Ssrn-Id3067672 Caroline Bettinger-Lopez

Suggested citation: Caroline Bettinger-Lopez, Violence against Women Normative Developments in
the Inter-American Human Rights System (Chapter 6) in THE NORMATIVE GAPS IN THE LEGAL
PROTECTION OF WOMEN AND GIRLS FROM VIOLENCE: PUSHING THE FRONTIERS OF INTERNATIONAL
LAW, eds. Rashida Manjoo and Jackie Jones, Routledge Press (forthcoming April 2018).
Chapter 6. Violence against Women Normative Developments in the Inter-

American Human Rights System
By Caroline Bettinger-López 1
The Inter-American human rights system is arguably the world’s most well-developed
and effective human rights system in the violence against women context. The Inter-
American Convention on the Prevention, Punishment and Eradication of Violence
against Women (known familiarly as the “Belém do Pará Convention”), adopted in
1994, is the first specific instrument adopted on violence against women (VAW), and
is the most ratified instrument in the Inter-American system. Other regional human
rights instrument also recognize several core rights related to VAW, including the
rights to life, non-discrimination, equal protection, physical and mental integrity,
personal liberty, dignity, privacy, family, and access to justice. The Belém do Pará
Convention builds upon this foundation and provides specific norms applicable to the
context of VAW. It is the only human rights treaty directed solely toward eradicating
violence against women that includes an individual complaint mechanism. Despite
serious limitations, the Inter-American system has an increasingly-effective track
record.
The Inter-American system directly addresses issues of state responsibility for
responding to violence against women, broadens possibilities of a shared
understanding for what it means to exercise due diligence in VAW cases, creates
certainty in standards, and has served as a mobilizing force for advocates and
survivors. Despite these positive developments, there are legitimate concerns about
the norms, structure, and position of the Inter-American system. Any effort to
Electronic copy available at: https://ssrn.com/abstract=3067672

replicate the Belém do Pará Convention on the international level would be well-
served by reviewing the successes, challenges, and limitations of the Inter-American
system’s experience in the VAW context.
6.1 Introduction
The Inter-American Convention on the Prevention, Punishment and Eradication of
Violence against Women (known familiarly as the “Belém do Pará Convention”),
adopted in 1994, is the first specific instrument adopted on violence against women
(VAW), and is the most ratified instrument in the Inter-American system. Thirty-two
of the 35 member states of the Organization of American States (OAS) have ratified
it—the United States, Canada, and Cuba being the outliers. The Convention
references and complements other regional human rights instruments, such as the
Charter of the Organization of American States, the American Convention on Human
Rights, the American Declaration on the Rights and Duties of Man, and the Inter-
American Convention to Prevent and Punish Torture. All of these treaties recognize
several core rights related to VAW, including the rights to: life, non-discrimination,
equal protection, physical and mental integrity, personal liberty, dignity, privacy,
family, and access to justice. The Belém do Pará Convention builds upon this
foundation and provides specific norms applicable to the context of VAW. It is the
only human rights treaty directed solely toward eradicating violence against women
that includes an individual complaint mechanism.
Electronic copy available at: https://ssrn.com/abstract=3067672

