DUE DILIGENCE PRINCIPLE

Similar documents
Resolution adopted by the General Assembly. [on the report of the Third Committee (A/65/456/Add.2 (Part II))]

A/HRC/22/L.13. General Assembly. United Nations

@The Human Rights of Women in the United Nations: Developments

Chapter 15 Protection and redress for victims of crime and human rights violations

Submission to the UN Committee against Torture. List of Issues Prior to Reporting for Somalia

CONCEPT NOTE: Thematic briefing: Protecting women from violence through the UN Convention Against Torture

Human Rights Council. Protection of human rights and fundamental freedoms while countering terrorism

Concluding observations on the third periodic report of Suriname*

30/ Human rights in the administration of justice, including juvenile justice

Resolution adopted by the General Assembly on 18 December [on the report of the Third Committee (A/68/456/Add.2)]

Resolution adopted by the Human Rights Council on 29 September /16. Human rights in the administration of justice, including juvenile justice

Argentina, Chile, Ecuador, Guatemala, Indonesia, Mexico, Turkey and Uruguay: revised draft resolution

Concluding observations on the fourth periodic report of Lithuania*

Resolution adopted by the General Assembly on 18 December [on the report of the Third Committee (A/69/488/Add.2 and Corr.1)]

Médecins du Monde Greek Delegation

25/ The promotion and protection of human rights in the context of peaceful protests

NATIONS UNIES HAUT COMMISSARIAT DES NATIONS UNIES AUX DROITS DE L HOMME UNITED NATIONS OFFICE OF THE UNITED NATIONS HIGH COMMISSIONER FOR HUMAN RIGHTS

MEXICO: MEMORANDUM FOR THE PRESIDENT-ELECT HUMAN RIGHTS RECOMMENDATIONS FOR THE NEXT GOVERNMENT

Concluding observations on the fifth periodic report of Romania*

REFERENCE: UA G/SO 218/2 G/SO 214 (56-23) G/SO 214 (106-10) G/SO 214 (78-15) G/SO 214 (53-24) G/SO 214 (89-15) SAU 2/2012

Castan Centre for Human Rights Law Monash University Melbourne. Submission to the LEGAL AND CONSTITUTIONAL AFFAIRS REFERENCES COMMITTEE

Concluding observations on the report submitted by Cuba under article 29 (1) of the Convention*

What Are Human Rights?

The following resolution was adopted without a vote by the General Assembly on 19 December 2006, as resolution 61/143

amnesty international

Concluding observations on the second periodic report of Cambodia*

International covenant on civil and political rights CONSIDERATION OF REPORTS SUBMITTED BY STATES PARTIES UNDER ARTICLE 40 OF THE COVENANT

General Recommendations of the Special Rapporteur on torture 1

A/HRC/32/L.5/Rev.1. General Assembly. ORAL REVISION 1 July. United Nations

Lawyer of the First Hour under the Swiss Criminal Procedure Code

Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment

Castan Centre for Human Rights Law Monash University Melbourne

CONSULTATIVE COUNCIL OF EUROPEAN PROSECUTORS (CCPE)

Opinions adopted by the Working Group on Arbitrary Detention at its seventy-eighth session, April 2017

UNITED NATIONS OFFICE OF THE UNITED NATIONS HIGH COMMISSIONER FOR HUMAN RIGHTS NATIONS UNIES HAUT COMMISSARIAT DES NATIONS UNIES AUX DROITS DE L HOMME

ADVANCE UNEDITED VERSION

Concluding observations on the third periodic report of the Republic of Moldova*

List of issues prior to submission of the seventh periodic report of New Zealand *

Adjudication of petitions for protection orders in domestic violence cases in Kosovo

Declaration on the Protection of all Persons from Enforced Disappearance

List of issues prior to submission of the seventh periodic report of New Zealand*

Columbia University Graduate School of Arts and Sciences Human Rights Studies Master of Arts Program

International covenant on civil and political rights CONSIDERATION OF REPORTS SUBMITTED BY STATES PARTIES UNDER ARTICLE 40 OF THE COVENANT

and the human rights of victims Victim Support Annual Conference

ADVANCE UNEDITED VERSION

International Covenant on Civil and Political Rights 1 Adopted 16 December 1966 Entered into force 23 March 1976

Statement by Mr. Juan Méndez SPECIAL RAPPORTEUR ON TORTURE AND OTHER CRUEL, INHUMAN OR DEGRADING TREATMENT OR PUNISHMENT

List of issues in relation to the sixth periodic report of Mongolia*

Consideration of reports submitted by States parties under article 19 of the Convention. Concluding observations of the Committee against Torture

Bi-Annual Report on Human Rights in Haiti July December 2013 Executive Summary June 2014

Follow this and additional works at:

