Standards on State accountability to ensure GBV survivors’ access to justice in complex situations

The detailed constellation of the specific measures required to ensure access to justice for women survivors of GBV has been elaborated by the CEDAW Committee, particularly in General Recommendations 19 (1992) on violence against women; General Recommendation 30 on women’s rights in conflict and post-conflict situations; General Recommendation 33 (2015) on access to justice; and General Recommendation 35 (2017), which updates General Recommendation 19. The United Nations Special Procedures, notably the United Nations Special Rapporteur on violence against women, its causes and consequences, the United Nations Special Rapporteurs on torture and extra-judicial executions, and the United Nations Working Group on discrimination against women in law and practice, have also detailed how justice should be administered.

The CEDAW Committee, through its General Recommendations 19 and 35, recognizes GBV as a form of discrimination against women under CEDAW, and requires States parties to prevent, investigate, prosecute and provide remedy for all such acts, highlighting that access to justice is necessary to vindicate these rights. The CEDAW Committee in General Recommendation 33 has further emphasized the importance of access to justice in general, for ensuring women’s human rights, as an aspect of the rule of law and good governance. It has reaffirmed in General Recommendation 30 that under all circumstances – even fragile or complex contexts – States are still bound by the basic obligation to ensure justice for women for crimes of violence committed against them.

General Recommendation 35 of CEDAW is particularly important because it consolidates not only the Committee’s own monitoring work and jurisprudence under the Optional Protocol, but also provisions contained in regional treaties, in particular the Istanbul Convention, and judgements of regional human rights courts, in particular the Inter-American Court of Human Rights.

Important elements of access to justice for victims/survivors of GBV under CEDAW General Recommendations 19, 30, 33 and in particular 35 71 are:

• All forms of GBV against women must be defined as crimes. General

Recommendation 35 encourages States to “ensure that all forms of GBV against women in all spheres, which amount to a violation of their physical, sexual or psychological integrity, are criminalized”.

As victims and survivors, women and girls are entitled to reparation, in terms of restitution (restoring property lost due to the commission of the crime), rehabilitation (physical, mental and reproductive healthcare required to make a full recovery from the health impacts of the crime), compensation (financial compensation to reflect the pain and suffering experienced), satisfaction (apologies and public recognition of the harm done and the dignity of the survivors) and guarantees of non-repetition.

• Clear criminal law on rape and sexual violence. General Recommendation 35 urges States to “ensure that sexual assault, including rape, is characterized

as a crime against the right to personal security and physical, sexual and psychological integrity and that the definition of sexual crimes, including marital and acquaintance or date rape, is based on the lack of freely given consent and takes into account coercive circumstances.”72

• Requirements of effective investigation and prosecution. At the core of the procedural obligations of States lies the duty of domestic authorities to conduct a thorough and effective investigation capable of leading to the identification and, as appropriate, the punishment of those responsible.73

• Protective measures for women complainants and witnesses to

GBV before, during and after legal proceedings. A survivor-centred approach is particularly critical in the adoption of protective measures, as these need to place the safety and needs of victims and witnesses at their heart. CEDAW General

Recommendation 35 74 closely follows the provisions of the Istanbul

Convention,75 and recommends that

States parties adopt and implement a range of protective measures, including:

» appropriate and accessible protective mechanisms to prevent further or potential violence, such as immediate risk assessment, protection or restraining orders, emergency barring orders against alleged perpetrators, including adequate sanctions for noncompliance

» access to financial assistance, gratis or low-cost, high-quality legal aid » medical, psychosocial and counselling services

» timely and comprehensive mental, sexual and reproductive health services that are responsive to trauma, including emergency contraception and post-exposure prophylaxis against HIV

» education, affordable housing, land, childcare, training and employment opportunities for women who are victims/survivors and their family members

» women’s support services, such as free helplines operating around the clock and sufficient numbers of safe and adequately equipped crisis, support and referral centres and adequate shelters for women, their children and other family members, as required

» appropriate multisectoral referral mechanisms to ensure effective access to comprehensive services for survivors of such violence, ensuring the full participation of and cooperation with non-governmental women’s organizations.

• Transformative remedies to deal with root causes of GBV. General

Recommendation 35 draws on previous jurisprudence, particularly

Gonzalez, Monreal and Monarrez v

Mexico (2009), known as “the Cottonfield case”, in requiring that reparations be transformative, that is, that they address the root causes of the violence, particularly the gendered inequalities that allowed the crime of violence to take place. The Committee recommends that States parties implement the following measures with regard to reparations: “(a) Provide effective reparations to victims/survivors