Femicides: a new challenge to human rights law?

Abstract

This essay is about the phenomenon of femicides, the most extreme act of gender – based violence. Through an exploration of the ongoing subject of femicide versus homicide and the placement of the feminist theory for this subject, the challenge for the phenomenon to be seen as real and not a radical feminist idea, is pointed out. Subsequently, femicide is further analyzed through a human rights approach and the national legislation on femicide in Latin America is studied, through a comparative case study of Mexico and Argentina, as two dominant examples on the challenge to eradicate the phenomenon. A conclusion and some final comments follow.

Introduction

“As the world grapples with the devastating impact of the COVID-19 pandemic and its negative impact on women, a pandemic of femicide and gender-based violence against women is taking the lives of women and girls everywhere. I call on all States and relevant stakeholders worldwide to take urgent steps to prevent the pandemic of femicide…” (OHCHR | Urgent Action Needed to End Pandemic of Femicide and Violence against Women, Says UN Expert, 2020).

Gender based violence can take several forms, from forced marriage and female genital mutilation to ‘honor crimes’ and femicides, and that makes it a central issue in International Human Rights Law. The UN Special Rapporteur on violence against women, its causes and consequences, Dubravka Šimonovic, referred to the outburst of femicides as a pandemic, in order to underscore the need for closer attention to this startling gender disparity in female killings. Data that has been collected since 2015, shows that more than 80% of victims of all intentional killings involving intimate partners, are women (OHCHR | Urgent Action Needed to End Pandemic of Femicide and Violence against Women, Says UN Expert, 2020). In the United States only, one third of the women killed, are murdered by an intimate partner, in comparison to the 3% of men killed by an intimate partner (Fox & Zawitz, 2007). Since these statistics are referring to hetero-normative relationships, it is wise to be mentioned that men can also be abused by their female intimate partners but the rates aren’t equal, the injury is less frequent and severe and the reasons derive from a sense of self – defense, rather than control (e.g. Schwartz, 2005; Kimmel, 2002). As Boagrad (1988) wrote: “as feminists, we believe that the social institutions of marriage and family are special contexts that may promote, maintain, and even support men’s use of physical force against women” (p.12), for his power and control over her to be maintained (Yllö, 1993). It’s not a surprise that research has found that continuous or ongoing relationship violence is often the result of domestic violence death of an intimate partner (Campbell, Glass, Sharps, Laughon, & Bloom, 2007). Femicides do not end at home, though. They consist a part of this patriarchal society, where women’s lives appear to be of minor importance:

“Femicide takes many different forms, for example: racist femicide (black women killed by white men); homophobic femicide, or lesbicide, (lesbians killed by heterosexual men); marital femicide (women killed by their husbands or exhusbands); serial femicide; mass femicide (including the deliberate transmission of the HIV virus by rapists); situations where women are permitted to die as the result of misogynous attitudes or social practices (female genital mutilation, illegal botched abortion); female infanticide; unnecessary lethal surgery (hysterectomies and clitoridectomies).” (Weil, Corradi, Naudi, Stevkovic, Kouta, Buran, Gill, Nudelman, Boira, Meshkova, Schröttle, Marcuello-Servos, & Grzyb, 2018, pp. 80 – 81).

That’s why, when it comes to femicides, violence is gendered and it is better understood through a gender inequality framework only.

An ongoing questioning on whether the term femicide is appropriate or not is a nowadays trend in mass media (see, for instance, the Greek 2021 journalism; Αγαθοπούλου, 2021; Γκόγκογλου, 2021; Αναστασόπουλος, 2021, etc.). This phenomenon, figuratively, is well depicted in the famous question Juliet asks Romeo ‘what’s in a name?’. Although Juliet sees the names as purely artificial conventions, feminists see these ‘artificial’ terms as the roots of a transformative conventional perception, that raises social awareness, policy making, scientific research and produces changes in reality. After all, the whole concept of civil society wouldn’t be the perfect paradigm for the social constructivism, philosophical discourse? So, ‘that which we call a rose’ – says Juliet – ‘by any other name…’ would definitely not smell as sweet. Femicide is not a neologism; it gives a social subsistence to a behavior that is more than a criminal behavior, like the homicides. “It encompasses a cultural, political, legal and penal framework.” (Marcuello-Servós, Corradi, Weil, & Boira, 2016, p. 969).

