Due Diligence and Gender VIolence

 

Human rights advocates increasingly invoke the due diligence standard to hold States responsible for their actions and omissions with respect to gender violence. This paper traces the development of the due diligence obligation and analyzes how the due diligence principle has been interpreted in key international policy documents and developing gender violence caselaw from the United Nations, European, and Inter-American human rights systems. On its face, the due diligence obligation calls on the State to take responsibility for preventing gender violence, prosecuting and punishing perpetrators, and protecting and providing redress for gender violence victims. The notion of State responsibility for gender violence offered by the due diligence obligation is foundational, and is appealing in many ways, particularly when considering the near-universal history of non-responsiveness, State approval of, and all-too-frequent participation in, gender violence.

We argue that emerging interpretations of the due diligence obligation as applied to gender violence pay insufficient attention to the risks of State intervention. While State response is clearly needed, we should be cautious about the ramifications of the demand. A reflexive focus on State response can encourage an undue emphasis on criminal justice responses with adverse consequences such as arrests of survivors. It risks situating the State as the entity charged with program delivery when other entities would be more effective. An appropriate model of state responsiveness should explicitly grant the State discretion not to respond, or to delegate its response to other stakeholders such as community members, survivors, NGOs, and advocates. It should consider the impact of any intervention on those at the margins — particularly those from racial, ethnic, religious, and sexual minorities — and should take into account the experiences and recommendations of both advocates and survivors. A careful balancing of the need for State accountability with the risk of over-intrusiveness can best advance foundational human rights principles, such as non-discrimination, equality, autonomy, and dignity, in service of ending gender violence and promoting justice.