Regional human rights systems address violence against women differently largely because different regions suffer from different maladies and issues.
The Inter-American system addressed violence against women earlier than any other region in the world, starting with the creation of the Inter-American Convention on the Prevention, Punishment, and Eradication of Violence Against Women, also known as the Convention of Belém do Pará, adopted in 1994. The Convention of Belém do Pará has been signed and ratified by 32 out of 35 member states of the Organization of American States; an overwhelming majority. This Convention was adopted 15 years after the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), which has been signed by 189 States.
The Convention of Belém do Pará became the first legally binding international treaty to define and criminalize all forms of violence against women, including physical, sexual, and psychological violence perpetrated by State actors and even third-party actors. It establishes that “every woman has the right to the recognition, enjoyment, exercise and protection of all human rights and freedoms embodied in regional and international human rights instruments.” Article 7 of the Convention imposes duties on States to condemn all forms of violence against women and denotes that all States Parties agree to pursue policies to prevent, punish and eradicate such violence. Before this instrument, the Commission and Court came up with creative interpretations of more general human rights treaties to address gender-based violence cases, mostly finding violations of more generic provisions of the American Convention. However, the resulting jurisprudence was inconsistent and did not adequately address the issue of violence against women.
However, this changed in 2001 with Maria da Penha v. Brazil, when the Inter-American Commission addressed, applied, and developed norms laid out in the Convention of Belém do Pará for the first time. In 1983, María da Penha, a Brazilian pharmacist and victim of domestic violence, was shot by her husband leaving her paraplegic. After this attempted murder and a second one a month later, when her husband attempted to electrocute her while bathing, she sought legal separation. The complaint sent to the Commission in 1988 alleged tolerance by the Federative Republic of Brazil for not having taken the necessary effective measures for more than fifteen years to prosecute and punish the aggressor, despite the complaints made. The complaint denounced the violation of Articles 1(1) (Obligation to Respect Rights), 8 (Judicial Guarantees), 24 (Equality Before the Law) and 25 (Judicial Protection) of the American Convention on Human Rights, in relation to Articles II and XVIII of the American Declaration of the Rights and Duties of Man, as well as Articles 3, 4(a), (b), (c), (d), (e), (f), and (g); and Articles 5 and 7 of the Convention of Belém do Pará.
The Commission ultimately held that Brazil violated Article 7(b) of the Convention of Belém of Pará which requires states to apply due diligence to prevent, investigate and impose penalties for violence against women; finding that although Brazil did not ratify the Convention until November 1995, more than twelve years after the attacks upon Ms. da Penha, it could still apply the Convention “because of the ongoing nature of the ‘violation of the right to effective legal procedures, and, consequently, the tolerance that this would imply of violence against women’.”
In the da Penha case, the Commission concluded that the relevant violation occurred as part of a discriminatory pattern regarding tolerance of domestic violence against women in Brazil due to the ineffectiveness of judicial action. Thereafter, the Commission recommended that the State carry out a serious, impartial, and exhaustive investigation to determine the criminal responsibility of the perpetrator, as well as an effective and prompt reparation of the victim. It also stated that the State had an obligation to prevent this degrading practice. Domestic violence has been a very prevalent problem in the Inter-American region, so it is not surprising that da Penha’s case was one of the first cases to draw the system’s attention.
Five years later, the Inter-American Court applied the Convention of Belém do Pará for the first time in Castro-Castro Prison v. Peru (2006). This case refers to the State’s international responsibility over the excessive use of force in an operation in the Miguel Castro-Castro prison in 1992 that resulted in the deaths of dozens of prisoners and even more injuries. These events occurred during an internal armed conflict between Maoist guerilla groups and the Peruvian police and military, led by ex-president Fujimori. The majority of the targeted inmates in Castro-Castro were allegedly connected to the guerilla groups; this group included about 135 women, three of whom were in advanced stages of pregnancy during the attack. In this case, the Court applied the Convention, despite the fact that Perú had not ratified the Convention at the time the facts of the case occurred, the State ratified the Convention in 1996. In its holding, the Court indicated that the State had violated the Convention of Belém do Pará, including Article 7(b), in detriment of the next-of-kin of the 41 dead prisoners and the victims. With this decision, “the Court played a key role in recognizing the disparate impact that armed conflicts and situations of massive human rights violations have on women, particularly with regard to sexual violence, and developing its analysis of State obligations under these circumstances.”
