WUNRN
Due Diligence Project Website:
http://www.duediligenceproject.org/Home.html
The Due
Diligence Framework:
A Tool to
Gauge Political Will and Public Will
to
Eliminate Violence against Women
Zarizana Abdul Aziz & Janine
Moussa, Due Diligence Project
Introduction
Violence against women is a
violation of human rights and one of the most extreme and pervasive forms of
discrimination against women, severely impairing and nullifying the enforcement
of their rights.[1] Lack of strong societal condemnation of VAW and of
proper enforcement of existing laws ‘operate as a means to maintain and
reinforce women’s subordination’.[2] It is a major obstacle to achieving
gender equality and a serious violation of the human rights of women and girls.
The Due Diligence Project set out
to interrogate the prevalence of VAW, focusing on both the existence of laws,
policies and programmes and more importantly, their implementation. The DDP
reached out to over 300 civil society organisations in over 40 countries and
asked them not only about what State policies, laws and programmes were
initiated or supported by their own States but also their assessment on the
effective implementation of such policies, laws and programmes.[3]
The Due Diligence Principle
The Due Diligence Project takes as
its starting point the international legal principle commonly termed the ‘due
diligence principle’. The principle holds States accountable for human rights
abuses committed not only by the State or State actors, but also by non-State
actors.[4]
The principle obligates States to take reasonable measures to prevent human
rights abuses before they occur, such as adopting relevant laws and policies,
and effectively prosecute and punish perpetrators if abuses occur.
The due diligence principle is a
critical tool in the formulation of accountability. By making the State
accountable for violence perpetrated by non-State actors, public international
law recognizes that VAW, regardless of who commits it, constitutes human rights
violations. Due diligence has also ruptured the artificial ‘public/private
sphere’ divide and the dichotomy between State and non-State actors, as States
are now not only permitted but obliged to enter the so-called ‘private sphere’
where States have traditionally been barred.
The Due Diligence Project
The Due Diligence Project (DDP) is
a research advocacy project. The DDP aims to enhance and add content to the
understanding of a State’s ‘due diligence’ obligation to prevent, protect,
prosecute, punish and provide redress for VAW; to assess the status of
compliance with the principle through State action and inaction and to develop
a Due Diligence Framework with a set of guidelines for compliance.[5]
While smart partnerships between CSOs and the State must be encouraged and have
often created innovative and successful strategies, the due diligence principle
demands that States bear the ultimate responsibility for eliminating VAW.
It is instructive at this stage to
share some the findings of the DDP. The findings indicate that despite State’s
declaring their commitment to end VAW, this commitment unfortunately does not
translate into effective action. Even when laws and policies may have had
promising beginnings, lack of commitment in its implementation by State
agencies, have resulted in States ultimately not having done enough to meet
their State obligation to eliminate VAW.
This can be seen when civil society
organisations were asked about the effectiveness of preventive programmes.
Across regions, most respondents awarded low rating to preventive programmes’
effectiveness. Furthermore only a few States seem to have built-in systems to
evaluate their plans or the results achieved.
Due
Diligence Project Survey: Effectiveness of preventive programmes (1 = not at
all, 5 = very much)
Effectiveness of programmes very
much depend on addressing and eliminating risk factors that increase the
prevalence of VAW. According to respondents, most programmes fail to do this.
Effective programmes must also aim to transform society by changing mindsets
and modifying behaviour to reject VAW, its justifications and excuses, which
are embedded in gender inequality, gender discrimination and negative
socio-cultural and religious perceptions of women. In essence to generate
public will.
This requires States to reach out
to change the mindset of cultural and religious leaders and those involved in
administering and adjudicating plural legal systems. ‘What is particularly
needed at the community level is the reinforcement of positive elements of
culture while raising awareness of the oppressive nature of certain practices
pursued in the name of culture through a process of “cultural negotiation”
involving families, intellectuals and community leaders.’[6]
Due
Diligence Project Survey: Risk factors that increase prevalence of VAW
(n=300, 1=not at all; 5=very much)
Translating political will or
political commitment into effective implementation also means ensuring that the
States laws, policies and programmes are accessible to women. This can only be
done if States are able to address the victims’/survivors’ needs and fears to
enable the victims/survivors to confidently come forward to seek redress.
Due
Diligence Project Survey: Obstacles to victims/survivors taking action (n=300)
Due Diligence Framework on State
Accountability
Based on the findings, the DDP
formulated the Due Diligence Framework. The Due Diligence Framework translates
the essential attributes of the due diligence principle to make them
universally applicable and contextually relevant at a country level. It is a
tool for States to assess their own progress in implementing human rights and
formulating human rights-based public policies and programmes.
Without exception most if not all
States included in the DDP research evince some level of political will to
eliminate VAW. All States, except one, for example have ratified the Convention
on the Elimination of All Forms of Discrimination against Women (CEDAW).[7] All States have legislation
criminalizing forms of VAW. States have also at different times, declared their
political commitment to eliminating VAW.
The Due Diligence Framework was
formulated to assess State action (and not to rank States). It serves as
contextually relevant and useful guidelines for State action to address and end
VAW. The objective of developing these guidelines is to encourage States to use
them to assess progress in implementing women’s human rights; formulating
policies, programmes and laws based on human rights and highlight violations
and factors that increase the risk of violations. For CSOs, these guidelines
may provide precise information for monitoring human rights policies,
programmes, laws and mechanisms.
The Due Diligence Framework is
applicable to situations that include State obligation in prevention,
protection, prosecution, punishment
and provision of redress and reparation (the five P’s with
respect to VAW). These P’s are interlinked, with overlapping issues. For
example, respondents to the DDP survey note that fear of repercussions from the
perpetrator is the biggest hindrance to women taking action against VAW.
Therefore, States should look into making protection of
victims/survivors a priority, effectively prosecute perpetrators
to remove impunity, ensure punishment is commensurate with the
offence and capable of preventing recidivism and deterring others, provide
adequate reparations to victims/survivors to enable them to rebuild
their lives away from the perpetrator, if required, and address women’s fears
effectively in prevention campaigns.[8]
As can be seen, political will,
even if States were to act on it, cannot by itself be the gauge for State
compliance with its due diligence obligation to eliminate VAW. The guideline
requires States to transform society by changing mindset and behaviour to
reject VAW, both of State agencies themselves and the public at large.
Transformative change requires
every level of society to join in the struggle to eliminate VAW. Real change
will only result from partnerships at every level — governments,
inter-governmental organizations, civil society, academia and grassroots
advocates. Linking this to State obligation under the due diligence principle,
the due diligence principle requires States to effectively act on their
political commitment and will to eliminate VAW, and similarly generate public
will so to do.
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