6.2 The Belém do Pará Convention: Anatomy
The Belém do Pará Convention defines VAW as “any act or conduct, based on
gender, which causes death or physical, sexual or psychological harm or suffering to
women, whether in the public or the private sphere” (art. 1). This definition of VAW
“shall be understood to include physical, sexual and psychological violence:
(a) that occurs within the family or domestic unit or within any other
interpersonal relationship, whether or not the perpetrator shares or has
shared the same residence with the woman, including, among others, rape,
battery and sexual abuse;
(b) that occurs in the community and is perpetrated by any person, including,
among others, rape, sexual abuse, torture, trafficking in persons, forced
prostitution, kidnapping and sexual harassment in the workplace, as well
as in educational institutions, health facilities or any other place; and
(c) that is perpetrated or condoned by the state or its agents regardless of
where it occurs” (art. 2). 2
After defining VAW and clarifying that it can occur in both private and public spaces
and be perpetrated by both state or non-state actors (Chapter I), the Belém do Pará
Convention enumerates specific rights that are protected (Chapter II) and specific
duties of States Parties (Chapter III). “Every woman,” the Convention states, “has the
right to be free from violence in both the public and private spheres” (art. 3) and the
“right to the recognition, enjoyment, exercise and protection of all human rights and
freedoms embodied in regional and international human rights instruments” (art. 4).
These rights include, amongst others, the rights of a woman: to life; to have her
3
physical, mental and moral integrity respected; to personal liberty and security; not to
be subjected to torture; to have the inherent dignity of her person respected and her
family protected; to equal protection before the law and of the law, to judicial
recourse against acts that violate her rights; and to freely associate (art. 4). The Belém
do Pará Convention states that women’s civil, political, economic, social, and cultural
rights are impeded by violence (art. 5). The Convention expressly recognizes the
relationship between gender violence and discrimination, indicating that such
violence is a manifestation of historically unequal power relationships between
women and men (preamble and art. 6). It emphasizes that women’s right to a life free
of violence includes the right “to be free from all forms of discrimination” and “to be
valued and educated free of stereotyped patterns of behavior and social and cultural
practices based on concepts of inferiority or subordination” (art. 6).
The Belém do Pará Convention also obliges States Parties to take measures to respect,
protect, and ensure the enjoyment of these rights (arts. 7-9). Article 7 states: “The
States Parties . . . agree to pursue, by all appropriate means and without delay,
policies to prevent, punish and eradicate such violence . . . .” (art. 7). Under this
provision, States must immediately commit to refrain from engaging in acts of
violence against women; adopt appropriate legal, legislative, and administrative
measures; apply due diligence principles to prevent, investigate, and punish violence
against women; and ensure effective access to effective remedies. While Article 7
provides for rights to be immediately realized, Article 8, by contrast, provides for
rights to be progressively realized: “[t]he States Parties agree to undertake
progressively specific measures,” including programs that promote awareness, modify
social and cultural patterns, promote education and training, provide social services
4
and readjustment programs for survivors, encourage appropriate media guidelines that
enhance respect for women’s dignity, undertake research and data collection, and
foster international cooperation on violence against women. Advocates have argued
that the programs outlined in Article 8 “give definition and specificity to the legal,
legislative, policy, and administrative measures” for eradicating violence against
women specified in Article 7. (Amnesty International 2009).
Article 9 of the Belém do Pará Convention reflects the notion that not all women
experience gender-based violence and discrimination equally. It reads: “the States
Parties shall take special account of the vulnerability of women to violence by reason
of among others, their race or ethnic background or their status as migrants, refugees
or displaced persons. Similar consideration shall be given to women subjected to
violence while pregnant or who are disabled, of minor age, elderly, socio-
economically disadvantaged, affected by armed conflict or deprived of their freedom”
(art. 9). Known in critical legal theory as “intersectionality,” this concept emphasizes
that systems of oppression and discrimination (based on, e.g., race, gender, class,
ability, sexual orientation, national origin, etc.) interact on multiple and simultaneous
levels, and that classical conceptions of inequality and oppression—such as racism,
sexism, xenophobia, and homophobia—do not act independently of one another, but
rather, intersect along multiple axes of discrimination. (Crenshaw 1991).
Finally, the Belém do Pará Convention specifically defines the compliance
mechanisms designed to supervise enforcement of the treaty by States Parties
(Chapter IV). States Parties are directed to “include in their national reports to the
Inter-American Commission of Women information on measures adopted” to comply
5
with the Convention (art. 10). States Parties and the Inter-American Commission of
Women may request advisory opinions on the interpretation of the Convention from
the Inter-American Court of Human Rights (art. 11). And, the Belém do Pará
Convention uniquely—and in contrast to the Council of Europe Convention on
preventing and combating violence against women and domestic violence (known
familiarly as the “Istanbul Convention”)—contains an individual complaint
mechanism. Article 12 of the Convention allows for individual and collective
petitions to the IACHR alleging violations of Article 7, which obligates States Parties
to undertake specific and timely actions “to prevent, punish and eradicate” all forms of
violence against women.
The optional protocol to the United Nation’s Convention on the Elimination of all
forms of Discrimination against Women (CEDAW) (which requires separate
ratification by a state party to that convention) also allows for the submission to the
CEDAW Committee of individual and collective petitions alleging discrimination.
Because the scope of such complaints is limited to discrimination, however, several
types of substantive rights violations—concerning, e.g., the rights to life, freedom from
torture, privacy, dignity, due process, education, employment, etc.—are arguably
excluded. While the subject matter of the Belém do Pará Convention is limited to
violence against women, the definition of violence against women contained in the
convention is broad in scope, as are the remedies. More information on the OAS’s
compliance mechanisms is contained in the next section.
6.3 OAS Compliance Mechanisms Related to VAW
6
In addition to the legal norms described above, the OAS provides for several
compliance mechanisms related to States Parties’ VAW-related obligations. The four
most relevant compliance mechanisms are: the Inter-American Commission of
Women (CIM); the Mechanism to Follow-Up on Implementation of the Inter-
American Convention on the Prevention, Punishment, and Eradication of Violence
Against Women (MESECVI); the Inter-American Commission on Human Rights
(IACHR or Commission); and the Inter-American Court of Human Rights (IACtHR
or Court). The Commission and Court together make up the human rights protection
system of the OAS.
6.3.1 The Inter-American Commission of Women (CIM)
The Inter-American Commission on Women (CIM), which prepared the Belém do
Pará Convention between 1990 and 1994, was founded in 1928 and was the first
intergovernmental body established to promote the civil and political rights of
women. It is composed of delegates from all 35 OAS Member States (except Cuba),
who are designated by each State. Under Article 10 of the Belém do Pará Convention,
States Parties must present national reports to the CIM on measures adopted to
implement the convention. This process resembles the reporting procedure of the
U.N. treaty monitoring bodies.
Under Article 11 of the Belém do Pará Convention, the CIM is also empowered to
request advisory opinions from the Court on interpretation of the Convention. It has
not done so to date.
7
6.3.2 The Mechanism to Follow-Up on Implementation of the Inter-
American Convention on the Prevention, Punishment, and Eradication
of Violence Against Women (MESECVI)
The Mechanism to Follow Up on Implementation of the Convention (MESECVI) was
created in 2004 to examine the progress of States Parties toward achieving the goals
of the Belém do Pará Convention and to address concerns related to non-compliance.
MESECVI consists of two components: the Conference of Member States and the
Committee of Experts. The Conference of Member States is the political organ of
MESECVI and is composed of representatives of States Parties. The Committee of
Experts is composed of independent experts and is the technical organ of MESECVI
that receives and evaluates state reports and issues recommendations. MESECVI has
issued two hemispheric reports—in 2008 and 2012—on the implementation of the
Belém do Pará Convention, based on survey responses by 28 States as well as shadow
reports presented by nongovernmental organizations. The MESECVI suffers from a
lack of resources, particularly compared with other comparable follow-up
mechanisms in the OAS (such as Mechanism for Follow-Up on the Implementation of
the Inter-American Convention Against Corruption (“MESICIC”) and of the
Multilateral Evaluation Mechanism (“MEM”)). This is principally because the United
States and Canada—and their considerable resources—are not part of MESECVI,
whereas these countries are part of the MESICIC and MEM.
6.3.3 Inter-American Commission on Human Rights (IACHR or
Commission)
8
The IACHR is an autonomous, quasi-judicial body of the Organization of American
States (“OAS”) whose mission is to promote and protect human rights in the region.
Based in Washington, D.C., the IACHR is composed of seven independent members
who are elected to four year terms and serve in their individual capacities. In
carrying out its mandate, the Commission may refer to all of the regional human
rights instruments within the OAS, including those discussed above. The IACHR’s
work in the VAW arena focuses on five compliance mechanisms: (1) the individual
petition and case system; (2) precautionary measures; (3) the rapporteurship on the
rights of women; (4) thematic reports and hearings; and (5) country visits, reports,
and hearings. (Bettinger-Lopez 2009).
6.3.3.1 Individual Petition and Case System
Any person, group, or organization may file a petition before the IACHR alleging a
violation of human rights against one or more OAS Member States. The IACHR will
investigate the matter and determine, after a two-phase process involving
admissibility and merits phases, whether the State violated one or more of the
applicable regional human rights treaties. The IACHR may hold case-related public
hearings or private working meetings during any phase of the case. If the IACHR
finds a violation of a treaty, it will issue a report on its legal conclusions and
recommendations for remedies and non-repetition. If a State Party does not comply
with the IACHR’s recommendations, the IACHR may submit the case to the Inter-
American Court of Human Rights (IACtHR), but only if the State has ratified the
American Convention on Human Rights (ACHR) and recognized the Court’s
9
jurisdiction. The IACtHR and the jurisprudence of the IACHR and IACtHR are
discussed further below.
The IACHR has jurisdiction, pursuant to Article 12 of the Belém do Pará
Convention, to find violations of the immediate obligations to prevent, punish and
eradicate VAW contained in Article 7 of that treaty. The Commission does not,
however, have jurisdiction over complaints of violations of Article 8 (progressive
obligations) or Article 9 (“intersectionality” obligations).
6.3.3.2 Precautionary Measures
In serious and urgent situations presenting a risk of irreparable harm to persons or to
subject matter of a pending petition or case, the IACHR may, on its own initiative or
at the request of a party, request that a State adopt precautionary measures pursuant
to Article 25 of the Rules of Procedure of the IACHR. The measures may be of an
individual or a collective nature, to prevent irreparable harm to persons due to their
association with an organization, a group, or a community with identified or
identifiable members. The granting of precautionary measures and their adoption by
the State does not constitute a prejudgment on the violation of the rights protected
by regional treaties.
As discussed below, the IACHR has selectively invoked the precautionary measures
mechanism in cases involving VAW. Most of these cases involve acts of violence
committed by state actors. The Commission’s 2013 precautionary measures ruling
on sexual violence in post-earthquake Haiti marked the first time that the
Commission recognized the state obligation to prevent rape when committed by a
private actor.
10
6.3.3.3 Rapporteurship on the Rights of Women
The IACHR created the Office of the Rapporteur on the Rights of Women in 1994
with the initial task of analyzing the extent to which laws and practices involving
women’s rights in the OAS Member States comply with the general obligations set
forth in regional human rights instruments. Since then, the Rapporteurship has
contributed to the development of norms and jurisprudence on women’s rights
generally, and specifically on the issue of VAW. The Rapporteurship monitors VAW
across the region through engagement with NGOs, onsite visits, press releases, and
country and thematic reports; advises the IACHR in the handling of precautionary
measures and individual complaints involving violations of women’s rights; and
assists in the preparation of reports on cases involving the rights of women and in the
development of a new jurisprudence with a gender perspective. The Office of the
Rapporteur has undertaken initiatives to address the problem of discrimination against
women in the exercise of their civil, political, economic, social, and cultural rights.
6.3.3.4 Thematic Reports and Hearings
The IACHR regularly publishes thematic reports and holds public thematic hearings
on VAW in the region or in specific OAS member state(s). These reports and
hearings will often reflect issues that have been brought to the Commission’s
attention through the individual case and petition system, or through the
Rapporteurship on Women’s engagement with NGOs and States.
The IACHR website lists approximately 150 thematic hearings between 1996-2017
on the rights of women, a substantial number of which focus on VAW. Examples of
thematic hearings on VAW include: Reports of Sexual Violence against Adolescents
11
in Bolivia (2017), Reports of Obstetric Violence in Costa Rica (2015), Challenges of
Protecting Women from Violence 20 Years after the Belém do Pará Convention
(2014), Situation of Violence against Women in the Americas (2013), Complaints
regarding Missing and Murdered Indigenous Women and Girls in British Columbia,
Canada (2012), Obstacles to the Effective Implementation of the Maria da Penha
Law, Brazil (2011), Violence against Indigenous Women in the United States (2011),
Institutional Violence against Women in Mexico (2009), Situation of Violence and
Discrimination Against Women in Haiti (2008), Domestic Violence in Chile (2007),
Follow-up to the Report on Situation of Violence and Discrimination against Women
in Ciudad Juarez, Mexico (2003), and Situation of Violence against Women in the
Hemisphere (2002).
The IACHR has published seven reports that address VAW: Access to Justice for
Women Victims of Sexual Violence: Education and Health (2011); Access to Justice
for Women Victims of Sexual Violence in Mesoamerica (2011); The Right of
Women in Haiti to be Free from Violence and Discrimination (2009); Report on
Citizen Security and Human Rights (Chapter IV(A)(4): Reinforced obligations in
the area of violence against women pursuant to the Convention of Belém do Pará)
