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| Honour killings and the State The crimes related to honour described in this report are violations of internationally recognized human rights of women for which the state bears responsibility if it systematically fails to exercise due diligence in preventing, investigating and punishing such violence. This chapter outlines the relevant international law on violence against women as a human rights issue and indicates the various areas in which the Government of Pakistan has failed to exercise due diligence in preventing, investigating and punishing such abuses. This includes state indifference to parallel legal regimes affecting women, gender bias in statutory law, and a biased application of the law by the police force and the judiciary. Such indifference allows these killings to continue with virtual impunity. State responsibility for violence against women in the name of honour The understanding of state responsibility for human rights violations has significantly widened in recent years to include not only violations of human rights by the state or its agents but also abuses by private actors. If the state fails to act with due diligence to prevent, investigate and punish abuses, including violence against women in the name of honour, it is responsible under international human rights law.53 The responsibility of states to take action against human rights abuses by private persons is established in all the core human rights treaties. The International Covenant on Civil and Political Rights requires state parties to "ensure" the rights of the Covenant, an obligation which the Human Rights Committee has stated to extend to protecting against acts inflicted by people acting in their private capacity. The UN Convention on the Elimination of All Forms of Discrimination against Women (UN Women's Convention) requires in Article 2(e) that states shall "take all appropriate measures to eliminate discrimination against women by any person, organization or enterprise". The Committee on the Elimination of Discrimination against Women (CEDAW) which monitors the implementation of the UN Women's Convention has noted that "under general international law and specific human rights covenants, States may 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".54 The Declaration on the Elimination of Violence against Women, adopted by the UN General Assembly in 1993 as a "commitment by States in respect of their responsibilities, and a commitment by the international community at large to the elimination of violence against women"55, affirms that states must "exercise due diligence to prevent, investigate and, in accordance with national legislation, punish acts of violence against women, whether those acts are perpetrated by the State or by private persons".56 Radhika Coomaraswamy, the UN Special Rapporteur on violence against women concludes: "In the context of norms recently established by the international community, a State that does not act against crimes of violence against women is as guilty as the perpetrators. States are under a positive duty to prevent, investigate and punish crimes associated with violence against women."57 The standard of due diligence was applied by the Inter-American Court of Human Rights in its judgment in 1988 on the Velásques-Rodríguez case, in which it held a state responsible for human rights abuses even if they were caused by private persons unconnected with the government. The Court stated: "An illegal act which violates human rights and which is initially not directly imputable to the State (for example, because it is an act of a private person or because the person responsible has not been identified) can lead to international responsibility of the State, not because of the act itself but because of the lack of due diligence to prevent the violation or to respond to it as required by the Convention." It spelled out what this duty implies: "The State has a legal duty to take reasonable steps to prevent human rights violations and to use the means at its disposal to carry out a serious investigation of violations committed within its jurisdiction, to identify those responsible, to impose the appropriate punishment and to ensure the victim receives adequate compensation. This obligation implies the duty of the State parties to organize the governmental apparatus and, in general, all the structures through which public power is exercised, so that they are capable of juridically ensuring the free and full enjoyment of human rights." The Court also pointed out that a single violation of human rights or one ineffective investigation does not establish a state's lack of due diligence. It is the seriousness with which a state provides and enforces adequate measures that indicates its due diligence in ending abuses. As the UN Special Rapporteur on violence against women has noted, "the due diligence standard is not limited to legislation or criminalization"58 but encompasses a whole range of approaches including training of state personnel, education, 'demystifying domestic violence' and other measures, each of which, if found an effective tool of preventing domestic violence, the state is obliged to adopt and apply with due diligence. The UN Declaration on the Elimination of Violence against Women sets out in Article 4 a series of judicial, legislative, administrative, educational and other steps that states should take to meet their obligation to end violence against women. The Declaration also calls on states to adopt national plans of action to promote the protection of women against any form of violence. The Beijing Platform of Action sets forth in even more detail steps for governments to take to eliminate violence against women.59 These include inter alia the promotion of an active and visible policy of mainstreaming a gender perspective in all policies and programs related to violence against women, gender awareness raising programs, enactment and enforcement of legislation against perpetrators of practices violative of women's rights and of plans of action to eliminate violence against women. The implementation of such steps is one indicator for measuring the exercise of due diligence.60 State responsibility for abuses of women's rights by private actors also arises from state obligations to ensure non-discrimination and the right to equal protection of law. Under international law, states are under an obligation to ensure protection of human rights to all, without discrimination. States that discriminate in the protection