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Due Diligence Project - Website
TRADITIONAL VALUES, CULTURE, RELIGION - WOMEN'S HUMAN
RIGHTS
May 30,
2013
2:00
pm - 4:00 pm
Palais des Nations – Room VIII
Zarizana Abdul Aziz
Good afternoon distinguished representatives, ladies and gentlemen. Let
me to start by thanking the organisers for inviting the Due Diligence Project
to be part of this panel.
This afternoon I will explore the intersecting terrains of international
human rights, law, culture and politics.
I will also discuss traditional values and culture from the perspective
of State responsibility. It is not possible to include all forms of violations
of women’s human rights, so I will restrict myself to violence against women.
First, please allow me to briefly discuss State responsibility which has
over the years expanded to include not only State obligation not to violate
human rights, but the obligation to ensure that violations of human rights,
whether committed by State actors or non-State actors are eliminated. This is
best understood with reference to the international legal principle know as due diligence.
For the past three years, the Due Diligence Project (DDP), a multi-year
40 country research project of which I am co-director, has undertaken to unpack
the due diligence principle in relation to State responsibility to end violence
against women and more particularly to develop a Due Diligence Framework as a
tool to assist States, inter-governmental organisations and civil society alike
to assess State compliance with this international legal principle.
The Project does this through a questionnaire survey to civil society as
well as expert group consultations in the regions we are working in, namely
Africa, Asia-Pacific, Europe, Latin America and the Caribbean, Middle East and
North Africa and lastly, a region consisting of
The Due Diligence Project breaks up the study into five areas comprising
State responsibility to end violence against women. We call this the 5 Ps: prevention,
protection, prosecution and investigation, punishment and provision
of redress and reparation.
Prevention comprises programmes, policies and laws that aim to avoid
violence from happening in the first instance. Protection refers to steps taken
to protect and provide services to women who decide to take action to stop the
violence. Prosecution looks at State action from investigation of incidence(s)
of violence against women through the prosecution process. Punishment looks at
sentencing and other forms of punishment meted out to perpetrators of violence
against women. Provision of redress looks at the needs of the victim/survivor
in receiving justice and reparation including whether the justice received is
transformative.
Preliminary findings support the assertion that all of the Ps are
interlinked. For example, meeting women’s need for redress and reparation
determine if women will come forward to access protection services and
participate in the prosecution of the violation. Effective prevention
programmes must address the underlying causes of violence against women,
including systemic causes, as well as women’s fears and concerns.
Our preliminary findings further reveal that the top
four obstacles, across the regions, to women coming forward to stop VAW are:
repercussions from perpetrators, lack of confidence in the police and/or
judiciary, negative financial consequences and social stigma. This occurs
across the regions with slight variations where in certain regions. Effective
preventive actions must therefore link back to clear these obstacles if we are
to ensure that women have the ability to come forward to end VAW.
Preliminary findings also indicate that gender inequality; women’s low
level of economic independence and education; and negative cultural and
religious perception of women are amongst the top risk factors that increase
prevalence of violence against women. The findings also reveal a pattern of
underlying cause of these obstacles and risks revolve around culture, values
and politics.
This was also underlined in the Convention on the Elimination of All
Forms of Discrimination against Women. Article 2 (f) requires States to take
all appropriate measures, including legislation, to modify or abolish existing
laws, regulations, customs and practices which constitute discrimination
against women. Article 5 (a) also requires State Parties to take all
appropriate measures to modify the social and cultural patterns of conduct of
men and women, with a view to achieving the elimination of prejudices and
customary and all other practices which are based on the idea of the
inferiority or the superiority of either of the sexes or on stereotyped roles
for men and women.
I would now like to look more closely the question of culture and examine
its potential to bring about social transformation.
Let’s start with 2 basic premises.
1. Culture is a social construct. What I want to emphasise here is that
culture is not only a social construct, it is entrenched and maintained through
State and non-state institutions.
