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 79