(2009); Access to Justice for Women Victims of Violence in the Americas (2007);
Violence and Discrimination Against Women in the Armed Conflict in Colombia
(2006); and The Situation of the Rights of Women in Ciudad Juárez, Mexico: The
Right to be Free from Violence and Discrimination (2003).
6.3.3.5 Country Visits, Reports, and Hearings
The IACHR considers VAW not only in the thematic context, but also in the more
general context of analyzing OAS Members States’ compliance with their human
12
rights obligations. This takes place through country visits by IACHR commissioners
to investigate the general situation of human rights, including the issue of VAW;
reports that the IACHR publishes about the general human rights situation in a
particular country, where VAW is addressed within a larger human rights analysis;
and public hearings the IACHR hosts on the general human rights situation in a given
country or region, where VAW is one of several human rights violations that are
addressed. Two illustrative examples follow below.
a. Sexual Violence in Haiti
In October 1994, the Commission carried out an on-site visit to Haiti and
subsequently issued a groundbreaking report in 1995 that considered human rights
violations, including sexual violence, against women and children following the 1991
coup d’état that overthrew President Jean Claude Aristide. (Report on the Situation of
Human Rights in Haiti 1995). In this context, the Commission found, rape was used
an instrument of political violence and terror. The Commission’s 1995 report was the
first time an international human rights body explicitly found rape to constitute torture
and a crime against humanity under customary international law. For its analysis, the
Commission drew upon the American Convention, the American Declaration, the
Inter-American Convention to Prevent and Punish Torture, CEDAW, and the then
recently-approved Belém do Pará Convention.
The Commission has considered the situation of women’s rights in Haiti on several
subsequent occasions, including in a 2009 report entitled The Rights of Women in
Haiti to be Free from Violence and Discrimination, and most notably, in its sweeping
2010 precautionary measures decision, Precautionary Measures re Women and girls
13
residing in 22 Camps for internally displaced persons in Port-au-Prince,
Haiti, described herein.
On December 22, 2010, the IACHR granted precautionary measures for all the
displaced women and children living in 22 camps for internally displaced persons in
Port-au-Prince, Haiti, in the wake of the devastating January 10, 2010 earthquake.
(Precautionary Measures re Women and girls residing in 22 Camps for internally
displaced persons in Port-au-Prince, Haiti 2010). The request for precautionary
measures alleges a pattern of sexual violence and a series of acts of violence against
the women and girls residing in these camps. The Inter-American Commission called
on the State to ensure the availability of adequate medical and mental health care; to
provide adequate security at the camps, including the lighting of public spaces,
regular patrols, and to increase the presence of female police officers; to ensure that
the law enforcement agencies receive the necessary training to respond appropriately
to sexual violence; to promote the establishment of special investigative police units
within the Office of the Attorney General with a view to investigating rape cases and
other crimes of sexual violence; and to ensure that the Haitian government
meaningfully engage with grassroots women’s groups.
The Commission’s precautionary measures ruling on sexual violence in post-
earthquake Haiti was unprecedented in at least two respects. First, it applied to all
women and girls living in 22 displacement camps, thereby strengthening the
recognition of the right to be free from sexual violence under regional norms and
customary international law. Second, the ruling marked the first time that the
Commission recognized the state obligation to prevent rape when committed by a
14
private actor. The Commission had previously issued select precautionary measures
rulings regarding sexual violence committed by state actors. (Davis 2011).
b. Missing and Murdered Aboriginal Women in Canada
Although indigenous women and girls represent a small percentage of the total
population in Canada, they have been murdered or have gone missing at a
disproportionately high rate. In 2012 and 2013, Canadian Native women’s advocates
appeared at two thematic hearings before the IACHR and presented documentation of
over 600 disappearances and murders of Aboriginal (indigenous) women and girls
across the country over the preceding 30 years. They argued that the Governments of
Canada and British Columbia have failed in their obligation to exercise due diligence
to adequately prevent the violence, investigate reports of disappearances and murders,
and bring perpetrators to justice. (Native Women’s Association of Canada 2012). The
Canadian Native Women’s advocates put forth an “intersectionality” formulation of
the harm to Aboriginal women and girls in Canada, pointing to the complex
intersection of race, sex, socio-economic status, and colonization in shaping the tragic
realities of many indigenous women and girls in Canada. Over the next two years, the
IACHR rapporteurs on women and indigenous peoples carried out an on-site visit to
Canada and published a report, Missing and Murdered Indigenous Women in British
Columbia, Canada (2014), which examines the context and efficacy of Canada’s
response to longstanding violence and discrimination against indigenous women and
offers recommendations to the Canadian government on how to improve efforts to
protect and guarantee the rights of indigenous women.
15
In 2016, following through on a campaign promise, Canadian Prime Minister Justin
Trudeau launched an independent National Inquiry into Missing and Murdered
Indigenous Women and Girls. (Missing and Murdered Indigenous Women and Girls
2016). The Inquiry has a budget of nearly $54 million (Canadian) and a Commission
whose mandate is “to examine and report on the systemic causes behind the violence
that Indigenous women and girls experience, and their greater vulnerability to
violence, by looking for patterns and underlying factors,” such as poverty, violence,
historical, social, economic, institutional and cultural factors. (Government of
Canada; Domonoske 2016). The National Inquiry is headed by Marion Buller, the
first indigenous female judge in British Columbia. The other commissioners, three
women and a man, include indigenous lawyers and the former head of the Québec
Native Women’s Association. (Bennett 2016).
6.3.4 Inter-American Court of Human Rights (IACtHR or Court)
The Inter-American Court of Human Rights is an autonomous judicial institution that
is charged with interpreting and enforcing the American Convention on Human
Rights and other regional human rights treaties, including the Belém do Pará
Convention. Based in San José, Costa Rica, the IACtHR is composed of seven judges
from across the region who serve in their individual capacities and are elected to six-
year terms. Its two main functions are adjudicatory and advisory.
6.3.4.1 Contentious Cases (Adjudicatory Function)
Under the Court’s adjudicatory function, the Court hears and rules on the specific
cases of human rights violations referred to it by the Commission. Unlike the
16
Commission, which has jurisdiction over all OAS Member States, the Court has
contentious jurisdiction only over those countries (currently, 19) that have ratified the
American Convention on Human Rights (ACHR) and that have additionally accepted
its jurisdiction. (ACHR art. 62). The Court has addressed several cases of VAW,
some of which are discussed below. In deciding these cases, the Court has relied
primarily on the American Convention on Human Rights, the Belém do Pará
Convention, and the Inter-American Convention on Torture.
The Court also has jurisdiction to oversee States’ compliance with its judgments in
contentious cases. It may require parties to submit periodic reports on compliance,
hold public and private hearings on compliance, and issue Court orders on
compliance. These orders may declare full or partial compliance with the judgment,
and require additional information from the parties. Unlike the periodic reports
submitted before the CIM under the Belém do Pará Convention, the periodic reports
on compliance with the Court’s judgments are ordered and supervised by a judicial
body.
6.3.4.2 Advisory Opinions
Under the Court’s advisory function, the Court issues advisory opinions on matters of
legal interpretation of regional human rights treaties that are brought to its attention
by other OAS bodies or Member States. Under Article 11 of the Belém do Pará
Convention, States Parties and the CIM can request advisory opinions on the
interpretation of that treaty.
17
The Court has addressed women’s rights in two Advisory Opinions (Costa Rica 1984
and Undocumented Migrants 2003). Although neither opinion dealt explicitly with
VAW, the latter opinion found that: “the fundamental principle of [gender] equality
and non-discrimination has entered the realm of jus cogens,” and States have an
affirmative obligation “to reverse or change discriminatory situations that exist in
their societies to the detriment of a specific group of persons. This implies the special
obligation to protect that the State must exercise with regard to acts and practices of
third parties who, with its tolerance or acquiescence, create, maintain or promote
discriminatory situations.” (Id. ¶¶101, 104).
6.3.5 Provisional Measures
“In cases of extreme gravity and urgency, and when necessary to avoid irreparable
damage to persons,” the Court can adopt provisional measures, pursuant to Article 63
of the American Convention on Human Rights. These provisional measures are
similar in nature to precautionary measures issued by the Commission, though each
has different procedural requirements.
6.3.6 The Belém do Pará Convention and the Court’s Jurisdiction
As described earlier, Article 12 of the Belém do Pará Convention permits individuals
or groups to lodge petitions with the IACHR alleging violations of Article 7 by a State
Party, and instructs the Commission to “consider such claims in accordance with the
norms and procedures established by the American Convention on Human Rights and
the Statutes and Regulations of the [IACHR] for lodging and considering
18
petitions.” Some initially questioned whether the Court had jurisdiction to examine
violations of Article 7 of the Belém do Pará Convention, in light of the absence of any
mention of the Court in Article 12. (Cotton Field 2009, ¶¶76-80).
In 2009, in its Cotton Field decision, the Court held that it indeed had jurisdiction
over Article 7 claims. (Cotton Field 2009), The Court followed a strict legal analysis
based on Articles 31 and 32 of the Vienna Convention on the Law of Treaties and
applied a “values-based model” to promote individual protection. (Id. ¶¶38-73).
Although the Belém do Pará Convention does not expressly grant the Court
jurisdiction, the Court found, Article 12 implicitly allows such jurisdiction because it
recognizes the Commission’s competence to receive and process complaints of
Article 7 violations, which include the possibility of referring a case to the Court. The
Court found that it lacked competence ratione materiae to find violations of Articles 8
and 9 of the Convention, since the treaty only grants such jurisdiction over Article 7.
However, the Court found that Articles 8 and 9 can be used to aid interpretation of
Article 7 and of other pertinent inter-American instruments. (Marin and Sandoval,
2011; Bettinger-Lopez 2012).
6.4 Violence Against Women Jurisprudence in the Inter-American System
As experts have observed, the IACHR has issued two general lines of merits decisions
concerning VAW over the years. The first line, decided between 1994 and 2001,
focused on cases alleging discrimination and violence against women by state actors,
and impunity toward those acts, in violation of the American Convention. The second
line, decided between 2006-2011, gave more content to the existing standards and
19
opened new ground for subsequent Court rulings focused on violence against
marginalized women and girls. While the Court was slower to come around, it
eventually became a trailblazer on VAW-related international human rights
jurisprudence. (Celorio 2011). Some of the major cases are discussed below.
6.4.1 The First Generation of Inter-American cases on VAW
a. Maria da Penha Maia Fernandes v. Brazil
The case of Maria da Penha Maia Fernandes v. Brazil marks two firsts in the Inter-
American system: it is the first major domestic violence case considered by the
IACHR, and is the first application of the Belém do Pará Convention in the Inter-
American system. The case involves the attempted murder of a woman by her
husband that rendered her paraplegic. (Maria da Penha 2001). Seventeen years later,
at the time the Commission issued its decision, the State had still not sentenced the
husband.
The Commission found violations of articles 8 and 25, in relation to article 1(1), of
the American Convention on Human Rights (ACHR), since “the judicial delay and
long wait for decisions on appeals reveal conduct on the part of the judicial authorities
that violates the right to prompt and effective remedies provided for in the Declaration
and the Convention.” (Maria da Penha 2001, ¶41). Additionally, the Commission
determined that Brazil's actions were “part of a general pattern of negligence and lack
of effective action by the State in prosecuting and convicting aggressors” of domestic
violence, and that the “general and discriminatory judicial ineffectiveness also creates
20
a climate that is conducive to domestic violence, since society sees no evidence of
willingness by the State, as the representative of the society, to take effective action to
sanction such acts.” (Id. ¶56). Such widespread tolerance of domestic violence in
Brazil, the Commission found, constituted a violation of the duty to “condemn all
forms of violence against women” established in article 7 of the Belém do Pará
Convention. (Id. ¶58).
The decision did not find violations of da Penha’s right to life (which includes quality
of life considerations) nor humane treatment, for which there would be considerably
more stigma for the State than a finding of violations of Articles 8 and 25. The
decision is notable for its focus on impunity and a general pattern of violence, its
articulation of the due diligence principle in the context of domestic violence,
complete remedies that included judicial and law enforcement reforms—and of
course, as mentioned earlier, its landmark application of the Belém do Pará
Convention.
In response to the Commission’s decision, domestic pressures and other forms of
international scrutiny, Brazil adopted the landmark Maria da Penha Law in 2006. The
law defined the main forms of violence affecting women in their daily lives (sexual,
economic, physical, psychological, and moral violence) and offered new mechanisms
and measures for prevention, protection and assistance to VAW survivors. In an effort
to improve the criminal justice response to domestic violence, it established new
criminal sanctions and increased previous punishments for domestic violence;
required health facilities to inform police officials of cases of suspected domestic
violence; increased support for specialized police stations dedicated to crimes against
21
women; improved training for civil and military police officers; and created Special
Courts for Domestic and Family Violence against Women. (Prior to the Maria da
Penha Law, domestic violence cases were heard by special civil and criminal courts
that classified domestic violence as a minor offense, and had created a “legacy of
impunity.” (Spieler 2011). The Maria da Penha Law also established preventative and
protective measures and other structural reforms, including centers of education and
rehabilitation for aggressors; integrated services for victims with a national domestic
violence call center; integrating local, state, and national government agencies
through “joint network services;” support for research on domestic violence; and the
inclusion in teaching curriculums of the study of human rights, gender equity, and
domestic violence. (Hein de Campos 2011).
In August 2011, the National Council of Justice of Brazil collected data that indicates
