facts of the case. In other words, there must be
an obligation, within the primary rule, for the
State to prevent, respond or remedy abuses, and
the facts must be able to show that the State has
failed to discharge that obligation.
Since this decision, there has been increasing
evidence that due diligence is becoming the
accepted benchmark against which human rights
obligations are to be interpreted. In Osman
v. United Kingdom,122 the European Court of
Human Rights held that the State could be held
responsible for a failure of its police forces to
respond to harassment that ultimately resulted
in death (although the United Kingdom was not
found to be responsible in this case). In Akkoç
v. Turkey, the European Court of Human Rights,
in the context of the right to life, explained that
the State’s primary duty is “to secure the right to
life by putting into place effective criminal-law
provisions to deter the commission of offences
… [and] law-enforcement machinery for the
prevention, suppression and punishment of
breaches”.123 The Court continued (citing Osman
v. United Kingdom) that this duty may extend
in appropriate circumstances “to a positive
obligation on the authorities to take preventive
operational measures to protect an individual
whose life is at risk from the criminal acts of
another individual.” The African Commission
on Human and Peoples’ Rights has similarly
explained that “the State is obliged to protect
right-holders against other subjects by legislation
and provision of effective remedies … Protection
generally entails the creation and maintenance
of an atmosphere or framework by an effective
interplay of laws and regulations so that
individuals will be able to freely realize their
rights and freedoms”.124
Osman v. The United Kingdom (23452/84) [1998]
ECHR 101 (28 October 1998).
122
Akkoç v. Turkey (22947/93; 22948/93) [2000] ECHR
458 (10 October 2000), para. 77.
123
124
SERAC and CESR v. Nigeria, para. 46.
The connection between trafficking and violence
against women has already been noted,
and it is in this context that the due diligence
standard has been repeatedly affirmed by the
international community as an appropriate
measure of a State’s obligation with respect to
the conduct of private entities.125 Decisions of
regional courts have confirmed this trend. In
Fernandes v. Brazil, a case of violence against
a woman by her husband, the Inter-American
Commission on Human Rights held the Brazilian
authorities responsible for failing to protect
and respond as required under the American
Convention of Human Rights.126 In relation to
the disappearances of and attacks on women in
Ciudad Juárez, Mexico, the same Commission
The Declaration on the Elimination of Violence against
Women defines gender-based violence as including all
forms of such violence occurring within the family and
the general community as well as violence “perpetrated
or condoned by the State, wherever it occurs” (art. 2)
and requires States to “exercise due diligence to prevent,
investigate and … punish acts of violence against women
whether these are perpetrated by the State or private
persons” (art. 4). The Committee on the Elimination of
Discrimination against Women’s general recommendation
No. 19 confirms that discrimination prohibited under
the Convention on the Elimination of All Forms of
Discrimination against Women (defined to include genderbased violence) is “not restricted to action by or on behalf
of Governments” (para. 9) and requires States to “take
appropriate and effective measures to overcome all forms
of gender-based violence, whether by private or public
act” (para. 24 (a)). The Beijing +5 Outcome Document
confirms that: “it is accepted that States have an obligation
to exercise due diligence to prevent, investigate and
punish acts of violence against women, whether those acts
are perpetrated by the State or by private persons, and
provide protection to victims” (para. 13).
125
The Commission found that ineffective judicial action,
impunity for perpetrators and the inability of victims to
obtain compensation all demonstrated that Brazil lacked
the commitment to take appropriate action to address
domestic violence. The Commission considered Brazil to be
liable for failure to meet the standard required in the OAS
Convention on the Prevention of Violence against Women,
article 7 (b), i.e. the standard of due diligence: Maria
Gives Penha Maia Fernandes v. Brazil, Inter-American
Commission on Human Rights, Case 12.051, Report No.
54/01, OEA/Ser.L/V/II.111 Doc. 20 rev. at 704 (2000),
paras. 56-57.
126
COMMENTARY
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