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Text Box: Due Diligence ProjectTRADITIONAL VALUES, CULTURE, RELIGION - WOMEN'S HUMAN RIGHTS

May 30, 2013

2:00 pm - 4:00 pm

Palais des Nations – Room VIII

Geneva, Switzerland

 

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 Canada, the United States, Australia and New Zealand. The findings of this massive endeavor will be released this fall.

 

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. United States of America (2011) recognised that tolerance of violence against women by State organs exposes violence against women as a pattern. Violence against women has decivilized us as a human race. Its practice is normalized in our imagination; its defense bound in the name of culture, honour and religion. The State’s inaction in enforcing the letter of the law coupled with the signals given by the legal and judicial officers that violence against women is tolerated, implicitly sanctioned the continued practice of violence against women, if not provide a fertile terrain for a thriving culture of violence against women.

 

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.