positive results from the Law. Between 2006-2011, more than 331,000 cases of
domestic violence were prosecuted, with 110,000 resulting in final judgments, and the
national call center received nearly two million calls. However, obstacles (financial
and social) to fully implementing the Law still remain. Advocates have recommended
improvements that include: disseminating information about the Law to women’s
police stations (Delegacias Especiais de Atendimento à Mulher – DEAMs);
comprehensive training and better incentives (i.e. career progression) for all DEAM;
improved data collection; and better DEAM coverage for young girls and teenagers.
(UN Women 2012).
22
Moreover, only 147 Special Courts for Domestic and Family Violence against
Women had been set up in 2011, a woefully insufficient number to serve a population
of nearly 200 million. (UN Women 2014).
Some advocates have expressed concern that the Law’s criminal justice response
misses important opportunities and may have counterproductive effects on survivors’
safety and self-determination. (Kim 2012; see also Hein de Campos 2011).
In 2011, the Inter-American Commission held a hearing on “Obstacles to the
Effective Implementation of the Maria da Penha Law.” Brazil reiterated its
commitment to the Law, and the Commission urged Brazil to continue adopting
measures to guarantee the Law’s effective implementation. (Inter-American
Commission on Human Rights 2011).
b. Raquel Martín de Mejía v. Peru and Ana, Beatriz and Celia González
Pérez v. Mexico
Another set of landmark cases during this first legal phase of women’s rights
decisions were Raquel Martín de Mejía v. Peru, and Ana, Beatriz and Celia González
Pérez v. Mexico. Both cases addressed the question of rape by military personnel as
torture, under the ACHR and the Inter-American Convention to Prevent and Punish
Torture (neither country had ratified the Belém do Pará Convention at the time of the
events in question). The González Pérez case also adopted an “intersectionality”
framing and found that “the pain and humiliation suffered by the women was
aggravated by their condition of members of an indigenous group” because they did
23
not know the language of their aggressors and because they were repudiated by their
own community “as a consequence of the violations.” (González Perez 2001).
6.4.2 The Inter-American Court’s Blind Spots and Subsequent
Trailblazing on VAW
Scholars have noted that the Court’s case law on women’s rights is an anomaly both
because it is nearly non-existent until the 21st century, and second because the Court
has, in general, been a trailblazer amongst international human rights bodies with
regard to the rights of the state’s obligation to protect the rights of vulnerable groups.
(See, e.g., Zuloaga 2008). Although a “late bloomer,” the Court eventually developed
expansive and critically-important international human rights jurisprudence on VAW.
a. María Elena Loayza-Tamayo v. Peru
The 1997 María Elena Loayza-Tamayo v. Peru case is an often-cited example of the
Inter-American Court’s failure to recognize gender issues amongst other human rights
violations. Loayza-Tamayo was accused by government operatives of belonging to
Shining Path, the Peruvian Communist party, and subsequently detained, tried by a
“faceless” military court, and convicted of treason. She claimed that while in
detention, she was tortured, threatened, raped, and subjected to other forms of
mistreatment. The Court found violations of Loayza-Tamayo’s rights to personal
liberty and the guarantee of judicial protection enshrined, respectively, in Articles 7,
8(1) and 8(2), and 25 of the American Convention. The Court also found violations
of her right to humane treatment under Article 5 for all of the incidents of
24
mistreatment except the rape. (Loayza-Tamayo 1997). Many have critiqued this
decision as indicative of a decision to impose a higher burden of proof for sexual
violence than for other forms of violence.
b. Caballero Delgado and Santana v. Colombia
If Loayza-Tamayo’s flaw was that it reinforced gender stereotypes, the flaw of the all-
male Court in Caballero Delgado and Santana v. Colombia (1995) was that it failed
to recognize important gender dimensions of the case. In Caballero Delgado and
Santana, the Court relied on eyewitness testimony in a forced disappearance case and
concluded that the victims—a man and a woman—had been detained in violation of
Article 7 (right to liberty) and had been deprived of their right to life in violation of
Article 4 of the ACHR. (Caballero Delgado and Santana 1995). Detailed eyewitness
testimony described Santana as held in custody “totally nude with her hands tied
behind her back,” (¶36) or “in underwear” (¶¶38, 39) and “barefoot” (¶38) while
Caballero Delgado had been dressed by his captors in an army uniform (¶¶36, 38).
Despite this testimony, the Court concluded there was insufficient evidence to find a
violation of Article 5 (right to humane treatment). Notably, the Court made no
reference to Santana’s forced nudity when it found that there was insufficient
evidence to prove that the petitioners had been subjected to inhumane treatment
(Article 5). This suggests that, in the eyes of the Court, the fact that Santana was
stripped and bound (while Caballero Delgado was dressed) was not even a factor in
its decision regarding inhumane treatment.
25
6.4.3 Gender Enters the Picture: State-Sponsored Violence
The cases of Plan de Sánchez Massacre (against Guatemala) and Castro-Castro v.
Peru, which both involve acts of gendered violence carried out by state agents,
marked a significant turning point in the Court’s gender analysis. Through the latter
decision in particular, the Court further refined its thinking on the obligations
contained in the Belém do Pará Convention and its jurisprudence on violence,
discrimination, due diligence, and access to justice.
a. Plan de Sánchez Massacre v. Guatemala
Plan de Sanchez involved a brutal raid of a Mayan village by government armed
forces in 1982. In anticipation of the raid, the village’s adult male inhabitants fled,
believing that the governmental forces would not harm the women and children. Upon
arriving in the village, however, the soldiers brutally raped, tortured and murdered the
young women, beat the children to death, and killed (with hand grenades, guns, and
fire) the remaining inhabitants. The men returned to the village the next day to find
the bodies burning in pyres. Approximately 268 people—most of them women—died
in the massacre, and the perpetrators were never brought to justice. The case came
before the Court 22 years after the events in question, and the government of
Guatemala accepted responsibility for violations of eleven articles of the ACHR,
including the right to humane treatment under Article 5.
The impact of the Court’s decision in Plan de Sanchez lies in its reparations order, in
which the Court found:
26
The women who were raped by the State agents on the day of the
massacre, and who survived the massacre, still suffer from that attack.
The rape of women was a State practice, executed in the context of
massacres, designed to destroy the dignity of women at the cultural,
social, family and individual levels. These women consider themselves
stigmatized in their communities and have suffered from the presence
of the perpetrators in the town's common areas. Also, the continuing
impunity of the events has prevented the women from taking part in
the legal proceedings.
(Plan de Sánchez Massacre 2004, ¶49(19))
The Court’s reparations order included an investigation into the facts and the
identification, prosecution, and punishment of those responsible for the massacre; a
public act acknowledging international responsibility, publication of the Court’s
judgment and translation of it into the Maya-Achí language; monetary contribution to
a chapel to memorialize the victims; a housing program for homeless survivors;
medical and psychological treatment to reduce survivors’ suffering that takes into
account “the special circumstances and needs of each person . . . in order to provide
collective, family and individual treatment;” and programs on health, education,
production and infrastructure to benefit affected individuals. (Id. ¶107). In calculating
financial compensation, the Court awarded the same damages—US $5,000 for
pecuniary damages and US $20,000 for non-pecuniary damages—to all survivors,
both male and female. (Id. ¶¶75-76, 88-89).
27
b. Castro-Castro v. Peru
Two years after Plan de Sanchez, the Court decided the case of Castro-Castro v.
Peru, involving an unprovoked four-day attack by governmental forces using war
weapons (including grenades and machine guns), explosives, tear gas, and paralyzing
bombs on the women’s pavilion, and later the men’s pavilion, of the Miguel Castro-
Castro prison, located outside of Lima. The women’s pavilion housed women accused
of terrorism and linked to the Shining Path. Even inmates attempting to surrender
were gunned down. Peruvian special forces initiated the attack on Wednesday, May 6,
1992, the female visiting day closest to that year’s Mother’s Day in Peru, when many
relatives were visiting their loved ones. Forty-one people died in the attack and
approximately 190 were injured. For several days following the attack, special forces
kept survivors (who included three pregnant women) in deplorable conditions,
subjecting them to “constant beatings,” electroshocks, sexual violence and rape, and
forcing them to lie face down and nude outdoors. (Castro-Castro Prison 2006,
¶197(42)).
The Court’s decision in Castro-Castro made important inroads into women’s rights in
the inter-American system. The Court adopted the definition of gender-based violence
contained in CEDAW’s General Recommendation 19 (“violence that is directed
against against a woman because she is a woman or that affects women
disproportionately,” including “acts that inflict physical, mental or sexual harm or
suffering, threats of such acts, coercion and other deprivations of liberty”) (CEDAW
General Recommendation 19, ¶6) to find violations of women prisoners’ rights to
humane treatment under Article 5 of the American Convention. (Castro-Castro
28
Prison 2006, ¶303). In contrast to its decision in Caballero Delgado and Santana,
and with the benefit of the guidance provided by the 1998 Akayesu decision of the
International Criminal Tribunal for Rwanda, the Court found that forced nudity
constituted a violation of the women detainees’ personal dignity as well as an act of
sexual violence. The Court arrived at this conclusion in light of the fact that the
women “were naked and covered only with a sheet, while armed men, who apparently
were members of the State police force, surrounded them.” (Castro-Castro Prison
2006, ¶306, citing Akayesu 1998).
Moreover, the Court found that when gauging “the seriousness of the acts that may
constitute cruel, inhuman, or degrading treatments or torture it is necessary to weigh
[] all the circumstances of the case,” such as the duration and effects of such acts, and
“in some cases,” the victim’s gender, age, and health conditions, amongst others.” (Id.
¶316). The Court found that incidents of forced nudity constituted “cruel treatments”
and, looking to international criminal law, found that finger vaginal so-called
“inspection” by hooded people conducted “with the excuse of examining” the victim,
constituted “sexual rape that due to its effects constituted torture.” (Id. ¶¶308, 309-
12). The Court awarded higher amounts of compensation to victims of sexual
violence and rape and, without specifically referring to sexual violence, ordered the
State to provide all victims and their next of kin with free medical and psychological
treatment.
Perhaps most importantly, the Court found violations of the rights to due process and
judicial protection under Articles 8 and 25 of the ACHR in relation to Article 7(b) of
the Convention Belém do Pará and the Inter-American Convention to Prevent and
29
Punish Torture. This was the first time the Court had issued a decision referring to a
violation of the Belém do Pará Convention. However, the Court stopped short of
finding an independent violation. It resolved this question three years later, in the
Cotton Field case (discussed infra).
Finally, the Court found that the mothers in solitary confinement had experienced
enhanced suffering. “The impossibility to communicate with their children caused an
additional psychological suffering in the inmates that were mothers” (Castro-Castro
Prison 2006, ¶330), the Court concluded, emphasizing the additional suffering due to
the timing of the attack on Mother’s Day. The Concurring Opinion of Judge Cançado
Trindade used especially charged language sanctifying motherhood:
Maternity, which must be surrounded by special cares, respect, and
acknowledgment, throughout life and in the afterlife, was violated in
the present case in a brutal form and on a truly inter-temporal scale. . . .
In even another dimension, many of the women who survived the
bombing of the Prison of Castro-Castro . . . have not been able to be
mothers yet, since, as stated in the public hearing in the cas d’espèce
before this Court, they have since then used all their existential time in
searching for truth and justice.
(Castro-Castro Prison 2006, Concurring Opinion ¶¶60, 63).
6.4.4 The Second Generation of Inter-American Cases on VAW
30
Castro-Castro laid the groundwork for a series of landmark decisions by the Inter-
American Court and Commission that expanded and deepened the due diligence
principle in the context of both state-sponsored and private acts of VAW, provided for
transformative reparations at the individual and structural levels, and broadened the
analysis of the intersection of VAW, gender, race, and ethnicity. (Celorio 2011).
a. In re Cotton Field (Claudia Ivette Gonzalez et al. v. Mexico) (IACtHR
2009)
In February 2002, the Inter-American Commission became the first of many
international rights bodies to make an on-site visit to Ciudad Juárez to examine a
fifteen-year series of hundreds of unsolved and poorly investigated disappearances,
rapes, and murders (also called feminicides) of poor, young, predominantly-migrant
women and girls in Ciudad Juarez, a Mexican border city with a population of 1.5
million. In March 2003, the Commission published a landmark report on the issue,
laying the foundation for the Inter-American Court’s analysis six years later in its
Cotton Field decision.
At issue in Cotton Field was the abduction, sexual abuse, and killing of three poor
migrant women, two of whom were minors. The Mexican authorities’ response to
these crimes was beset with irregularities, stereotypes, poor investigations, and
impunity. The petitioners alleged that their family members’ disappearances and
killings were gender-based, not only because they targeted women and girls
specifically, but also because they took place in the context of a culture of
discrimination against women.
31
Cotton Field marked a watershed moment in the Inter-American system. The Court,
for the first time, found that states have affirmative obligations to respond to violence
against women by private actors, and that those obligations are unequivocally
justiciable under article 7 of the Belém do Pará Convention. Notably, much of the
Court’s analysis of the substantive violations relies on the American Convention and
not the Belém do Pará Convention—likely because the former has such well-
developed jurisprudence, and also, arguably because the Belém do Pará Convention
has a far more limited set of justiciable state obligations (contained in Article 7) than
the American Convention. Additionally, the Court examined the cases at issue in the
context of mass violence against women and structural discrimination, found that
gender-based violence constitutes gender discrimination, and articulated its most
comprehensive definition to date of gender-sensitive reparations designed not only to
return victims to their status prior to the violation (individual remedies), but also to
transform the preexisting situation (structural remedies). Mexico has undertaken some
positive steps to comply with the Court’s order.
In its judgment, the Court found Mexico responsible for numerous rights violations:
the right to life (art. 4), personal integrity (arts. 5), personal liberty (art. 7), access to
justice and to judicial protection (arts. 8 and 25), non-discrimination (art. 1), as well
