Academic journal article The American University Journal of Gender, Social Policy & the Law

Judicial Developments in the Application of International Law to Domestic Violence

Academic journal article The American University Journal of Gender, Social Policy & the Law

Judicial Developments in the Application of International Law to Domestic Violence

Article excerpt

Introduction...............................................................................................413

I. Domestic Violence Under International Law.........................................415

II. The Due Diligence Standard.................................................................423

III. Judicial Developments and Positive State Obligations........................427

Conclusion.................................................................................................435

Introduction

On June 9, 2009, the European Court of Human Rights delivered its judgment in the case of Opuz v. Turkey} In Opuz, the applicant claimed that the Turkish government violated the European Convention on Human Rights by failing to adequately protect her and her mother from the domestic violence abuse-and eventually murder-perpetrated by the applicant's former husband.* 1 2 In particular, the applicant claimed violations of her right to life;3 her right to be free from torture, inhuman and degrading treatment and punishment;4 her right to obtain an effective remedy before a national authority;5 and her right to be free from gender discrimination.6 In its landmark decision, the European Court of Human Rights did indeed find that the Turkish government had violated the right to life with respect to the killing of the applicant's mother committed by the applicant's former husband. Moreover, the European Court of Human Rights found that the Turkish authorities had violated the applicant's right to be free from torture by failing to protect her from domestic violence. Finally, it found that the Turkish government had also violated the applicant's right of non-discrimination based on sex, thereby significantly recognizing domestic violence as a form of gender discrimination that amounts to state responsibility.7

Similarly, in the recent landmark decision in Jessica Lenahan (Gonzales) v. United States, the Inter-American Commission on Human Rights (IACHR) held the United States accountable for failing to exercise due diligence to protect the applicant and her daughters from repetitive acts of domestic violence as well as for failing to enforce a mandatory protective order against the applicant's former husband which eventually led to the murder of the applicant's daughters.8 Moreover, the IACHR recommended that the United States implement substantive changes to domestic violence law and policy.9 In particular, the Commission's recommendations included, inter alia, that: the state should be responsible for conducting a proper investigation into the systemic failures that led to the underenforcement of the applicant's protection order; the mandatory character of protection orders and other precautionary measures meant to protect women from imminent acts of violence should be legislatively reinforced; and, finally, effective implementation mechanisms should be developed.10

Traditionally, international law understood the concept of state accountability only in the context of human rights violations imputed to the government or any of its agents.* 11 Because domestic violence is comprised of acts committed by private individuals, these crimes have long been deemed to fall outside the scope of state accountability.12 More recently, however, the concept of state accountability has been expanded to include not only state actions, but also-and more importantly-state omissions and failures to take appropriate steps to protect women from domestic violence.13 Therefore, in addition to preventing through its own agents the commission of violence against women, the states are obligated to prevent acts of violence against women committed by private individuals. A state conforms to this obligation by duly investigating relevant allegations, prosecuting perpetrators, and providing adequate remedies for victims.

This Article analyzes judicial developments regarding a state's responsibility to prevent domestic violence focusing on recent decisions by international human rights judicial institutions. …

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