Reparations for VAW Victims and Survivors: A Phantom Ideology?
by G. Monique van Thiel
Reparations paid to victims and survivors of violence against women (VAW) by the state is a process that at this time is hardly implemented. Yet many states have ratified the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) that emphasises due diligence particularly, the functions of prevention, protection, punishment and reparations to end VAW. Article 4 of the Declaration on the Elimination of Violence states that VAW victims and survivors shall have access to means of justice and adequate follow up that correlates to the suffering. The fulfillment of women’s human rights go beyond criminal measures but extend to civil remedies, including the assurance of sufficient protection, support and treatment services for survivors of VAW.
In recent years, states, such as the Democratic Republic of the Congo (DRC), have seen the strong determination of civil society organisations to make the state take co-responsibility of acts of VAW. A panel of experts organised by the UN Office of the High Commissioner for Human Rights has evaluated the cases of VAW victims and survivors on the ground and strongly advised the government to pay damages. The High Commissioner asserts: “The right to remedy and reparation is enshrined in international human rights law. It encompasses not only the right to equal and effective access to justice, but also the need to address the consequences of the harm suffered, through restitution, rehabilitation, compensation, satisfaction and guarantee of non-repetition.”
The cycle of violence against women must end and one way to show accountability as well as support is for governments to take responsibility and seek full justice rather than causing re-victimisation. It is also important to emphasize the full sense of reparations as this phenomenon serves different purposes and certainly goes beyond the meaning of monetary restitution. Next to paying for endured medical expenses, a woman will deal better with psychological trauma knowing that the state supports her and justice prevails on all fronts. Post-violent incidents can be in this regard dealt with in a more confident matter and also damages, such as wage loss and housing damage can be taken care of without adding more stress to the already dismal situation that a VAW survivor finds herself in. It is in this context that Special Rapporteur on VAW, Rashida Manjoo refers to reparations as an “aspiring tool.”
The short comings of laws concerning VAW at the national level should be effectively addressed by a regional governing body such as the Association of Southeast Asian Nations (ASEAN). To date, VAW takes place at all levels of society: in the home, at the work place, in one’s own community and within one’s own trusted circles. Although on paper ASEAN has made a commitment to combat VAW, in reality, the post-traumatic conditions for survivors show a very different picture. In fact, VAW such as rape has become so systematically targeted against particular groups of ethnic women and girls that a culture of impunity is actually being tolerated.
A VAW survivor requires adequate approaches in order for the victim to be a confident member of society again. A report by UN Women states: “VAW does not only have long lasting impacts on women’s health, it also affects women’s mental, physical, economic and spiritual wellbeing and self esteem.” Unfortunately, many women do not report the incident for fear of further discrimination especially in places where there is a strong gender hierarchy. Many cases are also settled out of court, certainly when it pertains to the VAW case of a young woman whose parents may be willing to receive the compensation. Moreover, a girl also can be forced to marry the perpetrator in order to save the family’s honor. Many women and girls are also not aware of the procedures of reporting.
Regardless of a community’s apathy on VAW, a state has to exercise due diligence and make it a top priority to aid women who have been violated. Yet, in most ASEAN states, authorities at both local and national levels, human rights-based and gender sensitive approaches are still limited. In more rural settings, gender inequality is the accepted norm. Some law enforcement agencies are not equipped to handle cases of VAW and are grossly deficient in any kind of support services. Furthermore, survivors oftentimes lack the financial means to seek the support needed when it is not provided by the state.
States have the duty to provide effective remedies including reparations to victims of gross violations of international human rights law and serious violations of international humanitarian law. ASEAN can consider the work of the Organization of American States (OAS) Inter-American Commission on Human Rights (IACHR), a regional body that encompasses a clear set of guidelines on the providence of reparations for VAW survivors in Latin America and the Caribbean. The IACHR has been seen as a forerunner on reparations paid to women who have been violated even as this regional body faces some shortcomings. This, through its Convention on the Prevention, Punishment and Eradication of Violence against Women, otherwise known as the “Convention of Belém do Pará.
As one expert testimony before the IACHR reads, “[The Belém do Pará Convention] sets forth the obligations of the State to establish just and effective legal procedures for women who have been subjected to violence.” It further requires of the members states “to establish the judicial and administrative mechanisms necessary to ensure that women have effective access to just and effective compensation or reparation” (OAS, 2011). Like in ASEAN, VAW in OAS countries is a reality quite different than the promises made by these governments. Nonetheless there has been progress. Recently, the IACHR demanded that Mexico pay the families of three young women, who were tortured and killed in Cuidad Juarez which has also seen the violent deaths of more than 400 women since 1993. Mexico has also been ordered to issue a public apology and construct a memorial.
It is evident that life in a society of impunity without a transparent judicial system makes the plea for adequate measures extremely challenging. Moreover, it is important to highlight that changes happen not solely through the states. They germinate through advocacy work and solidarities of different stakeholders. ASEAN needs to be strongly reminded of its responsibilities. Although it may be at the top of the fastest growing economies in the world, it is also home to nations where gender inequality is still an everyday challenge.
Committee on the Elimination of Discrimination Against Women (2008). Concluding Observations of the Committee on the Elimination of Discrimination Against Women: Myanmar. URL: http://www.unhcr.org/refworld/publisher,CEDAW,CONCOBSERVATIONS,MMR,494ba8d00,0.html
Copelon, Rhonda (2009). “Expert Testimony before the Inter-American Court of Human Rights.” ccrjustice.org/files/Rhonda%20Copelon%20declaration.doc
Manjoo, Rashida (2011). “Violence Against Women, Its Causes and Consequences.” URL: http://www2.ohchr.org/english/bodies/hrcouncil/docs/14session/A.HRC.14.22_AEV.pdf
Office of the High Commissioner on Human Rights (2011). “Reparations for Sexual Violence Survivors in DRC.” URL: http://www.ohchr.org/EN/NewsEvents/Pages/ReparationsforsexualviolenceinDRC.aspx
Organization of American States (OAS) (2011). “Special Report on the Rights of Women.” URL:www.cidh.oas.org/Comunicados/English/2011/43-11eng.htm
Shan Human Rights Foundation and Shan Women’s Action Network (2002). License to Rape: The Burmese military regime’s use of sexual violence in the ongoing war in the Shan State. URL: http://www.burmacampaign.org.uk/reports/License_to_rape.pdf
United Nation Women (nd). “UN Women Issue Briefs on Women’s Human Rights in the ASEAN Region, Violence Against Women.” URL: http://cedaw-seasia.org/docs/VAW_Issue_Paper_UNWOMEN.pdf
Women in the World Foundation (2011). “Violence Against Women: Mexico apologizes for failing to protect women slain in Ciudad Juarez.” URL: http://womenintheworld.org/index.php/stories/entry/mexico-apologizes-for-failing-to-protect-women-slain-in-ciudad-juarez