2. The avoidance and prevention of violence constitute the basic purpose
of lawmaking and thus forms part of State responsibility within the due
diligence principle. The rule to avoid and prevent violence is so fundamental
that “if a legal system did not have them there would be no point in having any
other rules at all.” (Hart 1958).
Next let us examine the interrelationship between culture, power and
privilege.
Cultural narratives which demand social and legal acceptance of VAW erroneously
presume that all cultural practices should be preserved. If interpretation of
culture, tradition and/or religion includes violence against women, women are
not only told to accept violence, they are denied any role as equal and active
contributors to the development and production of culture (Ertürk 2007). Thus,
normative laws and rights are not only intrinsic to cultural formations, the
formulation of the cultural narrative is itself bound to law making, power and
privilege.
Questioning the narrative of culture and VAW puts the
understanding of power back in the centre of our understanding of culture and
allows us to interrogate upon what terms of engagement and with whose interest
culture is narrated. The political strategy to prefer their narratives of
culture to legitimize VAW, promotes the idea that there is an inherent cultural
right by some amongst certain communities to execute violence against women.
Consequently, the upholding of these cultural practices tends to be represented
without reference to and emptied of the actual injuries to women.
One way to accommodate concerns on essentializing
oppressive elements in cultural groups is to exclude illiberal norms and
practices in our cultural narratives so that what is essential for cultural
survival does not overlap with what is oppressive and reprehensible (Song
1995). While culture may be the locus of certain ethos and virtues, protection
of these ethos and virtues should only be granted if they provide value to
individuals (Song 1995). This is because not all cultural practices contain
universal goodness that needs preservation and continued and continuous
everyday choreographed enactments.
The danger in encouraging and preserving conservative
elements in cultural groups solely on the basis that they have been practiced
over the ages is that it necessarily implicates culture’s paralysis and strips
it of dynamism. For culture to maintain its dynamism, we need to provide
persons within the cultural group with cultural freedom, which includes the
liberty to question the automatic endorsement of past traditions when people
see reason for changing their ways of living (Sen 2007).
Arguments positing a clash between traditional cultures and
modernization in the discourse of VAW is misplaced. VAW is a systemic global
practice which is then justified in the name of honour, culture and religion
and in the process, re-conceptualizing women not as victims of violence but
violators of culture and family honour.
Take the case of domestic violence. A state that abdicates its duty to
confront and eradicate DV expects a wife and other female members of the family
to accept violence, where violence occurs, as a part of marital and family
life.
Ironically, the State’s inaction in the face of VAW
is an aberration as the State has an interest and a duty in confronting and
eradicating all forms of violence. Rules against violence and use of force is
the reason societies are built in the first place with the objective of overcoming
the “state of nature” where each person has a right, or license, to everything
in the world which inevitably leads to conflict - a "war of all against
all" (bellum omnium contra omnes) (Hobbes 1660). Confronting
violence is and must be the primary duty of the nation state. It is imperative
that we critically examine how cultural discourses are created, reproduced and
instrumentalised to challenge women’s human rights. Human rights must be the
mediators between the domain of pure value judgments and the domain of factual
judgments and allows us, to be right about our value judgments (Kennedy 1998).
The reason for an appeal to a right is that a right cannot be reduced to a mere
“value judgment”.
It is the State’s duty to intervene in the commission of violence
against another person. This duty however embraces different notions of
responsibility. If society sees no evidence of willingness by the States, as
representative of society, to take effective action to sanction against
violence against women, society will more readily associate VAW as part of its
cultural identity. Failure to prevent and prosecute VAW raises the specter of
impunity.
The
Inter-American Commission in Jessica Lenahan
(Gonzales) v.
Cultural practices have become exercises of power
because of the way that culture is often used in competing ways to fulfill
diverse political agendas. Deconstructing culture in the context of violence
against women therefore involves examining the identities of those claiming
their rights to culture, the authorities which sanction these rights, and in
the event culture is used to claim legal rights, the role of the State as the final
arbiter in recognizing and perpetuating these claims.