Monday, January 18, 2010

Inter-American Court rules against Mexico on gender violence in Ciudad Juárez

(In this post, Part 1 of a 2-part series on the "Juárez femicides" case, guest blogger Caroline Bettinger-López analyzes a recent judgment by the inter-American human rights court. Tomorrow, in Part 2, guest blogger Regina Austin will review films about the epidemic of violence at issue before the court.)

The Inter-American Court of Human Rights has issued an important decision, in Spanish, in Caso González y otras v. México, known familiarly as the Campo Algodonero case.
In its decision handed down at the end of 2009, the Inter-American Court (logo above; courthouse below left) ruled that Mexico had violated both the 1978 American Convention of Human Rights and the 1994 Inter-American Convention on The Prevention, Punishment And Eradication of Violence Against Women, known as the Convention of Belém do Pará in recognition of the Brazilian city where it was adopted. It thus ordered Mexico to comply with a broad set of remedial measures, including a national memorial, renewed investigations, and reparations of over $200,000 each to the families in the suit.The decision is important for a number of reasons, including that, for the first time, the Court:
► Considered states’ affirmative obligations to respond to violence against women by private actors;
► Looked at the cases at issue in the context of mass violence against women and structural discrimination; and
► Found that gender-based violence can constitute gender discrimination.
By way of background, Professor Rhonda Copelon (left), CUNY School of Law, gave testimony testified as an expert in the case, and over 50 U.S.-based amici submitted a brief in the case, arguing that the longstanding failure to investigate, prosecute, or prevent the crimes in this case violated Mexico’s obligations under international human rights law. The arguments set out in Rhonda’s testimony and the amicus brief are clearly reflected in the Court’s decision.
(Note that the Campo Algodonero decision is directly relevant to the case of Jessica Gonzales v. United States, which has been filed with the Inter-American Commission of Human Rights by the Human Rights Institute at Columbia Law School, for which I am Deputy Director. This litigation on behalf of Jessica (right) (subsequent to the U.S. Supreme Court's decision in Castle Rock v. Gonzales (2005)) concerns the question of government’s affirmative obligations to protect domestic violence victim-survivors and their children from known risks posed by the perpetrators of domestic violence. (photo credit))
In this post, I set forth key points from the Campo Algodonero decision (a fuller summary is here). Page references are to the Spanish-language decision; an English version is expected soon.

The Court's jurisdiction
The Court concluded (p. 10) that it had jurisdiction over claims brought under Art. 7 of the Convention of Belém do Pará, which provides that states must condemn all forms of violence against women and agree to pursue, by all appropriate measures,

and without delay, policies to prevent, punish and eradicate such violence
through legal, legislative, administrative, and policy initiatives.
The Court futher concluded, however, that it did not have jurisdiction over claims brought directly under that Conventions' Article 8 -- by which states “agree to undertake progressively specific measures” to eradicate violence against women -- or 9 -- by which states “shall take special account” of vulnerable groups of women. The Court emphasized that Article 12 of the Convention provides specifically that the petition system focuses exclusively on Article 7. Still, the Court found that the various articles of the Convention -- including Articles 8 and 9 -- can be used to aid interpretation of Article 7 and of other pertinent Inter-American instruments.
This last pronouncement is important for future advocacy. The programs outlined in Article 8 give definition and specificity to the legal, legislative, policy, and administrative measures for eradicating violence against women that are specified in subsections (c), (e), and (h) of Article 7. Moreover, the measures articulated in Articles 7 and 8 should arguably be tailored to take “special account” of vulnerable groups of women, as per Article 9. Although the Court did not explicitly refer to Articles 8 and 9, they clearly were present in spirit.
Substantive law violations
The Court found (p. 30) that Mexico had violated numerous international legal obligations. Violated provisions of the American Convention included:
► Article 4, life
► Article 5, personal integrity
► Article 7, personal liberty
► Article 19, child
► Articles 8 and 25, judicial protection and due process
► Article 1.1, obligation to respect rights
► Article 2, duty to adopt domestic legal effects
The Court rejected the petitioners’ allegations of Mexico’s violation of Article 11, dignity and honor.
Violated provisions of the Convention of Belém do Pará included:
► Article 7(b), due diligence to prevent, investigate and impose penalties for violence against women
► Article 7(c), penal, civil, administrative provisions to prevent, punish and eradicate violence against women
In considering the violations, the Court reiterated the elements of due diligence originally articulated in the Court's seminal case, Velásquez Rodríguez (1988). By paragraph 236 of that case, relevant to the question of state responsibility for human rights violations committed by private actors are the duties to prevent, investigate, punish, and compensate. The Court further considered the element of discrimination that overlaid all these substantive law violations.

Reparations
The Court ordered vast reparations (p. 113), “keeping in mind the context of structural discrimination in which the facts took place.” With respect to investigation, the Court in paragraph 455 ordered the State to:
► Remove all obstacles to a full investigation;
► Include a gender perspective in the investigation;
► Provide resources necessary to the organs or individuals participating in the investigation to do an adequate, independent and impartial investigation; and
► Publicly announce the results of the process to Mexican society.
With respect to means of satisfaction, the Court ordered remedial measures including publication of the sentence, a public ceremony where the State recognizes responsibility, and a national memorial to the victims.
With respect to guarantees of non-repetition, the Court pointed in paragraph 495 to the lack of data and information that would allow it to evaluate the actions that Mexico has taken to respond to the problem in Juarez. The Court in paragraph 502 then ordered Mexico to:
► Standardize protocols used to investigate crimes related to disappearances, sexual violence, and murders of women, in conformity with international standards that include a gender perspective;
► Create a website and database of genetic information containing information pertaining to the disappeared/murdered women/girls; and
► Implement educational courses and capacity-building programs in human rights and gender.
With respect to the guarantees of rehabilitation, the Court ordered the State to offer free medical, psychological, and psychiatric care to the victims’ families.
With respect to indemnization/compensation, the Court ordered Mexico to pay over $200,000 each to the families in the suit, for material and moral harm.

Sources of fact and law
Interestingly, the Court looked to a variety of sources of fact and law in its decision (p. 39), including reports produced by the Inter-American Commission, the CEDAW Committee, the U.N. Special Rapporteur on Violence Against Women, Amnesty International, the Mexican government’s Commission to Prevent and Eradicate Violence Against Women in Ciudad Juárez, and decisions from the European Court of Human Rights, such as Opuz v. Turkey (2009) (prior IntLawGrrls post). It was not necessary for the Court to do this, since it is a court of law. Doing so is a positive sign, as it indicates that if there is an international trend, the Court might be willing to follow it.

Gender-based violence and discrimination
As the Court undertook its legal analysis, it continually referred (pp. 39, 63, 116) to the general phenomenon of epidemic levels of violence against young women in Juárez, and linked this context of violence against women to gender discrimination.

Judge Medina’s concurring opinion
Also noteworthy was one of the two concurring opinions filed along with the principal Campo Algodonero judgment; specifically, the concurrence by a jurist about whom IntLawGrrls previously have posted, Judge Cecilia Medina Quiroga (right), a Chilean law professor and expert on the law pertaining to violence against women. Medina’s concurrence argued that the Court should have found a violation of the prohibition against torture found in Article 5.2 of the American Convention.

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