The Inter-American system has even tried to protect women under the American Declaration, when the State is not a party either to the American Convention or the Convention of Belém do Pará. This was seen in Jessica Lenahan (González) v. United States of America (2011). Therein, Lenahan alleged that the US criminal justice system violated her human rights under the American Declaration by failing to protect her and her daughters from acts of domestic violence. Herein, the Commission repeated that the right to equality and non-discrimination contained in Article II of the Declaration is a fundamental principle of the system and the backbone of human rights protection. It stated that gender-based violence is one of the most extreme and pervasive forms of discrimination that severely impairs and nullifies the enforcement of women’s rights. It also indicated that domestic violence has been recognized at the international level as a human rights violation and that various international human rights bodies have considered State failures in the realm of domestic violence as not only discriminatory, but also as violations to the right to life, which is a right protected by the Declaration. The Commission emphasized that the due diligence obligation applies to all OAS Member States, relying on other international instruments. Finally, the Declaration stated that the US had a reinforced duty of due diligence to protect girl-children from harm and from deprivation of their life due to their age and sex, as pertained in Article VII of the Declaration (right to special protection for mothers and children).
Reinforced Due Diligence: Women and Girls
González et al. “Cotton Field” v. Mexico (2009) is a landmark decision that established the legal standard regarding the obligation of states concerning the prevention, investigation and punishment of violence against women and the application of the Convention of Belém do Pará. The González complaint alleged that Mexico was responsible for a series of irregularities and delays in the investigation of the disappearances and subsequent deaths of Laura Berenice Ramos Monárrez (age 17), Claudia Ivette González (age 20), and Esmeralda Herrera Monreal (age 15), in Ciudad Juárez, Mexico. These young women were first reported missing to the authorities by their family members in 2001, and their bodies were found weeks later in a cotton field with signs of sexual abuse and other forms of ill-treatment. The complainants in González were seeking to hold the State accountable for:
“the lack of measures for the protection of the victims, two of whom were minor children, the lack of prevention of these crimes, in spite of full awareness of the existence of a pattern of gender-related violence that had resulted in hundreds of women and girls murdered, the lack of response of the authorities to the disappearance […]; the lack of due diligence in the investigation of the homicides […], as well as the denial of justice and the lack of an adequate reparation.”
The Court recognized how various national and international human rights monitoring mechanisms had been following the situation in Ciudad Juárez and how this situation had received attention from the international community. The González Court mentioned different reports prepared by national and international agencies not only stating the statistics of these disappearances and deaths, but also the age range of the victims. These reports even stated the common factors these murders shared, like how the women were abducted and kept in captivity, reported missing, and, after days or months, found on empty lots with signs of violence, including rape and other types of sexual abuse, torture and mutilation.
The Court relied on precedent, particularly on Maria de Penha v. Brazil (2000), stating that States, in cases of violence against women, in addition to the general obligation established in the American Convention, have an additional obligation reinforced under the Convention of Belém do Pará. Meaning that States have an additional obligation to address these issues more directly, because of the special and differentiated risks that women suffer, as well as the high probability they have of becoming victims of violence.
The Court in González divided the facts of the case in two moments to explain when this duty of due diligence would start. With respect to the first moment, before the disappearance of the victims, the Court found that the failure to prevent the disappearance did not per se result in the State’s international responsibility because, even though México was aware of the situation of risk for women in Ciudad Juárez, it had not established knowledge of a real and imminent danger for the victims in this case. However, with regard to the second moment, before the discovery of the bodies, the Court articulated that the State was aware that there was a real and imminent risk that the victims would be sexually abused, subjected to ill-treatment and killed, meaning that an obligation of strict due diligence arose once their disappearances had been reported. Among its findings, the Court found that the State violated the rights to life, personal integrity and personal liberty recognized in the American Convention, in relation to the general obligation to guarantee contained in Article 1(1) and the obligation to adopt domestic legal provisions contained in Article 2, as well as Article 7(b) and (c) of the Convention of Belém do Pará.