LIBERTY AND SECURITY OF THE PERSON

International covenant on civil and political rights CONSIDERATION OF REPORTS SUBMITTED BY STATES PARTIES UNDER ARTICLE 40 OF THE COVENANT

Successful legal strategies for addressing VAW and recommendations to governments

State Responsibility for Acts of Violence Against Women By Private Actors

Widely Recognised Human Rights and Freedoms

Joint study on global practices in relation to secret detention in the context of countering terrorism. Executive Summary

Ending Violence against Women in Indonesia: State Policy and Practice

31/ Protecting human rights defenders, whether individuals, groups or organs of society, addressing economic, social and cultural rights

General information on the national human rights situation, including new measures and developments relating to the implementation of the Covenant

CCPR/C/USA/Q/4. International Covenant on Civil and Political Rights. United Nations

Concluding observations on the second periodic report of Greece*

The International Human Rights Framework and Sexual and Reproductive Rights

International Human Rights Law & The Administration of Justice: Issues & Challenges

The rights of non-citizens. Joint Statement addressed to the Committee on the Elimination of Racial Discrimination

Convention on the Elimination of All Forms of Discrimination against Women

Consideration of reports submitted by States parties under article 19 of the Convention. Concluding observations of the Committee against Torture

Concluding observations on the third periodic report of Belgium*

Concluding observations on the sixth periodic report of Ukraine

Concluding observations of the Human Rights Committee. Consideration of reports submitted by States parties under article 40 of the Covenant

LEGAL RIGHTS - CRIMINAL - Right Against Self-Incrimination

ADVANCE QUESTIONS TO IRAN, ISLAMIC REPUBLIC OF- ADD.1

B. The transfer of personal information to states with equivalent protection of fundamental rights

Violence against women as a human rights violation and a barrier to the effective exercise of citizenship

Proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

Chapter 8 International legal standards for the protection of persons deprived of their liberty

Concluding observations on the combined sixth and seventh periodic reports of Luxembourg*

This publication is produced by the Office of the United Nations High Commissioner for Human Rights on the occasion of the sixtieth anniversary of

Ensuring protection European Union Guidelines on Human Rights Defenders

UNITED NATIONS OFFICE OF THE UNITED NATIONS HIGH COMMISSIONER FOR HUMAN RIGHTS NATIONS UNIES HAUT COMMISSARIAT DES NATIONS UNIES AUX DROITS DE L HOMME

Legal tools to protect children

Consideration of reports submitted by States parties under article 40 of the Covenant. Concluding observations of the Human Rights Committee

Chapter 16: Right to Review the Legality of Any Deprivation of Liberty

UGANDA UNDER REVIEW BY UNITED NATIONS UNIVERSAL PERIODIC REVIEW:

Official Journal of the European Union. (Legislative acts) DIRECTIVES

Concluding observations on the combined fifth and sixth periodic reports of Portugal*

Goal 5 Achieve gender equality and empower all women and girls

Case Summary C.K. et al v the Commissioner of Police/Inspector General of the National Police Service et al Petition no. 8 of 2012

List of issues in relation to the initial report of Sierra Leone (CCPR/C/SLE/1)*

INTER-AMERICAN COMMISSION OF WOMEN. Mexico D.F., Mexico 23 September 2010 Original: Textual NATIONAL REPORT: JAMAICA

JAMAICA The Braeton Seven A Justice System on Trial Questions and Answers

Government Gazette REPUBLIC OF SOUTH AFRICA

Concluding observations on the initial periodic report of Malawi*

Consideration of reports submitted by States parties under article 40 of the Covenant. Concluding observations of the Human Rights Committee

Sri Lanka Advocacy Network

UNITED NATIONS HUMAN RIGHTS COUNCIL. Working Group on Arbitrary Detention

PRESS FREEDOM IN AFRICA How can States achieve compliance with standards set by the African courts and African Union, online and offline

Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

Convention on the Elimination of All Forms of Discrimination against Women

Concluding observations on Cabo Verde in the absence of a report*

Transcription:

STATE OBLIGATION Traditionally States are responsible for violations of human rights it committed. Gradually international law evolved to:- Oblige States to protect, promote and fulfil human rights. Hold States accountable for violations of human rights, whether committed by the State actors or non-state actors. Obligates States to take reasonable action to prevent human rights abuses before they occur and to effectively respond when they occur. This principle, known as the due diligence principle, is important in violence against women given that: most acts of violence against women are committed by non-state actors; and the public/private divide long posed obstacles to States entering the socalled private realm to end VAW.