as the rights of the child (art. 19) under the American Convention, in conjunction with
the state obligations under the Belém do Pará Convention to use due diligence to
respond to violence against women (art. 7(b), (c)).
32
In considering the violations, the Court reiterated the elements of due diligence—the
state duties to prevent, investigate, punish, and compensate human rights violations,
including those committed by private actors—originally articulated in the Court’s
groundbreaking Velásquez Rodríguez v. Honduras case. Further, the Court considered
the element of “double discrimination” that overlaid the substantive law violations
and noted the hostile stereotypes of state authorities toward the victims and their
families. “The creation and use of stereotypes,” the Court found, “becomes one of the
causes and consequences of gender-based violence against women.” Ultimately, the
Court found, “the violence against women [in this case] constituted a form of
discrimination.” The Court also observed that “[t]he impunity of the crimes
committed sends the message that violence against women is tolerated; this leads to
their perpetuation, together with social acceptance of the phenomenon, the feeling
women have that they are not safe, and their persistent mistrust in the system of
administration of justice.” (Cotton Field 2009, ¶¶390-402).
The court also ruled on an important jurisdictional question in Cotton Field; namely,
the question of the justiciability of articles 7, 8, and 9 of the Belém do Pará
Convention. The court affirmed its conclusion in Castro-Castro that, pursuant to
article 12 of that treaty, it had jurisdiction over claims brought under article 7
(immediate obligations). The court further concluded that it did not have jurisdiction
over claims brought directly under article 8 (progressive obligations) or under article
9 (intersectional obligations). Still, the court found that the various articles of the
Convention—including articles 8 and 9—can nevertheless be useful to aid
interpretation of article 7 and of other pertinent Inter-American instruments, such as
the American Convention. (Id. ¶79).
33
Notably, Judge Cecilia Medina’s concurring opinion in Cotton Field contends that the
Court should have found a violation of the prohibition on torture contained in article
5(2) of the American Convention. Judge Medina champions the adoption of the three-
part test set forth by the International Criminal Tribunal of Yugoslavia “to determine
elements in torture that are uncontentious and that constitute, consequently, jus
cogens: (i) infliction, by act or omission, of severe pain or suffering, whether physical
or mental; (ii) the intentional nature of the act, and (iii) the motive or purpose of the
act to reach a certain goal.” (Concurring Opinion of Judge Cecilia Medina Quiroga in
Cotton Field 2009, ¶15). Judge Medina asserts that the suffering at issue in the case
was sufficiently severe to constitute torture, as other international bodies have
repeatedly found in cases involving gender-based violence.
The reparations ordered by the Inter-American Court in Cotton Field were
remarkable. The court ordered Mexico to comply with a broad set of remedial
measures, including pecuniary and non-pecuniary reparations of more than $200,000
USD to each family in the suit, publication of the judgment, the State’s public
acknowledgment of international responsibility, construction of a national memorial,
and state-financed medical, psychological, and psychiatric care to the victims’
families. (Cotton Field 2009, ¶¶468–71, 549–86). Remedies aimed at guaranteeing
non-repetition included: renewed investigations, prosecutions, and punishment for
perpetrators; investigations of public servants who failed to exercise due diligence in
responding to the disappearances and murders and, in some cases, threatened or
persecuted the victim’s next of kin, and a public announcement of the results of such
investigations; the standardization of investigative protocols concerning cases of
34
sexual violence and parameters to be taken into account when implementing rapid
investigation responses in the case of disappearances of women and girls; creation
and updating of a national website and database with information on all missing
women and girls; training of all personnel in Mexico involved, directly or indirectly,
in the prevention, investigation, and prosecution of violence against women; and the
development of an educational program for the people of the State of Chihuahua, to
ameliorate the situation of gender-based violence there. (Id. ¶¶452-506, 541-43, 549-
86).
The Court, however, rejected the argument advanced by the Inter-American
Commission and Petitioners that, as a matter of non-repetition, Mexico should be
required to design, coordinate, and implement a long-term national policy to
guarantee due diligence in responding to cases of violence against women. The court
found that it had not been provided with “sufficient arguments” on “why the series of
measures already adopted by the State cannot be considered an ‘integral, coordinated
policy.’” (Id. ¶¶475, 493).
Scholars Ruth Rubio-Marin and Clara Sandoval praise the court’s willingness to
embrace a gender-sensitive approach when interpreting Mexico’s due diligence
obligations and adopting “transformative reparations.” However, they argue, the
court, in rejecting the request by the Commission and Petitioners that the court require
a coordinated, long-term national policy, “lost a major opportunity to apply its own
concept of transformative reparations to the awards it made.” The onus, they argue,
should have been on Mexico—not on the Commission or the victims—to provide
evidence both as to the existence of such a policy and, critically, why any policies
35
currently in place can be expected to prevent future violations. “Even more,” they
argue, “the Court could have taken a more constructive approach to the problem and
called for the establishment of an expert team to assess the effectiveness of [the]
measures [Mexico had already adopted], identify their shortcomings, and put forward
recommendations.” (Rubio-Marin and Sandoval 2011).
Mexico has taken arguably good faith steps to implement the Court’s ruling, but many
of these steps have come under criticism, and the country is far from full compliance.
Ciudad Juarez continues to have a staggering murder rate. In 2008-2011,
approximately 700 women and girls were murdered during a renewed wave of
violence against women in Ciudad Juarez. Journalists have continued to document
poor, inconsistent, and obstructionist responses by authorities to disappearances and
murders of women and girls, as well as recent discoveries of “new clusters of slain
women,” some in mass graves. (Cave 2012).
The Mexican Federal Attorney General organized a special working group to improve
Mexico’s capacity to investigate the crimes. Together with the U.S. Federal Bureau of
Investigation (“FBI”), the Mexican government has purportedly established a public
national database to aid in matching known DNA samples with biological samples
taken from crime scenes, though the database’s functionality is dubious. The Mexican
government states that it continues to investigate the murders of the three named
victims, in conjunction with a program called Attention to Victims that incorporates a
gender perspective into the investigation. (First Report 2010).
36
Investigations also continue regarding the allegations of irregularities. The Mexican
government claims to have enacted 36 different administrative sanctions against
officials. The victims’ representatives claim, however, that the government has not
even opened cases against at least thirty-one functionaries that were known to have
intervened in investigations.
The Mexican government published the text of the court’s decision in national and
local newspapers, governmental websites, and official federal and local gazettes, and
thus claims it has achieved more than the court required with respect to the
publication and communication of the court’s ruling. Notably, the Gender Equality
Program of Mexico’s Supreme Court of Justice of the Nation website provides
extensive information regarding the Cotton Field case, including a full version of the
court’s decision, amicus briefs, the original complaint, and further analysis.
The design, construction, and inauguration of the monument in memory of the victims
in Ciudad Juarez presented a series of complications for government officials. After
considerable controversy over an appropriate location for the memorial, it was built
on the same land where the women were found ten years earlier. At the inauguration,
the Deputy Secretary of Judicial Matters and Human Rights of the Ministry of the
Interior delivered an official apology and made specific reference to the Court’s
ruling. The named victims’ family members did not attend the inauguration of the
monument in their honor, and they provided no comments to Mexico’s subsequent
submission on compliance to the IACtHR. Moreover, families of other victims
protested the inauguration of the memorial, demanding that the government
investigate the murders and disappearances, rather than building a 16 million peso
37
memorial. (The actual monument has not yet been built.) (El Universal 2011).
Emphasizing that the violations are of local, not national, character, they also
criticized the federal government for taking the lead role in delivering the official
apology instead of state or local officials, whom they claimed were more directly
responsible for the violations. (Bustamonte 2011).
Mexico has made efforts to bolster its institutional capacity to conduct investigations
and gender trainings. The Chihuahua Prosecutor’s Office now maintains an easily
accessible list of disappeared women and girls on its website. (Fiscalía General Del
Estado de Chihuahua). And the federal government’s 40-point Action Program to
Prevent and Eradicate Violence Against Women in Cuidad Juarez, Chihuahua—
originally developed in response to previous recommendations from the CEDAW
Committee—was expanded after Cotton Field to include a Specialized Office for
Female Homicide Investigation in the State Prosecutor’s Office and a Crime and
Forensic Sciences Laboratory in Ciudad Juarez. (Committee on the Elimination of
Discrimination Against Women 2011).
In March 2012, the government inaugurated the “Women of Ciudad Juarez Center for
Justice,” a community center intended to provide medical, psychological, and legal
assistance. (Torres Ruiz 2012 and Martinez Orpineda 2012). The Governor of
Chihuahua announced this as a governmental achievement in compliance with the
court’s decision when he visited the Inter-American Commission on Human Rights.
(Informa.com 2012). However, the Committee of Mothers of the Victims alleged that
the Center was opened with no guidelines, legal structures, or operating and
38
procedural protocols, and with the sole purpose of falsely demonstrating compliance
with the court’s ruling. (Torres Ruiz 2012).
In 2014 and 2015, the Mexican states of Guanajuato and Edomex, respectively, issued
“gender alerts” that tasked authorities with launching in-depth investigations into the
causes of violence against women and taking concrete steps to tackle the problem.
(Lakhani 2015). Human rights groups and victims’ families had been demanding
gender alerts in Edomex since 2010, amid growing evidence that it had become the
most dangerous place to be female in the country. (Rama and Diaz 2014). But many
have expressed doubt about the efficacy of such measures against an overburdened,
weak and often corrupt justice system.
The Mexican government claims that full monetary reparations have been paid to the
victims’ families and that it has attempted to provide medical and psychological
attention to the victims’ next of kin. (First Report 2010). The families, however, insist
that the government has done no more than redirect them to the same mental health
services provided through the universally accessible public health system, and that
these services fall short of the specialized and integral health services ordered by the
court. (Asociación Nacional de Abogados Democráticos, et al. 2010; Leticia Díaz
2011).
b. Valentina Rosendo Cantú and another v. Mexico; Inés Fernández
Ortega v. Mexico (IACtHR 2010)
39
The cases of Cantú v. Mexico and Ortega v. Mexico involve similar facts, legal
findings, and reparations. Both cases involve the rape of young indigenous women by
armed military personnel, and the Mexican government’s subsequent failure to
investigate and provide health care to the victims. The cases also impugn Mexico for
granting military courts, rather than civilian courts, jurisdiction over cases of human
rights violations committed by military personnel.
In both cases, the Court found violations of the rights to personal integrity, dignity,
and private life (Articles 5(1), 5(2), 11(1), and 11(2) of the ACHR), in relation to
Articles 1, 2, and 6 of the Inter-American Convention to Prevent and Punish Torture,
as well as for noncompliance with the obligation to refrain from engaging in acts of
violence against women, pursuant to Article 7(a) of the Belém do Pará Convention.
The court also found violations of the right to personal integrity of the victims’ family
members under Article 5 of the ACHR. Additionally, the Court found violations of
the victims’ right to judicial guarantees and judicial protection (Articles 8(1) and
25(1) ACHR, in relation to Articles 1(1) and 2 thereof), and that the State had not
applied due diligence to prevent, investigate and impose penalties for violence against
women (Article 7(b) CBP). Finally, the Court found that Mexico did not comply with
the obligation to guarantee, without discrimination, access to justice (Articles 8(1) and
25(1) ACHR) to the detriment of the victims. In the case of Ms. Cantú, who was 17
years old, the Court found a violation of the rights of the child, enshrined in Article 19
of the ACHR.
The Court dove into an “intersectional” analysis, highlighting the particular
vulnerabilities of multiply-marginalized women such as Cantú and Ortega, both
40
young, poor, indigenous women. For instance, Mrs. Cantú was not provided “a
translator by the State when she required medical care, or when she filed her initial
complaint; nor did she receive information, in her own language, about the
subsequent steps taken regarding her complaint.” (Cantú 2016, ¶185). As a result, the
Court found, Ms. Cantú suffered “an unjustified impairment of her right to obtain
justice.” (Id.).
The Court ordered Mexico to reform and limit military jurisdiction to exclude rape
prosecutions; provide training and education programs to military personnel and
others; enhance public awareness of VAW; pay monetary compensation for the harms
suffered; provide the victims with appropriate medical and psychological treatment;
and ensure that the victims’ children (and Ms. Cantú) received a scholarship to study.
The Cantú and Ortega cases are significant for several reasons: First, they find that
sexual assault by a state official can constitute torture. Second, they deepen the
Court’s intersectionality analysis. Third, they urge Mexico to remove human rights
violations from the jurisdiction of its military courts and place jurisdiction before
civilian courts. Fourth, the cases highlight the complementary nature of Article 7 of
the Belém do Pará Convention and the American Convention on Human Rights,
particularly regarding the obligation to investigate and prosecute crimes of VAW with
due diligence. Mexico has made limited progress in implementing the reparations
ordered in these cases, and much remains to be done.
c. Jessica Lenahan (Gonzales) v. United States (IACHR 2011)
41
Lenahan v. U.S. is the second landmark case from the IACHR analyzing State
responsibility for acts of domestic violence under international human rights law.
Although the Commission’s decision is limited to a finding of responsibility for
violations of the American Declaration on the Rights and Duties of Man, it draws
upon the ACHR and the Belém do Pará Convention in its analysis. The decision
further develops Inter-American case law on the State’s due diligence obligation to
prevent, investigate, and punish acts of domestic violence, and to protect and
compensate victims. It also addresses issues of federalism in the implementation of
international human rights law.
In June 1999, Jessica Gonzales’ three young daughters, Katheryn (10), Rebecca (8),
