State Responsibility for Domestic Violence
last updated October 26, 2012
One hindrance to the effort to define domestic violence as a human rights violation was the traditional view that international law is applicable only to state action. State action involves two types of acts: 1) actions done by government officials or 2) actions by private citizens that were explicitly condoned or ordered by the government. Private actors, it was thought, should be regulated only be domestic law, not by international law. This left a gap in the protection created by international human rights law, however, as many human rights violations occur at the hands of ordinary citizens, not just government officials. In domestic violence cases in particular there were questions about whether governments could be held responsible for actions that some viewed to be outside the domain of international law, namely abuse occurring in a private home between intimate partners.
 
The Due Diligence Standard
In the past few decades, however, state responsibility for human rights violations by private actors began to solidify. In 1988, the Inter-American Court of Human Rights, in the case of Velasquez Rodriguez v. Honduras, published a now-famous opinion requiring Honduras to "take reasonable steps to prevent human rights violations and to use the means at its disposal to carry out a serious investigation of violations committed within [its] jurisdiction, to identify those responses, to impose the appropriate punishment and to ensure the victim adequate compensation."[1] This standard became known as the “due diligence” framework, as the admonition to “take reasonable steps” is sometimes interchanged with urging states to “exercise due diligence.” The due diligence framework created a “measuring stick” to assess State action by.[2] It also clarified that a State can be held accountable under international law for the actions of its citizens if the State fails to take reasonable steps to prevent, investigate, and punish the actions of its citizens that violate human rights.
 
The due diligence standard was applied violence against women, including domestic violence, in the Declaration on the Elimination of Violence against Women (DEVAW). In Article 4(c), States are urged to “exercise due diligence to prevent, investigate and, in accordance with national legislation, punish acts of violence against women, whether those acts are perpetrated by the State or by privates persons.”[3] This was echoed in General Comment 19 by the Committee on the Elimination of All Forms of Discrimination against Women (CEDAW), which stated, “States may also be responsible for private acts if they fail to act with due diligence to prevent violations of rights or to investigate and punish acts of violence.”[4] Due diligence, or reasonable actions, in the context of violence against women means not only making a good-faith effort to find and implement effective measures,[5] but also honoring non-discrimination principles by showing the same level of commitment to addressing violence against women as the State would show for other forms of violence.[6]
 
Work of the Special Rapporteur
The topic of state responsibility has been repeatedly addressed by the Special Rapporteur on Violence against Women. Building on the standard laid out in DEVAW, in 2006 Special Rapporteur Yakin Erturk enumerated concrete actions that could constitute “reasonable steps” toward preventing violence against women, protecting women from violence against women, punishing perpetrators, and proving a remedy to victims of violence against women.[7] Current Special Rapporteur Rashida Manjoo has also announced that her 2013 thematic report will be on “State responsibility for eliminating violence against women.”[8] In preparation for the thematic report, the Special Rapporteur’s office has provided a short summary paper on the due diligence standard for violence against women.[9] >>Learn more
 
 

[1] Velasquez Rodriguez Case, Inter-American Court of Human Rights, Ser. C, No. 4, Judgment of July 29, 1988, 1989 28 ILM 291, available at http://www1.umn.edu/humanrts/iachr/b_11_12d.htm.
[2]Rashida Manjoo, “Summary Paper: The Due Diligence Standard for Violence against Women” (2011), http://www2.ohchr.org/english/issues/women/rapporteur/docs/SummaryPaperDueDiligence.doc.
[3] Declaration on the Elimination of Violence Against Women, Art. 4(c), G.A. res. 48/104, 48 U.N. GAOR Supp. (No. 49) at 217, U.N. Doc. A/48/49 (1993), available at http://www.unhchr.ch/huridocda/huridoca.nsf/%28Symbol%29/A.RES.48.104.En?Opendocument.
[4] Committee on the Elimination of Discrimination against Women, General Recommendation 19, ¶19, Violence against women (Eleventh session, 1992), U.N. Doc. A/47/38 at 1 (1993), reprinted in Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, U.N. Doc. HRI/GEN/1/Rev.6 at 243 (2003), available at http://www1.umn.edu/humanrts/gencomm/generl19.htm.
[5] Yakin Erturk, The Due Diligence Standard as a Tool for the Elimination of Violence Against Women, ¶ 35, U.N. Doc. E/CN.4/2006/61 (2006), available at http://www.unhcr.org/refworld/docid/45377afb0.html.
[6] Rashida Manjoo, supra note 2.
[7] Yakin Erturk, supra note 5.
[8] “State responsibility for eliminating violence against women,” UN Office of the High Commissioner for Human Rights, http://www.ohchr.org/EN/Issues/Women/SRWomen/Pages/VAW.aspx.
[9] Rashida Manjoo, supra note 2.