States have an obligation to : Ø Prevent acts of violence against women; Ø Protect the victims/survivors; Ø Prosecute and investigate the incidents of violence; Ø Punish the perpetrators; and Ø Provide redress to the victim/survivors for the harm suffered

Velasquez Rodriguez v Honduras (1988), Inter-American Ct HR An illegal act which violates human rights and which is initially not directly imputable to a State (for example, because it is the 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 an act itself, but because of the lack of due diligence to prevent the violation or to respond to it as required by the Convention. Maria da Penha v Brazil (2001), Inter-American Court HR The failure to prosecute and convict the perpetrator under these circumstances is an indication that the State condones the violence suffered by Maria da Penha. Given the fact that the violence suffered by Maria da Penha is part of a general pattern of negligence and lack of effective action by the State in prosecuting and convicting aggressors, it is the view of the Commission that this case involves not only failure to fulfill the obligation with respect to prosecute and convict, but also the obligation to prevent these degrading practices.

A.T. v. Hungary (2003), CEDAW Committee 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. States must provide reparation [to A.T.] proportionate to the physical and mental harm undergone and to the gravity of the violations of her rights Fatima Yildirim v. Austria (2007), CEDAW Committee The Committee considers that the facts disclose a situation that was extremely dangerous to Fatma Yildirim of which the Austrian authorities knew or should have known, and as such the Public Prosecutor should not have denied the requests of the Police to arrest Irfan Yildirim and place him in detention. The Committee considers the failure to have detained Irfan Yildirim as having been in breach of the State party s due diligence obligation to protect Fatma Yildirim.

Osman v. UK (1998) ECHR know or should have known real and immediate risk Opuz v. Turkey (2009) ECHR balancing right of safety and security v. right to family and privacy domestic violence can approximate cruel and inhuman treatment and in certain instances, torture

Campo Algodonero v. Mexico (2009), Inter-American Court of HR Given that the State knew of the existence of a pattern of violence that has killed hundreds of women and girls, the State did not act with the required due diligence to prevent the death and abuse suffered by the victims adequately and did not act, as could reasonably be expected, in accordance with the circumstances of the case, to end their deprivation of liberty. Jessica Lenahan v. United States (2011), Inter-American Commission The Commission underscores that the inter-american system has affirmed for many years that it is not the formal existence of judicial remedies that demonstrates due diligence, but rather that they are available and effective. Therefore, when the State apparatus leaves human rights violations unpunished and the victim s full enjoyment of human rights is not promptly restored, the State fails to comply with its positive duties under international human rights law. The same principle applies when a State allows private persons to act freely and with impunity to the detriment of the rights recognized in the governing instruments of the inter-american system.

Four principles on due diligence principle (Jessica Lenahan) 1. A State may incur international responsibility for failing to act with due diligence to prevent, investigate, sanction and offer reparations for acts of violence against women; a duty which may apply to actions committed by private actors in certain circumstances. 2. This obligation may require States to modify the social and cultural patterns of conduct of men and women and to eliminate prejudices, customary practices and other practices based on the idea of the inferiority or superiority of either of the sexes, and on stereotyped roles for men and women. 3. Establishes the link between the duty to act with due diligence and the obligation of States to guarantee access to adequate and effective judicial remedies for victims and their family members when they suffer acts of violence 4. Certain groups of women are at particular risk for acts of violence due to having been subjected to discrimination based on more than one factor, which must be considered by States in the adoption of measures to prevent all forms of violence.

General Recommendation no. 19, CEDAW Committee (1992) 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. United Nations Declaration on the elimination of violence against women (1993) States are urged to [e]xercise 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

Human Rights Council Resolution, e.g. 14/12 (2010) Stresses that States have the obligation to promote and protect all human rights and fundamental freedoms of women and girls, and must exercise due diligence to prevent, investigate, prosecute and punish the perpetrators of violence against women and girls and provide protection to the victims, and that failure to do so violates and impairs or nullifies the enjoyment of their human rights and fundamental freedoms; General Assembly Resolution, e.g. A/RES/67/144 (2013) Also stresses that States have the obligation, at all levels, to promote and protect all human rights and fundamental freedoms for all, including women and girls, and must exercise due diligence to prevent, investigate, prosecute and punish the perpetrators of violence against women and girls and eliminate impunity

Inter-American Convention of Belem do Para (1994) State parties shall condemn all forms of violence against women and apply due diligence to prevent, investigate and impose penalties for violence against women. Council of Europe s Convention on preventing and combating violence against women and domestic violence (2010). Article 5 1 Parties shall refrain from engaging in any act of violence against women and ensure that State authorities, officials, agents, institutions and other actors acting on behalf of the State act in conformity with this obligation. 2 Parties shall take the necessary legislative and other measures to exercise due diligence to prevent, investigate, punish and provide reparation for acts of violence covered by the scope of this Convention that are perpetrated by non-state actors.

BOTTOM LINE: Ø State has a positive obligation to act ; Ø To prevent, protect, prosecute, punish and provide redress for acts of VAW ; Ø Whether committed by the State or non-state actors ; Ø In a holistic. Comprehensive. Integrated. Multi-sectoral manner; and Ø In line with international human rights norms and standards.