This case led to the conceptualization of what we know today as femicide, gender-based killings. It grabbed global attention, not just because of the overwhelming information and reports, but also because of the Mothers of Juárez (mothers of the victims that became activists and pushed for the investigation of their daughters’ disappearances) and the families of the victims.
Reinforced Due Diligence: Indigenous Women
In 2010, two cases applied the reinforced due diligence standard to acts of violence against indigenous women. Both Rosendo Cantú et al. v. Mexico and Fernández Ortega et al. v. Mexico involved indigenous women who were raped by Mexican military officials and, because of their similarities, the Court decided to address the intersectional factors that came into play. For instance, other than being women, there were some aggravating factors, like the fact that they were indigenous, living in poverty, and in the Rosendo Cantú case, a child. Also, the Rosendo Cantú Court stated that:
as indicated by the Convention of Belém do Pará, […] violence against women constitutes not only a violation of human rights, but is an “offense against human dignity and a manifestation of the historically unequal power relations between women and men,” that “pervades every sector of society, regardless of class, race, or ethnic group, income, culture, level of education, age or religion, and strikes at its very foundation.”
These cases not only addressed the standard of reinforced due diligence, but also focused on other issues including: rape by military officials, rape as torture, rape as a crime not to be prosecuted before military courts, the particular vulnerability of indigenous women and girls who are victims of sexual violence, among other things.
Reinforced Due Diligence: In the Context of Armed Conflict
In 2009, the Court’s judgment in the Las Dos Erres Massacre v. Guatemala case reinforced the decision it had made in the Castro-Castro case. Like it had done previously, the Court denounced violence against women in the context of an internal armed conflict, emphasizing the violations stemming from Guatemalan state actors’ use of sexual violence against women as a method of war. Extended the awareness of the gender-differentiated impacts of internal armed conflicts and included reparations requiring Guatemala to undertake a gender-based analysis of the facts in its investigation.
The Court explained the competence and application of the Convention Belém do Pará. They defended that it was extremely important to apply it in this case because the State had the obligation to investigate all of the events with due diligence, which was pending at the time of recognition of the Court’s contentious jurisdiction (March 1987) and that this obligation was later reaffirmed by the State with the ratification of the Convention on 1995. Because of this, the State had to ensure its compliance as of the moment, even when it had not been adopted by the State at the time of the events of the case.
Reinforced Due Diligence: LGBTI community*
The Court issued its ruling in Vicky Hernández et al. v. Honduras on June 28, 2021, on International LGBT Pride Day, addressing for the first time lethal violence against an LGBTI person, specifically a transgender woman. In this case, Honduras had denied that its police force played any role in Vicky Hernández’s murder, which occurred on June 28, 2009. This case marked the first time the Court addressed the possibility of applying the Convention of Belém do Pará to members of the LGBTI community, specifically transgender woman like Vicky Hernández. It found that the State was responsible for the breach of the obligations established in Article 7(a) of this instrument to the detriment of Vicky Hernández, for the violation of the right to life, and in Article 7(b), to the detriment of her relatives, for not having adequately investigated with the strict due diligence required and free of gender stereotypes.
The majority of the judges held that under current International Law standards, the term “woman” encompassess women in all their diversity, including transgender women. These judges based their decision on General Recommendations 28 (2010) and 35 (2017) of the Committee for the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), as well as on the guidelines redacted by the Follow-Up Mechanism to the Belém do Pará Convention (MESECVI). The Court also considered that there were sufficient elements to conclude that her death was due to her gender identity as a transgender woman and highlighted the State’s reinforced obligations to investigate when a crime is linked to a victim’s gender identity. Further, the Court even explained that the fact that Vicky Hernández was a transgender woman sex worker, who lived with HIV, and defended the rights of transgender women was particularly relevant because these characteristics put Vicky Hernández in a position of immense vulnerability where multiple factors of discrimination converged in an intersectional manner. This was the first time the Court applied the reinforced or strict due diligence standard under the Convention of Belém do Pará, not just to women, but to a person that identified as a woman.