of human rights on a number of specified grounds, including gender, commit a human rights violation. The International Covenant on Civil and Political Rights, for example, obligates state parties, in article 2, to ensure the rights in the Covenant to all in their jurisdiction, without discrimination on various grounds, including sex. Article 3 of the Covenant obligates state parties to ensure the equal rights of men and women in the enjoyment of all the rights set forth in the Covenant. These rights include the right to life (article 6) and the right not to be subjected to torture or cruel, inhuman or degrading treatment (article 7). The Human Rights Committee stated in its General Comment 20 on Article 7 that the state's duty includes protecting against such acts inflicted by people in their private capacity. The Covenant also states that "[a]ll persons shall be equal before the courts and tribunals". Women victims of violence have a right to the enforcement and the protection of the law equal to that of any other victim of violence; if states fail to ensure this, such discriminatory treatment on grounds of gender violates the right to equal protection of law of the women victims concerned. The Convention on the Elimination of All Form of Discrimination against Women in Article 2 requires state parties to end discrimination in all areas, i.e. "to take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices which constitute discrimination against women". The Committee on the Elimination of Discrimination against Women in 1997 qualified honour killings as human rights violations in its consideration of Turkey's periodic report: "The practice of so-called honour killings, based on customs and traditions, was a violation of the right to life and security of persons and therefore must be appropriately addressed under the law" - which law, it had noted earlier, "allowed less rigorous sanctions or penalties for 'honour killings'".61 Some experts, including the Committee on the Elimination of Discrimination against Women in its General Recommendation 19 adopted in 1992, have noted that violence against women, defined as "violence that is directed against a woman because she is a woman or that affects women disproportionately", is itself a form of discrimination and as such falls under the prohibition of gender discrimination.62 Another human rights treaty relevant to domestic violence is the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. In Article 1, it establishes state responsibility for acts of torture and ill-treatment by private actors if carried out with the "consent or acquiescence of a public official". Scholars have stated that all the elements of torture can be present in domestic violence. It may cause severe physical and/or mental pain, and may be intentionally inflicted, for a specific purpose. There would be official responsibility, whether active or passive, if states tacitly condone domestic violence by not exercising due diligence and equal protection in preventing and punishing domestic violence. The UN Special Rapporteur on violence against women recommends: "The argument that domestic violence should be understood and treated as a form of torture and, when less severe, ill-treatment, is one that deserves consideration by the rapporteurs and treaty bodies that investigate these violations together perhaps with appropriate NGO experts and jurists."63 Honour killings were addressed by Asma Jahangir, the UN Special Rapporteur on Extrajudicial, Arbitrary and Summary Executions in 1999 in her report to the UN Commission on Human Rights. She dealt with traditional practices and customs affecting the right to life as falling within her mandate when condoned by the state. She took note of "... certain traditional practices which, when condoned or ignored by the authorities, may constitute violations of the right to life".64 As examples of agents of the state condoning such practices, her report cites police failing to intervene to stop honour killings, and the judiciary viewing defence of family honour as a mitigating circumstance when sentencing men who had killed female relatives in such contexts. The Special Rapporteur on the Independence of Judges and Lawyers expressed "grave concern" about this in his 1999 report to the Commission and pledged to work with Asma Jahangir to study this phenomenon and report their findings to the next session of the Commission. Grave concern about honour killings was also expressed by the Special Rapporteur on violence against women in her 1999 report to the Commission. Another human rights treaty relevant to violence against girls under the age of 18 is the Convention on the Rights of the Child which has been ratified by every state but two.65 The Convention in article 19(1) obligates states to protect children from violence, injury or abuse inflicted in the private realm, including by parents, legal guardians or other persons who have the care of a child. "State parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child."
53
Violence against women in the home was explicitly acknowledged as a human
rights concern in 1986 when the UN Economic and Social Council recognized
violence in the family as "a grave violation of the rights of
women". In 1992, the Committee on the Elimination of Discrimination
against Women (CEDAW) noted in General Recommendation 19 that gender-based
violence impairs or nullifies the following rights: a.
The right to life;
54
CEDAW, General Recommendation 19. 55
Preamble, Declaration on the Elimination of Violence against Women. 56
Article 4(c). 57
UN Doc. E/CN.4/1995/42, para 72. She added that "this emergence of
State responsibility for violence in society plays an absolutely crucial
role in efforts to eradicate gender-based violence and is perhaps one of
the most important contributions of the women's movement to the issue of
human rights", UN Doc. E/CN.4/1995/42, para 107. 58
UN Doc. E/CN.4/1996/53, para 141. 59
UN Doc. A/CONF.177/20 (1995), paras. 124-130. 60
In her report to the 1999 session of the UN Commission on Human Rights,
the UN Special Rapporteur on violence against women listed eight questions
she has been posing to states to assess their adherence to the due
diligence standard in addressing violence against women by private actors.
See UN Doc. E/CN.4/1999/68, para 25. 61
UN Doc. A/52/38, paras 179 and 195. 62
General Recommendation 19 of CEDAW, UN Doc. A/47/38, para 31. 63
UN Doc. E/CN.4/1996/53, para 50. 64
UN Doc. E/CN.4/1999/39. 65
The United States and the collapsed state of Somalia. Amnesty International |
