This treaty, among other things, addresses the right to equal protection under the law and the right to the highest standard of physical and mental health. Violence against women is a legal protection and a physical and mental health concern and therefore this treaty imposes an obligation on its member states to protect these rights of their citizens.

Convention Against Torture and Other, Cruel, Inhumane and Degrading Treatment or Punishment 1984 (CAT)

The Convention against Torture prohibits torture of any kind, torture is defined as an act which causes severe pain or suffering whether physical or mental which is intentionally inflicted “for the purposes such as obtaining information, punishment, intimidation or coercion, or any reason based on discrimination.” The Committee against torture explains that the State responsibility under this treaty for none state actors is that “failure to prevent and protect victims from gender-based violence, such as rape, domestic violence….and trafficking” is a violation of the Convention [3]

8. The CARICOM Charter of Civil Society (1997) which recognizes the equal rights of women and expressly states that all women have rights to legal protection including just and effective remedies against domestic violence, sexual abuse and sexual harassment. It further recognizes the right of the child to be free from violence and sexual abuse. The Charter is not legally binding. It is a declaration representing the aspirations of the CARICOM countries.

States’ obligations under international law

Positive obligations of Caribbean countries under international law

When a State ratifies or accedes to a convention, the terms of the convention bind the State and the State is legally bound under international law to put the provisions of the convention in practice. This obligation is such that ‘under general international law and specific human rights covenants, States may also be responsible for private acts if they fail to act with due diligence to prevent violations of rights or to investigate and punish acts of violence, and for providing compensation.’[4] In the case of A.T. v Hungary,[5] the CEDAW Committee found that the lack of specific legislation to protect women from domestic violence was a violation of their human rights and fundamental freedoms, particularly the right to security of person.

Most English-speaking Caribbean countries are parties to the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) (1979) and the Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women (1994). Under these conventions Caribbean countries have committed to take the necessary measures within the country to achieve the full realization of the rights which are set out in the conventions. These include legislative measures to prevent and punish acts of violence against women, improving access to justice by establishing fair and effective legal procedures for victims and establishing the necessary legal and administrative mechanisms to ensure that victims of gender-based violence have access to just and effective remedies.[6]

Guyana has directly incorporated the provisions of these conventions into its domestic law. By virtue of an amendment to the Constitution in 2003, the Constitution guarantees the protection of those rights set out in human rights conventions to which it is a State party.[7]

Duty where there is ambiguity in local law to interpret that local law in a manner consistent with country’s international obligation

In the English-speaking Caribbean, the terms of international and regional conventions do not become part of the domestic law. They have to be incorporated into the domestic law by an Act of Parliament before they can be enforced locally. Where the terms of a convention have not been incorporated into local law and there is ambiguity in a local law, judges have a duty to interpret that local law in a manner which is consistent with the country’s international obligation under the convention (Boyce and Joseph v R (2004) 64 WIR 37, [2004] UKPC 32).

Caribbean States Parties to the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) (1979) and Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women (Belém do Pará Convention) (1994)

Table showing the status of ratifications, accessions to CEDAW (1979) and the Belém do Pará Convention (1994) by English-speaking Caribbean countries[8]

The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) (1979)

The text of the CEDAW does not expressly mention gender-based violence. However the CEDAW Committee in its General Recommendation No. 19 (1992) clearly stated that gender-based violence (which includes sexual harassment) is a form of discrimination against women. States parties to the Convention are under an obligation to take all appropriate means to eliminate violence against women, whether perpetrated by public or private acts. General Recommendation No. 19 urges States parties to ensure that there are laws against all forms of gender-based violence which give adequate protection to all women, and respect their integrity and dignity. States should also provide appropriate protective and supportive services for victims and there should be gender-sensitive training for judicial and law enforcement officers and other public officials.

CEDAW requires each State party to submit periodic reports on its implementation in the country. Some of the recurring concerns of the CEDAW Committee when considering reports from Caribbean countries are:

1) the entrenched gender-based stereotypical attitudes and behaviour with regard to the roles of women and men in the family and in society which tend to reinforce women’s inferior status in many sectors of public life.[9]

2) the persistence of gender-based violence within Caribbean countries which constitute obstacles to the full implementation of the Convention.[10]

3) The reluctance of states to incorporate the Convention into domestic legislation.[11]

The CEDAW Committee has repeatedly stated that full and effective implementation of the Convention is indispensable for achieving the Millennium Development Goals (MDGs)[12] and has called for the integration of a gender perspective and the explicit reflection of the provisions of the Convention in all efforts aimed at the achievement of the MDGs.[13]

Inter -American Convention on the Prevention, Punishment, and Eradication of Violence against Women (1994)

The Inter-American Convention on the Prevention, Punishment, and Eradication of Violence against Women primarily focuses on violence against women, making it clear that every woman has the right to be free from violence in both the public and private sphere. This Convention recognizes that women have:

a) the right to have her life respected;

b) the right to have her physical, mental and moral integrity respected

c) the right to personal liberty and security;

d) the right not to be subjected to torture;

e) the rights to have the inherent dignity of her person respected and her family protected;

f) the right to equal protection before the law and of the law;

g) the right to simple and prompt recourse to a competent court for protection against acts that violate her rights;

h) the right to associate freely;

i) the right to freedom to profess her religion and beliefs within the law; and

j) the right to have equal access to the public service of her country and to take part in the conduct of public affairs, including decision-making.