Reinforced Due Diligence: Journalists
In August 2021, the Court added to these legal standards with its decision in the Bedoya Lima et al. v. Colombia case. Journalist Jineth Bedoya Lima, for reasons related to her profession, was kidnapped, tortured and raped. It was alleged that the State failed to adopt adequate and timely measures to protect her and prevent the occurrence of such events. It was alleged that the journalist Jineth Bedoya had been kidnapped in front of a state prison and held for several hours that day while she was carrying out her journalistic work in the framework of an investigation into the confrontation between paramilitaries and members of common criminal groups at the interior of the National Model Prison. Thus, it was argued that the Colombian State was aware of the situation of real and imminent risk in which the journalist found herself and did not adopt measures understood as reasonable to protect her, mostly because of previous attacks she had suffered and reported. Likewise, it was argued that the State was especially obliged to act with due diligence to protect Jineth Bedoya against attacks on her personal security and acts of sexual violence due to the generalized context of sexual violence against women that would have characterized the Colombian armed conflict.
This was the first case to acknowledge that the State had a strict due diligence to prevent and investigate, not just because she was a woman, but also given her work as a journalist. The Court adopted an intersectional approach and highlighted that she was doubly vulnerable for being a journalist and a woman. This approach “shows the way that people’s social identities can overlap, creating compounding experiences of discrimination,” or in this case, violence. A person’s identity can make them more vulnerable and at risk than others. The Court addressed this concept of “intersectionality” for the first time in Gonzales Lluy et al. v. Ecuador, where they stated that her “condition as a girl, woman, person in a situation of poverty and person with HIV” converged and made her suffer a specific form of discrimination that resulted from the intersection of all of these factors of her identity.
An Ongoing Case
Legal standards naturally evolve over time with the hope that new case decisions will strengthen the current system.
In July 2020, the Commission submitted to the Court the case of Brisa Liliana de Ángulo Lozada in respect of Bolivia. This case relates to the lack of protection or prevention, investigation, and sanction for the sexual violence suffered by the victim during her adolescence. According to Bárbara Jiménez Santiago, a human rights lawyer at Equality Now and a member of Brisa’s legal team, this case will make history as the first time an international court has reviewed the legal concept of Estupro. She continued to explain that Estupro “is a discriminatory law that minimizes recognition of the crime of rape against adolescent girls and is rooted in the misogynistic belief that adult men are unable to resist the seductive ways of teenage girls and thus they should be held less culpable for their crimes.” In this case, the Court will have an opportunity to explain the standard reinforced due diligence in more depth if the complainant argues that the State knew that this was a prevalent societal problem that the country has suffered for years, specifically issues of incest and sexual violence.
The legal standard of reinforced due diligence has helped the Court hold States accountable for acts of violence against women. However, the duty to prevent, other than investigate, prosecute, and sanction, is oftentimes criticized as insufficient. One could argue that the duty to prevent should have more teeth. This duty holds States accountable only when a woman has had a previous story of violence or threats, whereas the context of the State has only been a supporting factor. Also, the State must be aware of the “real and imminent danger” a specific individual or group for there to be a violation of this duty. However, it could be argued that States should be held accountable when there is clear and convincing evidence that a certain part of the population, either women in general or women who are members of other vulnerable/minority groups for example, is in danger.
In the Cotton Field case, México should have anticipated the kind of danger these women and girls were facing given that there were vast amounts of local and international reports and the families of the victims were known activists. On the other hand, implementing a stricter duty of prevention in situations like this would impose an incredible burden on the State. Complete prevention is practically impossible, so States would most likely lose cases before the Court. However, imposing this bigger obligation on States would likely obligate them to be more aware of the information they receive from either the international community or local victims and their families. The fear of being prosecuted for not adequately preventing violence against women would compel States to make changes as soon as possible. The U.N. Special Rapporteur on Violence Against Women has previously provided guidelines on the measures States should take to comply with their international obligations of due diligence with regard to prevention.
Finally, the Inter-American system’s intersectional approach and analysis in these cases has been extremely helpful, even other systems around the world are taking it into consideration and applying it. Hopefully, regional systems can keep learning from one another and improve each other.
Author Biography: Sabrina M. Rodríguez is a Moderator of the International Law Society’s International Law and Policy Brief (ILPB) and a J.D. candidate at The George Washington University Law School. She has a Bachelor of Arts in Political Science, with an emphasis in International Relations, and a second concentration in French from the University of Puerto Rico, Río Piedras Campus. She is a joint-degree student, also pursuing a Master’s in International Affairs, with an emphasis in International Security Studies, at the Elliott School of International Affairs.