and Leslie (7) Gonzales, were abducted by her abusive estranged husband (and the
girls’ father), Simon Gonzales, in violation of the terms of a restraining order Jessica
Gonzales had obtained against him in the state of Colorado. Although Jessica
Gonzales repeatedly called the police, telling them of her fears for her daughters’
safety and at one point even identifying their location, the police did not respond
meaningfully. Nearly ten hours after the abduction, Simon Gonzales drove his truck
to the police department and opened fire. He was shot dead by the police. The slain
bodies of the three girls were subsequently discovered in the back of his truck. Local
authorities did not conduct a proper investigation into the children’s deaths, resulting
in uncertainties about the cause, time, and place of their deaths. (Bettinger-Lopez
2008).
Jessica Gonzales filed a lawsuit against the police in federal court in Colorado. The
case eventually landed at the U.S. Supreme Court, which ruled in 2005 that she had
42
no Constitutional due process right to police enforcement of her restraining order,
despite Colorado state law mandating arrest for violations of restraining orders. (Town
of Castle Rock 2005).
Jessica Gonzales (who subsequently remarried and changed her last name to Lenahan)
then filed a petition in 2005 with the Inter-American Commission on Human Rights,
alleging that the United States violated her human rights under the American
Declaration on the Rights and Duties of Man by failing to exercise due diligence to
protect her and her daughters from acts of domestic violence perpetrated by her ex-
husband.
In 2011, the Commission published its merits report and recommendations. The
Commission found that the state apparatus “was not duly organized, coordinated, and
ready to protect these victims from domestic violence by adequately and effectively
implementing the restraining order []; failures to protect which constituted a form of
discrimination in violation of [] the American Declaration.” (Lenahan (Gonzales)
2011, ¶160). Further, the Commission found that “[t]hese systemic failures are
particularly serious since they took place in a context where there has been a
historical problem with the enforcement of protection orders; a problem that has
disproportionately affected women – especially those pertaining to ethnic and racial
minorities and to low-income groups – since they constitute the majority of the
restraining order holders.” (Id. ¶161). The Commission also found that the State failed
to investigate the circumstances of the girls’ deaths once their bodies were found.
43
Thus, the Commission concluded, the State failed to act with due diligence to protect
Jessica Lenahan and her daughters from domestic violence, in violation of the State’s
obligation not to discriminate and to provide for equal protection before the law under
Article II of the American Declaration. The Commission also found violations of the
right to life under Article I and the right to special protections under Article VII due
to the State’s failure to undertake reasonable measures to prevent the girls’ deaths.
Finally, the Commission found that the State violated the right to judicial protection
under Article XVIII of Jessica Lenahan and her next-of kin.
The Commission offered a series of well-developed recommendations for both
individual and policy-focused remedies. These included, inter alia, the
recommendation to conduct a “serious, impartial and exhaustive investigation into
systemic failures that took place related to the enforcement of Lenahan’s protection
order, to reinforce through legislative measures the mandatory character of the
protection orders and other precautionary measures to protect women from imminent
acts of violence, and to create effective implementation mechanisms.” (IACHR
Publishes Report on Case Jessica Lenahan of the United States 2011).
Although the United States has resisted formal implementation of the Lenahan
decision, four developments at the federal and local levels have resulted in partial
State compliance with the Commission’s policy-focused recommendations.
Beginning in 2011, the U.S. Department of Justice (DOJ) initiated investigations into
law enforcement’s discriminatory response to sexual assault and domestic violence in
several jurisdictions across the United States. (Schneider et al. 2012). In April 2014,
the DOJ hosted a Roundtable on Domestic Violence and Human Rights for
44
government workers that considered the value added of a human rights approach to
domestic violence programs and advocacy. (U.S. Department of State 2015).
Additionally, approximately 30 cities and counties across the U.S., inspired by
Jessica’s win, passed resolutions declaring freedom from domestic violence a human
right. (Cornell University Law School Gender Justice Clinic 2017). And in December
2015, U.S. Attorney General Loretta Lynch announced the release of an official
Department of Justice guidance for police departments nationwide. (U.S. Department
of Justice 2015). The Guidance is designed to help law enforcement agencies prevent
gender bias in their response to domestic violence and sexual assault, and highlights
the need for clear policies and responsive accountability systems. This guidance is
supported by many advocates who supported Jessica’s lawsuit, and the American
Civil Liberties Union describes Jessica’s case as “the driving force” in creating the
guidance. (Lapidus 2017).
Jessica Lenahan has become an internationally-recognized advocate for women’s
rights. Her story is the subject of a documentary, HOME TRUTH, which premiered at
the Human Rights Watch Film Festival in 2017. (Maguire and Hayes 2017).
6.5 CONCLUSION
While far from perfect, the Inter-American human rights system is arguably the
world’s most well-developed and effective human rights system in the violence
against women context. It directly addresses issues of state responsibility for
responding to violence against women, broadens possibilities of a shared
45
understanding for what it means to exercise due diligence in VAW cases, creates
certainty in standards, and has served as a mobilizing force for advocates and
survivors.
The Inter-American system has the most developed norms and jurisprudence on
violence against women amongst the regional and international human rights
mechanisms. The Belém do Pará Convention, now over two decades old, has been
cited in over twenty cases before the Inter-American Commission and Court. The
Belém do Pará Convention has also helped to further define and give specificity to the
norms of the American Convention on Human Rights and other Inter-American
human rights instruments in the VAW context.
Moreover, the Inter-American system has an increasingly-effective track record.
While there are serious limitations and barriers to normative development and
domestic implementation, the Inter-American system, alongside other factors, has
contributed to real law and policy change in many countries throughout the region—
Mexico, Brazil, and the United States, to name a few. If the system was deepened,
made more consistent, replicated globally, and tied to national and global activism, it
could have the potential to truly change the VAW playing field on the international
stage.
Despite these positive developments, there are legitimate concerns about the norms,
structure, and position of the Inter-American system. The normative limitations of the
Belém do Pará Convention, restricting the treaty’s use to a short list of Article 7 State
obligations (discussed supra), have compelled the Inter-American Court and
46
Commission to look to other norms and jurisprudence in VAW cases. It is unclear
whether and how the Court will address the important progressive obligations
outlined in Article 8 or the intersectionality obligations outlined in Article 9.
Additionally, the failure of some OAS Member States—especially powerful countries
like the United States and Canada— to ratify the Belém do Pará Convention and the
American Convention on Human Rights means that millions of women and girls are
left without the protections afforded by these treaties. When the Inter-American
Commission considered the question of the state duty to protect in the case of Jessica
Lenahan v. United States, for instance, its legal analysis was restricted to the 1948
American Declaration on the Rights and Duties of Man, whose broad human rights
standards and name make it a far cry from ideal source of law to address VAW.
Also, history provides numerous examples of how ratification of treaties does not
necessarily result in effective implementation or enforcement of them at the domestic
level. Many, if not all, States that have ratified the Belém do Pará Convention and the
American Convention continue to struggle with high levels of violence against
women, serious limitations on survivors’ effective access to justice, and impunity for
perpetrators—both private and State actors. Even those States with domestic
legislation that fulfills some of the obligations enumerated in Articles 7 and 8 struggle
with funding, implementation, and enforcement. These realities underscore the
difficulties with changing social and cultural norms that promote and condone
violence against women.
47
Any effort to replicate the Belém do Pará Convention on the international level would
be well-served by reviewing the successes, challenges, and limitations of the Inter-
American system’s experience in the VAW context. To be effective, a universal
VAW treaty would need to address the nuances of VAW and focus on state
responsibility, as does the Belém do Pará Convention. A universal treaty should be
designed to complement the Belém do Pará Convention and other regional initiatives,
and should have a monitoring or compliance mechanism that can receive and evaluate
complaints (similar to the IACHR’s function in the Inter-American context). Ideally,
an international VAW treaty would have a campaign that promotes universal
ratification, to avoid the problems outlined above with patchwork ratification. Perhaps
most important, the treaty’s norms and campaign should be driven by VAW survivors
and their advocates, spur community-level mobilization, and serve as a catalyst for a
global reconfiguration of State obligations to prevent violence against women and
protect and provide access to justice for victims and survivors.
Bibliography
Amnesty International. (2009). Brief for Amnesty International, et al. as Amici Curiae
Supporting Petitioners, Gonzalez et al. v. Mexico. 12.496-98, Inter-Am. Ct. H.R.
Ana, Beatriz and Celia González Pérez v. Mexico, (2001). Case 11.565, Inter-Am. Ct.
H.R., Report No. 53/01, OEA/Ser.L./V/II.111, doc. 20 rev.
Asociación Nacional de Abogados Democráticos, et al. (2010). Incumplé Estado
Mexicano Sentencia de la CoIDH. Available at http://anadac.org/ (Accessed
July 29, 2017).
Bennett, C. (2016). Launch of Next Phase of National Inquiry into Missing and
Murdered Indigenous Women and Girls. Indigenous and Northern Affairs,
48
Government of Canada. Available at https://www.canada.ca/en/indigenous-
northern-affairs/news/2016/08/launch-of-next-phase-of-national-inquiry-into-
missing-and-murdered-indigenous-women-and-girls.html (Accessed July 29,
2017).
Bettinger-Lopez, C. (2008). Human Rights at Home: Domestic Violence as a Human
Rights Violation, 40 Columbia Human Rights Law Review at 19. Available at
SSRN: https://ssrn.com/abstract=1310316 (Accessed August 8, 2017).
Bettinger-Lopez, C. (2009). Primer on the Inter-American Human Rights System.
Clearinghouse Review, Journal of Poverty Law and Policy, Vol. 42, No. 11-12,
March-April 2009. Available at https://ssrn.com/abstract=1550865 (Accessed
July 29, 2017).
Bettinger-Lopez, C. (2012). The Challenge of Domestic Implementation of the
International Human Rights Law in The Cotton Field Case, 15 CUNY Law
Review at 321. Available at http://www.cunylawreview.org/wp-
content/uploads/2013/08/Bettinger-Lopez_Cotton-Field-Case.pdf (Accessed
August 8, 2017).
Bustamante, A. (2011). Memorial, es un Circo, es una Enorme Farza, EL
MEXICANO, Available at
http://www.oem.com.mx/elmexicano/notas/n2300786.htm. (Accessed July 26,
2017).
Caballero Delgado and Santana, (1995). Merits, Judgment, Inter-Am. Ct. H.R. (ser.
C) No. 22.
Cave, D. (2012). Wave of Violence Swallows More Women in Juarez, N.Y. Times.
Available at http://www.nytimes.com/2012/06/24/world/americas/wave-of-
49
violence-swallows-more-women-in-juarez-
mexico.html?pagewanted=1&_r=3&hp (Accessed July 26, 2017).
Celorio, Rosa M. (2011). The Rights of Women in the Inter-American System of
Human Rights: Current Opportunities and Challenges in Standard-Setting,
Univ. of Miami Law Rev. Vol. 65 Issue 3 at 819. Available at
http://repository.law.miami.edu/cgi/viewcontent.cgi?article=1140&context=uml
r (Accessed July 30, 2017).
Columbia Law School Human Rights Institute et al. (2014). Domestic Violence &
Sexual Assault in the United States: A Human Rights Based Approach &
Practice Guide. Available at
http://www.law.columbia.edu/sites/default/files/microsites/human-rights-
institute/files/dv_sa_hr_guide_reduce.pdf (Accessed July 29, 2017).
Committee on the Elimination of Discrimination Against Women. (2011).
Consideration of Reports Submitted by States Parties under Article 18 of the
Convention on the Elimination of all Forms of Discrimination Against Women,
U.N. Doc. CEDAW/C/MEX/7-8.
Convention on the Elimination of All Forms of Discrimination against Women.
(1979). (“CEDAW”) GA/RES/34/180, 1249 UNTS 13, entered into force Dec.
18 1979. Available at
http://www.un.org/womenwatch/daw/cedaw/text/econvention.htm (Accessed
July 30, 2017).
Convention on Preventing and Combating Violence Against Women and Domestic
Violence. Istanbul, 11.V.2011 Council of Europe Treaty Series - No. 210,
entered into force May 11, 2011. Available at
50
http://www.coe.int/en/web/conventions/full-list/-
/conventions/rms/090000168008482e (Accessed July 29, 2017).
Cornell University Law School Gender Justice Clinic. (2017). Freedom from
Domestic Violence as a Fundamental Human Right Resolutions, Presidential
Proclamations, and Other Statements of Principle. Available at
http://www.lawschool.cornell.edu/womenandjustice/DV-Resolutions.cfm
(Accessed July 26, 2017).
Crenshaw, K. (1991). Mapping the Margins: Intersectionality, Identity Politics, and
Violence against Women of Color. Stanford Law Review, 43, 1241.
Davis, L. (2011). Still Trembling: State Obligation Under International Law to End
Post-Earthquake Rape in Haiti, Univ. of Miami Law Review, 65, 867.
Declaration on the Elimination of Violence Against Women. (1993). A/RES/48/104
art. 3, 4, entered into force Dec. 20, 1993. Available at
http://www.un.org/documents/ga/res/48/a48r104.htm (Accessed July 29, 2017).
Domonoske, C. (2016). Canada Releases Details On Inquiry Into Murdered, Missing
Indigenous Women. NPR. Available at
http://www.npr.org/sections/thetwo-way/2016/08/03/488491160/canada-
releases-details-on-inquiry-into-murdered-missing-indigenous-women
El Universal. (2011). Estado pide perdon por feminicidios. Available at
http://www.archivo.eluniversal.com.mx/nacion/190591.html. (Accessed July 26,
2017).
Fernández Ortega et al. v. Mexico. (2010). Judgment of Preliminary Objections,
Merits, Reparations and Costs. Inter-Am. Ct. H. R. Series C No. 215.
51
First Report of the Mexican Government regarding the measures adopted to fulfill the
orders of the Inter-American Court of Human Rights from the Case Gonzalez v.
Mexico (Cotton Field). (2010). Available at
http://www.campoalgodonero.org.mx/documentos/primer-informe-del-estado-
mexicano-medi das-adoptadas-cumplimiento-sentencia-dictada-corte (Accessed
July 26, 2017).
Fiscalía General Del Estado de Chihuahua. Reporte de Ausencia de Mujeres.
Available at http://fiscalia.chihuahua.gob.mx/reporteextraviomujeres.htm
Gonzalez v. Mexico (“Cotton Field”). (2009). Preliminary Objection, Merits,
Reparations, and Costs, Judgment. Inter-Am. Ct. H.R. (ser. C) No. 205.
Government of Canada. About the Independent Inquiry. Available at
https://www.aadnc-aandc.gc.ca/eng/1470140972428/1470141043933 (Accessed
August 8, 2017).
Hein de Campos, C. (2011). Access to Justice and the Permissive State: The Brazilian
Experience, Univ. of Miami Law Rev. Vol. 65 Issue 3. Available
at http://lawreview.law.miami.edu/wpcontent/uploads/2011/12/v65_i3_ccampo
s.pdf (Accessed July 26, 2017).
Inter-American Commission on Human Rights. (1995). Report on the Situation of
Human Rights in Haiti. OEA/Ser.L/v/II.88 Doc. 10 rev. Available at