Protection from sexual harassment at the international level

International Labour Organization

At the international level, there are no international conventions which specifically focus on sexual harassment. However the ‘relevant supervisory bodies of the International Labour Organization and the United Nations have found that it is covered as a form of sex discrimination.’ An ILO Committee of experts has addressed sexual harassment under the Discrimination (Employment and Occupation) Convention, 1958 (No. 111).[14] Article 1(a) of this Convention provides that discrimination includes any distinction, exclusion or preference made on the basis of sex which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation.

CEDAW Committee

The CEDAW Committee in its General Recommendation No 19 paid due attention to the problem of sexual harassment. The Committee stated that ‘equality in employment can be seriously impaired when women are subjected to gender-specific violence, such as sexual harassment in the workplace.’ The Committee further stated that sexual harassment includes such unwelcome sexually determined behaviour as physical contact and advances, sexually coloured remarks, showing pornography and sexual demand, whether by words or actions. The Committee explained that such conduct can be humiliating and may constitute a health and safety problem. It is discriminatory when the woman has grounds to believe that her objection would disadvantage her in connection with her employment, including recruitment or promotion, or when it creates a hostile work environment.[15]

Beijing Platform for Action

This platform acknowledges sexual harassment as discrimination and a form of violence against women. It expects governments to enact and enforce laws and develop policies to address sexual harassment and further calls upon civil societies, unions and government employers to advocate for these legislative and policy initiatives.  

Time for Action

Caribbean countries have made some gains in addressing gender-based violence but there is much more to be done. Each country must address the root causes of gender-based violence making it clear that violence is not an ‘ordinary incident of intimacy’. Each individual can help to eliminate or reduce the prevalence of gender-based violence. By arming yourself with knowledge of the laws governing gender-based violence in your country and of the help services available and sharing this information with others you can actively participate in the efforts to remove this scourge from the society.

[1]Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women “Convention of Belém do Pará” Convention (adopted 9 June 1994 at the 24^th Regular Session of the General Assembly to the OAS, entry into force 5 March 1995)

[2] Francois v Attorney-General of Saint Lucia LC 2001 HC 16 (Suit No. 69 of 2001) decided 24 May 2001

[3] Committee against Torture, General Comment No. 2, 18 UN Doc  CAT/C/GC/2 24^th January, 2008

[4] UN Committee for the Elimination of All Forms of Discrimination against Women, ‘General Recommendations No 19, para. 9’ in ‘Note by the Secretariat, Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies’ (12 May 2004) UN Doc HRI/GEN/1/Rev.7

[5] A.T. v. Hungary, communication No. 2/2003, (views adopted on 26 January 2005, thirty-second session) http://www2.ohchr.org/english/law/docs/Case2_2003.pdf accessed 13 October 2010

[6] See Article 24 of the Convention on the Elimination of All Forms of Discrimination against Women (adopted 18 December 1979 by the UN General Assembly, entry into force 3 September 1981) 1249 UNTS 13, Article 7 of the Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women “Convention of Belém do Pará” Convention (adopted 9 June 1994 at the 24^th Regular Session of the General Assembly to the OAS, entry into force 5 March 1995)

[7] See article 154A of the Constitution of the Co-operative Republic of Guyana 1989 as amended by the Constitution (Amendment) (No. 2) Act 2003:10

[8] See Status of signing and ratification of the Convention of Belém do Pará <www.oas.org/cim/english/Laws.Rat.Belem.htm> accessed 1 November 2009; States Parties to the Convention on the Elimination of All Forms of Discrimination against Women <treaties.un.org>accessed 1 November 2009

[9] Concluding comments of the Committee on the Elimination of Discrimination against Women, 35^th session 2006, Saint Lucia, CEDAW/C/LCA/CO/6; Report of the Committee on the Elimination of Discrimination against Women, 26^th session 2002, Trinidad and Tobago, A/57/38 (Part I)

[10] Report of the Committee on the Elimination of Discrimination against Women, 26^th session 2002, Trinidad and Tobago, A/57/38 (Part I)

[11] Concluding comments of the Committee on the Elimination of Discrimination against Women, 35^th session 2006, Saint Lucia, CEDAW/C/LCA/CO/6; Report of the Committee on the Elimination of Discrimination against Women, 26^th session 2002, Trinidad and Tobago, A/57/38 (Part I)

[12] Concluding comments of the Committee on the Elimination of Discrimination against Women, 33^rd session 2005, Guyana, CEDAW/C/GUY/CO/3-6; Concluding comments of the Committee on the Elimination of Discrimination against Women, 35^th session 2006, Saint Lucia, CEDAW/C/LCA/CO/6

[13] [12] Concluding comments of the Committee on the Elimination of Discrimination against Women, 33^rd session 2005, Guyana, CEDAW/C/GUY/CO/3-6

[14] See ILO ‘Sexual Harassment: A question of power relations’ (2000) www.ilo.org/public/english/region/ampro/cinterfor/temas/gender/doc/pacto/sexual.htm

[15] UN Committee on the Elimination of All Forms of Discrimination against Women, ‘General Recommendations No 19, paras 17,18’ in ‘Note by the Secretariat, Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies’ (12 May 2004) UN Doc HRI/GEN/1/Rev.7