In November 2015, a decade after the sexual assault and murder of a young Guatemalan woman, the Inter-American Court of Human Rights (‘the Court’) released a ground-breaking judgment further clarifying the scope and content of states’ responsibility in addressing gender-based violence.
On 12 August 2005, Claudina Isabel Velásquez Paiz, a 19 years old student, went to a party. During the course of the evening her parents became concerned for her safety when they lost contact with her. They contacted the police but were informed that a formal report could only be filed 24 hours after a ‘disappearance’. Their daughter’s body was discovered the following morning. After failing to obtain justice at the domestic level, the family took the case to the Inter-American Commission of Human Rights. The Commission referred the case to the Court enabling it to delve into the relationship between discrimination and violence against women in Guatemala which has one of the highest rates of femicide, or gender-motivated killings of women in the world.
The judgment is noteworthy in that it casts further light on what specific steps are required of a state to satisfy its due diligence obligations within the particular context of violence against women. It thus builds on the Court’s jurisprudence established in the 1988 Velasquez Rodriguez case.
While the Court acknowledged that Guatemala had taken some measures to address the pervasive generalised violence against women across Guatemalan society, the steps taken since August 2005 had been far from sufficient. In the Court’s view, the endemic nature of the violence against women in Guatemala was such that whenever a report is made to the police about a woman who has gone missing, a duty of strict due diligence arises from the very first hours of the disappearance (paras 122 to 135). It thus followed that Guatemala had violated Articles 4.1, 5.1, 1.1 of the American Convention on Human Rights (ACHR) and Articles 1.1 and 7 of the Inter-American Convention on the Prevention, Punishment and Eradication of Violence Against Women (IACVAW).
The Court also concluded that the fundamental lack of due diligence on the part of state officials throughout the investigation process had deprived the family of access to justice in violation of Articles 8.1 and 25 of the ACHR. The Court’s most damning criticisms of the investigation process were directed at the culture of gender bias prevalent within both the Guatemalan police force and the prosecuting authorities. Citing a string of discriminatory practices by state officials, the Court found that Guatemala had violated Article 1.1 ACHR and 7 IACVAW on the basis that the conduct of state officials amounted to gender stereotyping which was incompatible with the international law on human rights (paras 173 to 183).
Among the discriminatory practices taken into account by the Court was a report filed by the Prosecutor in which the motive of the murder was described as “passionate possibly under the influence of alcohol”. On this point, the Court relied upon the expert evidence of Professor Christine Chinkin, Director of the Centre for Women, Peace and Security, at the LSE, who cautioned against the very concept of a “crime of passion” which is founded on gender stereotyping that justifies violence against women. To describe the conduct of the aggressor as “passionate” serves to justify the violent action and to concurrently blame the victim. The Court noted that the Prosecutor’s attitude was not isolated or exclusive to the authorities leading the investigation but, rather, reflected a general tendency among all officials to discredit the victims and shift the blame onto them by pointing to factors such as their lifestyle or clothing. Moreover, the prejudicial and discriminatory attitude among the authorities was such that there was a failure to conduct the investigation from a gender perspective notwithstanding the ample evidence to indicate that the murder was a form of gender based violence. The treatment of Claudina Velásquez’s death as simply a homicide constituted a form of violence against women and discrimination (paras 186 to 187).
The judgment represents one of the latest examples of the way in which the due diligence standard has the potential to address the root causes of gender discrimination and violence against women.