http://cidh.org/countryrep/EnHa95/eh95int.htm (Accessed July 26, 2017).
Inter-American Commission on Human Rights. (2002). Situation of Violence against
Women in the Hemisphere. Thematic hearing.
Inter-American Commission on Human Rights. (2003). The Situation of the Rights of
Women in Ciudad Juárez, Mexico: The Right to be Free from Violence and
52
Discrimination. OEA/Ser.L/V/II.117 Doc. 44. Available at
http://www.cidh.org/annualrep/2002eng/chap.vi.juarez.htm (Accessed July 29,
2017).
Inter-American Commission on Human Rights. (2003). Follow-up to the Report on
Situation of Violence and Discrimination against Women in Ciudad Juarez,
Mexico: The Right to be Free from Violence and Discrimination. Thematic
Hearing.
Inter-American Commission on Human Rights. (2006). Violence and Discrimination
Against Women in the Armed Conflict in Colombia. Report. Available at
https://www.cidh.oas.org/pdf%20files/InformeColombiaMujeres2006eng.pdf
Inter-American Commission on Human Rights. (2007). Domestic Violence in Chile.
Thematic Hearing. Available at
http://www.cidh.oas.org/Audiencias/127/Violencia%20intrafamiliar%20en%20
Chile.MP3 (Accessed July 26, 2017).
Inter-American Commission on Human Rights. (2007). Access to Justice for Women
Victims of Violence in the Americas. Report. Available at
http://www.cidh.org/women/Access07/tocaccess.htm (Accessed July 26, 2017).
Inter-American Commission on Human Rights. (2008). Situation of violence and
discrimination against women in Haiti. Thematic Hearing. Available at
http://www.cidh.oas.org/Audiencias/133/B16ViolenciamujeresHaiti.mp3
Inter-American Commission on Human Rights. (2009). Institutional Violence Against
Women in Mexico. Thematic Hearing. Available
53
at http://www.oas.org/OASpage/videosasf/2009/11/CIDH110509_3pm2.wmv
Inter-American Commission on Human Rights. (2009). The Right of Women in Haiti
to be Free from Violence and Discrimination, OEA/Ser.L./V/II Doc. 64, 10
March 2009. Report. Available at
http://www.cidh.org/countryrep/Haitimujer2009eng/HaitiWomen09.Intro.Chap.
IandII.htm (Accessed July 29, 2017).
Inter-American Commission on Human Rights. (2009). Report on Citizen Security
and Human Rights (Ch. IV(A)(4): Reinforced obligations in the area of violence
against women pursuant to the Convention of Belém do Pará). Available at
http://www.cidh.org/countryrep/Seguridad.eng/CitizenSecurity.IV.htm#4.
Inter-American Commission on Human Rights. (2010). Precautionary Measures re
Women and girls residing in 22 Camps for internally displaced persons in Port-
au-Prince, Haiti. PM 340/10. Available at
http://www.oas.org/en/iachr/decisions/precautionary.asp (Accessed July 29,
2017).
Inter-American Commission on Human Rights. (2011). Obstacles to the Effective
Implementation of the Maria da Penha Law, Brazil. Thematic Hearing.
http://www.oas.org/OASPage/videosasf/2011/10/102811_RB_S1.wmv
Inter-American Commission on Human Rights. (2011). IACHR Publishes Report on
Case Jessica Lenahan of the United States. Press Release. No. 92/11. Available
at http://www.oas.org/en/iachr/media_center/preleases/2011/092.asp. (Accessed
July 26, 2017).
54
Inter-American Commission on Human Rights. (2011). Violence against Indigenous
Women in the United States. Thematic Hearing. Available at
http://www.oas.org/OASPage/videosasf/2011/10/102511RubenDarioV210am.w
mv (Accessed July 26, 2017).
Inter-American Commission on Human Rights. (2011). Annex to Press Release
117/11 on the 143rd Regular Session of the IACHR. Available at
http://www.oas.org/en/iachr/media_center/PReleases/2011/117A.asp (Accessed
July 26, 2017).
Inter-American Commission on Human Rights. (2011). Access to Justice for Women
Victims of Sexual Violence in Mesoamerica. Report. OEA/Ser.L/V/II. Doc. 65.
Available at
https://www.oas.org/en/iachr/women/docs/pdf/WOMEN%20MESOAMERICA
%20ENG.pdf (Accessed July 26, 2017).
Inter-American Commission on Human Rights. (2012). Complaints regarding
Missing and Murdered Indigenous Women and Girls in British Columbia,
Canada. Thematic Hearing. Available at
http://www.oas.org/OASPage/videosasf/2012/03/032812_PVidal_1.wmv
Inter-American Commission on Human Rights. (2013). Situation of Violence Against
Women in the Americas. Thematic Hearing. Available
at https://www.youtube.com/watch?v=m6DCdOn6zdY (Accessed July 26,
2017).
Inter-American Commission on Human Rights. (2014). Challenges of Protecting
Women from Violence 20 Years after the Belém do Pará Convention. Thematic
55
Hearing. Available at https://www.youtube.com/watch?v=5jAAWqEKJVc
Inter-American Commission on Human Rights. (2014). Missing and Murdered
Indigenous Women in British Columbia, Canada. OEA/Ser.L/V/II. Doc 30/14.
Report. Available at
http://www.oas.org/en/iachr/reports/pdfs/indigenous-women-bc-canada-en.pdf
Inter-American Commission on Human Rights. (2015). Reports of Obstetric Violence
in Costa Rica. Thematic Hearing. Available
at https://www.youtube.com/watch?v=w4UuNFyGo54 (Accessed July 25,
2017).
Inter-American Commission on Human Rights. (2017). Reports of Sexual Violence
against Adolescents in Bolivia. Thematic Hearing. Available at
https://www.youtube.com/user/ComisionIDH/feed (Accessed July 25, 2017).
Inter-American Court of Human Rights. (1984). Proposed Amendments of the
Naturalization Provisions of the Constitution of Costa Rica, Advisory Opinion.
OC-4/84, Inter. Am. Ct. H.R. (ser. A) No. 4.
Inter-American Court of Human Rights. (2003). Juridical Condition and Rights of
Undocumented Migrants, Advisory Opinion. OC-18/03, Inter-Am. Ct. H.R.
(Ser. A) No. 18.
International Covenant on Civil and Political Rights, G.A. res. 2200A (XXI), 21 U.N.
GAOR Supp. (No. 16) at 52, articles 6, 7,9, U.N. Doc. A/6316 (1966), 999
U.N.T.S. 171, entered into force Mar. 23, 1976. Available at
https://treaties.un.org/doc/publication/unts/volume%20999/volume-999-i-
14668-english.pdf (Accessed July 29, 2017).
56
Jessica Lenahan (Gonzales) v. United States. (2011). Case 12.626, Report No. 80/11,
Inter-Am. Comm’n H. R.
Kim, M. (2012). Brazil and the Paradox of Gender Justice , discussing Marta
Rodriguez de Assis Machado, Punishing Gender Violence: Brazil’s “María da
Penha Law.” Univ. of Cal. Berkeley, Center for Latin American Studies.
Available at http://clas.berkeley.edu/event/%E2%80%9Cpunishing-gender-
violence-brazil%E2%80%99s-%E2%80%98maria-da-penha-
law%E2%80%99%E2%80%9D. (Accessed July 29, 2017).
Lakhani, N. (2015). Mexican state known for gender-based violence issues emergency
alert. The Guardian. Available at
https://www.theguardian.com/world/2015/jul/29/mexico-gender-women-
violence-emergency-alert-edomex (Accessed July 29, 2017).
Lapidus, L. (2017). Jessica Lenahan Lived Through a Domestic Violence Nightmare
and Emerged as a Heroic Advocate for Police Reform. Blog. American Civil
Liberties Union. Available at https://www.aclu.org/blog/speak-freely/jessica-
lenahan-lived-through-domestic-violence-nightmare-and-emerged-
heroic (Accessed July 26, 2017).
Leticia Díaz, G. (2011). Niega SEGOB política de elusión contra sentencias de la
CoIDH, Proceso. Available at http://www.proceso.com.mx/?p=282116.
Loayza-Tamayo v. Peru. (1997). Inter-Am. Ct. H.R. Series C No 33.
Maguire, K. and Hayes, A. (2017). Home Truth. http://www.hometruthfilm.com/
Maria da Penha v. Brazil. (2001). Case 12.051, Inter-Am. Comm’n H.R., Report No.
54/01, OEA/Ser.L/V/II.111 doc. 20 rev.
57
Martinez Orpineda, M. (2012). Inauguran hoy Centro modelo para la mujer. El
Mexicano. Available at
http://www.oem.com.mx/elmexicano/notas/n2481587.htm. (Accessed July 26,
2017).
Informa.com (2012). Ofrece CIDH apertura para avanzar en solucion de casos en
Chihuahua. UniRadio. Available at
http://uniradioinforma.com/noticias/articulo1. 05995.html (Accessed July 26,
2017).
Miguel Castro-Castro Prison v. Peru. (2006). Merits, Reparations and Costs,
Judgment, Inter-Am. Ct. H.R. (Ser. C) No. 160.
Missing and Murdered Indigenous Women and Girls. (2016). National inquiry into
Missing and Murdered Indigenous Women and Girls. Available at
http://www.mmiwg-ffada.ca/ (Accessed July 29, 2017).
Native Women’s Association of Canada, et al. (2012). Missing and Murdered
Aboriginal Women and Girls in British Columbia, Canada. Briefing Paper for
Thematic Hearing before the Inter-American Commission on Human Rights,
144th Period of Sessions. Available at
http://www.nwac.ca/sites/default/files/imce/IACHR%20Canada%20Briefing%2
0Paper%20March%2028,%202012.pdf (Accessed July 29, 2017).
Optional Protocol to the Convention on Elimination of All Forms of Discrimination
against Women. GA RES 54/4 entered into force Oct. 15, 1999. Available at
http://www.un.org/womenwatch/daw/cedaw/protocol/ (Accessed July 29, 2017).
Organization of American States. (1928). Inter-American Commission of Women
(CIM). Available at http://www.oas.org/en/cim/ (Accessed July 27, 2017).
58
Organization of American States (1948). American Declaration of the Rights and
Duties of Man. (1948). Ser.L./V.II.23, Doc. 21, Rev. 6 , entered into force May
2, 1948. Available at
https://www.cidh.oas.org/Basicos/English/Basic2.American%20Declaration.ht
m (Accessed July 29, 2017).
Organization of American States. (1969). American Convention on Human Rights.
Treaty Series, No. 36. San Jose: Organization of American States. Available at
https://www.oas.org/dil/treaties_b-
32_american_convention_on_human_rights_sign.htm (Accessed July 29, 2017).
Organization of American States. (1984). The Inter-American Convention to Prevent
and Punish Torture. G.A. res. 39/46, annex, 39 U.N. GAOR Supp. (No. 51) at
197, U.N. Doc. A/39/51, entered into force June 26, 1987. Available at
http://oas.org/juridico/english/treaties/a-51.html (Accessed July 29, 2017).
Organization of American States. (1993). The Charter of the Organization of
American States, OAS, GA/RES. 1210 (XXIII.,O/93) entered into force June
10, 1993. Available at
http://www.oas.org/juridico/English/charter.html. (Accessed July 29, 2017).
Organization of American States. (1994). The Inter-American Convention on the
Prevention, Punishment and Eradication of Violence against Women.
(1994). ("Convention of Belem do Para"), 27 U.S.T. 3301, 1438 U.N.T.S. 63,
entered into force June 9, 1994. Available at
http://www.oas.org/juridico/english/treaties/a-61.html (Accessed July 29, 2017).
Organization of American States. (1998). Multilateral Evaluation Mechanism (“MEM”).
Available at
59
http://www.cicad.oas.org/Main/Template.asp?File=/mem/about/default_eng.asp
Organization of American States. (2001). Mechanism for Follow-Up on the
Implementation of the Inter-American Convention Against Corruption
(“MESICIC”). Available at
http://www.oas.org/juridico/english/mesicic_intro_en.htm (Accessed July 27,
2017).
Organization of American States. (2004). The Mechanism to Follow-Up on
Implementation of the Inter-American Convention on the Prevention,
Punishment, and Eradication of Violence Against Women. (“MESCEVI”).
Available at http://www.oas.org/en/mesecvi/default.asp (Accessed July 25,
2017).
Plan de Sánchez Massacre v. Guatemala, (2004). Reparations, Judgment, Inter-Am.
Ct. H.R. (ser. C) No.116.
Prosecutor v. Jean-Paul Akayesu. (1998). Judgment. Inter-Am. Ct. H.R. Case No.
ICTR-96-4-T, (Sept. 2 1998).
Rama, A. and Diaz, L. (2014). Violence against women ‘pandemic in Mexico.
Reuters. Available at http://www.reuters.com/article/us-mexico-violence-
women-idUSBREA2608F20140307 (Accessed July 27, 2017).
Raquel Martín de Mejía v. Peru. (1996). Case 10.970, Inter. Am. Ct, H.R., Rep, No.
5/96, OEA/Ser.L./V/II.91, doc. 7.
Rosendo Cantú et al. v. Mexico. (2016). Judgment of Preliminary Objection, Merits,
Reparations and Costs. Inter-Am. Ct. H. R. Series C No. 216.
60
Rubio-Marin, R. and Sandoval, C. (2011). Engendering the Reparations
Jurisprudence of the Inter-American Court of Human Rights: The Promise of
the Cotton Field Judgment, 33 Hum. Rts Q. 1062, 1082-83.
Schneider, E. et al., (2012). Implementing the Inter-American Commission on Human
Rights' Domestic Violence Ruling, 46 Clearinghouse Review: Journal of Poverty
Law and Policy 113.
Spieler, P. (2011). The Maria Da Penha Case and the Inter-American Commission
on Human Rights: Contributions to the Debate on Domestic Violence Against
Women in Brazil. 18 Ind. J. Global Legal Stud. 121, 140.
Torres Ruiz, G. (2012). Diario Rotativo. Centro de Justicia para las Mujeres de
Ciudad Juárez. http://rotativo.com.mx/seguridad/repudian-nuevo-centrode-
justicia-para-las-mujeres/87988/html/ (Accessed July 26, 2017).
Town of Castle Rock v. Gonzalez. (2005). 545 U.S. 748.
UN General Assembly. (1993). Declaration on the Elimination of Violence against
Women, 20 December 1993, A/RES/48/104. Available at:
http://www.refworld.org/docid/3b00f25d2c.html (Accessed July 29, 2017).
UN Women. (2012). 2011-2012 Report on the Progress of the World’s Women,
“Women’s police stations and special courts in Brazil,” Available at
http://www.unwomen.org/-
/media/headquarters/attachments/sections/library/publications/2011/progressofth
eworldswomen-2011-en.pdf?vs=2835 (Accessed July 26, 2017).
UN Women. (2014). Brazil: Women’s police stations and special courts in Brazil.
Datacards. Available at
http://womensrights.silk.co/page/Brazil%3A%C2%A0Women%E2%80%99s%
61
20police%20stations%20and%20special%20courts%20in%20Brazil (Accessed
July 26, 2017).
U.S. Department of Justice. (2015). Justice Department Issues Guidance on
Identifying and Preventing Gender Bias in Law Enforcement Response to Sexual
Assault and Domestic Violence. https://www.justice.gov/opa/pr/justice-
department-issues-guidance-identifying-and-preventing-gender-bias-law-
enforcement (Accessed July 26, 2017).
U.S. Department of State. (2015). Report of the United States of America
Submitted to the U.N. High Commissioner for Human Rights
In Conjunction with the Universal Periodic Review. Available at
https://www.state.gov/j/drl/upr/2015/237250.htm (Accessed July 26, 2017).
Vienna Convention on the Law of Treaties, 1155 U.N.T.S. 331, 8 I.L.M. 679, entered
into force Jan. 27, 1980. Available at
https://www.oas.org/dil/vienna_convention_on_the_law_of_treaties.pdf
Zuloaga, P. (2008). The Path to Gender Justice in the Inter-American Court of
Human Rights, 17 Tex. J. Women & Law 227, 245-46.
1
The author extends her appreciation to Filiz Akkaya and Emily Wassermann for invaluable research
assistance.
2
Notably, the definition of “violence against women” in article 1 of the Belém do Pará Convention
refers to, but does not define, “gender.” By contrast, the Council of Europe Convention on preventing
and combating violence against women and domestic violence (known familiarly as the “Istanbul
Convention,” see Chapter XXX) defines “violence against women” as a form of gender-based violence
(“violence against women is understood as a violation of human rights and a form of discrimination
against women and shall mean all acts of gender-based violence that result in, or are likely to result in .
. . [] harm or suffering to women . . .” (art. 3(a)), and then goes on to define both “gender” (“the
socially constructed roles, behaviours, activities and attributes that a given society considers
appropriate for women and men” (art. 3(c)) and “gender-based violence against women” (“violence
that is directed against a woman because she is a woman or that affects women disproportionately”
(art. 3(d)). While both treaties are focused specifically on violence against women and girls, Istanbul’s
inclusion of “gender” as a stand-alone concept arguably leaves room for a broader identification of
gender-based violence to include violence against LGBTQI and gender-nonconforming people.
62
Also of note, the Istanbul Convention and the U.N. Declaration on the Elimination of Violence Against
Women (DEVAW) apply to acts of gender-based violence that “result in, or are likely to result in,”
harm or suffering, including threats of such actions, coercion or arbitrary deprivation of liberty. The
Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) applies to
acts of gender-based violence that “inflict” harm or suffering as well as threats, coercion and other
deprivations of liberty. The Belém do Pará Convention only applies to acts or conduct, based on
gender, that “cause” harm or suffering. These distinctions in word choice could potentially make a
difference in identifying cognizable claims of rights violations. The Belém do Pará Convention
language, for instance, could be read to require a more proximate cause of harm, whereas the Istanbul
Convention, DEVAW, and CEDAW could be read to have a more tenuous connection to the harm.
63

Ssrn-Id3067672 Caroline Bettinger-Lopez

Hochgeladen von

Dokumentinformationen

Originaltitel

Copyright

Verfügbare Formate

Dieses Dokument teilen

Dokument teilen oder einbetten

Freigabeoptionen

Stufen Sie dieses Dokument als nützlich ein?

Sind diese Inhalte unangemessen?

Copyright:

Verfügbare Formate

Ssrn-Id3067672 Caroline Bettinger-Lopez

Hochgeladen von

Copyright:

Verfügbare Formate

Suggested citation: Caroline Bettinger-Lopez, Violence against Women Normative Developments in

Chapter 6. Violence against Women Normative Developments in the Inter-

American Convention on the Prevention, Punishment and Eradication of Violence

against Women (known familiarly as the “Belém do Pará Convention”), adopted in

rights to life, non-discrimination, equal protection, physical and mental integrity,

violence against women that includes an individual complaint mechanism. Despite

serious limitations, the Inter-American system has an increasingly-effective track

The Inter-American system directly addresses issues of state responsibility for

responding to violence against women, broadens possibilities of a shared

Electronic copy available at: https://ssrn.com/abstract=3067672

served by reviewing the successes, challenges, and limitations of the Inter-American

system’s experience in the VAW context.

The Inter-American Convention on the Prevention, Punishment and Eradication of

Violence against Women (known familiarly as the “Belém do Pará Convention”),

Charter of the Organization of American States, the American Convention on Human

that includes an individual complaint mechanism.

Electronic copy available at: https://ssrn.com/abstract=3067672

6.2 The Belém do Pará Convention: Anatomy

gender, which causes death or physical, sexual or psychological harm or suffering to

“shall be understood to include physical, sexual and psychological violence:

interpersonal relationship, whether or not the perpetrator shares or has

battery and sexual abuse;

among others, rape, sexual abuse, torture, trafficking in persons, forced

prostitution, kidnapping and sexual harassment in the workplace, as well

as in educational institutions, health facilities or any other place; and

(c) that is perpetrated or condoned by the state or its agents regardless of

where it occurs” (art. 2). 2

relationship between gender violence and discrimination, indicating that such

violence is a manifestation of historically unequal power relationships between

practices based on concepts of inferiority or subordination” (art. 6).

provision, States must immediately commit to refrain from engaging in acts of

violence against women; adopt appropriate legal, legislative, and administrative

provides for rights to be immediately realized, Article 8, by contrast, provides for

rights to be progressively realized: “[t]he States Parties agree to undertake

progressively specific measures,” including programs that promote awareness, modify

foster international cooperation on violence against women. Advocates have argued

legislative, policy, and administrative measures” for eradicating violence against

women specified in Article 7. (Amnesty International 2009).

experience gender-based violence and discrimination equally. It reads: “the States

or displaced persons. Similar consideration shall be given to women subjected to

economically disadvantaged, affected by armed conflict or deprived of their freedom”

levels, and that classical conceptions of inequality and oppression—such as racism,

rather, intersect along multiple axes of discrimination. (Crenshaw 1991).

Finally, the Belém do Pará Convention specifically defines the compliance

mechanisms designed to supervise enforcement of the treaty by States Parties

Inter-American Commission of Women information on measures adopted” to comply

Convention uniquely—and in contrast to the Council of Europe Convention on

familiarly as the “Istanbul Convention”)—contains an individual complaint

mechanism. Article 12 of the Convention allows for individual and collective

violence against women.

forms of Discrimination against Women (CEDAW) (which requires separate

CEDAW Committee of individual and collective petitions alleging discrimination.

Because the scope of such complaints is limited to discrimination, however, several

torture, privacy, dignity, due process, education, employment, etc.—are arguably

compliance mechanisms is contained in the next section.

6.3 OAS Compliance Mechanisms Related to VAW

compliance mechanisms related to States Parties’ VAW-related obligations. The four

most relevant compliance mechanisms are: the Inter-American Commission of

Women (CIM); the Mechanism to Follow-Up on Implementation of the Inter-

American Convention on the Prevention, Punishment, and Eradication of Violence

Against Women (MESECVI); the Inter-American Commission on Human Rights

(IACHR or Commission); and the Inter-American Court of Human Rights (IACtHR

system of the OAS.