Since 1976, that Diana Russell, a rather implicit fond of ‘politics of naming’, coined the term “femicide”, the violent death of women and girls has become a social phenomenon (Corradi, Marcuello-Servós, Boira, & Weil, 2016). In the patriarchal society the female body (and the whole female existence) is perceived as a “naturally” weak, disabled, handicapped, dependent female body (Young, 1980) that needs to be tamed “if it challenges its femininity, its condition as object, through a loud and subversive embodied subjectivity” (Cohen Shabot, 2015, pp. 234). The female existence is trapped in the fundamental tenet of patriarchal power, that is distributed under the terms of gender inequality, and, although the gender stratification has changed a lot over the years, patriarchy seems to still shape the motivational and situational contexts of femicides and the sense of ownership over women (Taylor & Jasinski, 2011). “The tradition of male ownership of women and male needs for power are played out to horribly violent conclusions. The message of femicide is that many men believe that control of female partners is a prerogative they can defend by killing women” (Campbell, 1992, p. 111, in Taylor & Jasinski, 2011).

The twenty first century has started with an escalating exploitation of gender based violence by the mass media, which is transformed into a political and commercial game. Although, violence against women has become more visible through media, the veil of silence covering domestic violence is unlikely to break thanks to this pseudo – openness of the society that mass journalism profitably promote. After all, being open and asking for help through legal protection seems to actually heighten women’s lethality risk (Gauthier & Bankston, 2004), while separation and divorce present the most dangerous risk for women, because leaving an abusing relationship leads to an abandonment rage of the men, due to an unwanted switch of power (Browne, Williams, & Dutton, 1999 in Taylor & Jasinski, 2011). This overwhelming and emotional focus to gender based incidents of violence, and in particular to femicides, seems to create a a patchwork of contradictory stakes, that burdens the scientific work (Jaspard, 2008). Shalva Weil makes clear that making femicide visible, as a real social phenomenon, and not a radical feminist idea, is one of the most important challenges nowadays (Marcuello-Servós et al., 2016).

Femicide and Human Rights

In the case of femicides, the most fundamental right of a human being, the right to life is taken from another person who believes that is entitled to take a woman’s life away. “If I can’t have you, no one can”, is an issue of estrangement very common in femicides [this estrangement and entitlement is very well depicted in the case of femicide on Rhodes, Greece, in which the man wrote: “there is no sense in living without the one I love”, before he committed suicide and after killing his partner (Femicide on Rhodes: Man Guns down Former Partner, Commits Suicide (UPD), 2021)]. Gender equality, including the elimination of violence against women and girls, is one of the United Nations’ goals and achievements of the 2030 Agenda for Sustainable Development. What are the efforts, then, of the international community to keep up with this goal?

The most prominent and important international treaty is the Convention on the Elimination on all forms of Discrimination Against Women (CEDAW). It was drafted by the Commission on the Status of Women and adopted by the General Assembly in 1979. Up to date, 188 states have acceded and/or ratified the Convention. CEDAW is crucial to the fight for gender equality, because it introduces two fundamental innovations in the human rights anti – discrimination law; first and foremost, it is a gender asymmetric instrument. That is, it recognizes the urgency on protecting women’s rights and promoting their inclusion in the global human rights framework, in order to achieve gender equality. Second, all the states that have signed the Convention have an obligation to adopt all the appropriate measures to end gender inequality and advance women’s lives. Regular reports on the judicial, administrative, legislative, or other measures adopted, should be sent, by the member states, to the CEDAW Committee, usually every four years (ŠImonović, 2014). Although, CEDAW, as an international convention has a legal – binding character, it is important to be stressed out that it can not impose penalties.

When it comes to violence against women, the Convention does not contain a specific provision, besides the Articles 1, 2 and 16 of the Convention. In 1989, the General Recommendation No. 12 on violence against women, is adoptedand in 1992 further explanations is given by the CEDAW Committee, on General Recommendation No. 19:

“Gender-based violence, which impairs or nullifies the enjoyment by women of human rights and fundamental freedoms under general international law or under human rights conventions, is discrimination within the meaning of Article 1 of the Convention. These rights and freedoms include: the right to life; the right not to be subject to torture or to cruel, inhuman, or degrading treatment or punishment; the right to liberty and security of person; etc.” (CEDAW General Recommendations Nos. 19, 1992, ¶ 7).

The only UN document that focuses explicitly on violence against women is the Declaration on the Elimination of Violence against Women that was adopted in 1993, but has no legally binding character. Other no legally binding documents are the resolutions of 2013 and 2015 (United Nations on Drugs and Crime, 2019, p. 46), aiming to reduce gender-related killings of women and girls and encourage states to adopt strategies and responses for that aim. Another no legally binding UN instrument is the Femicide Watch Initiative, which was created in 2015, by the UN Special Rapporteur on violence against women, its causes and consequences, Dubravka Simonovic. The aim of the Femicide Watch Initiative is to collect compatible data on femicide rates at national, regional and global levels. That was a very important first step, since it sparked a growing wave of regional femicide watches’ establishments (OHCHR | Femicide Watch Initiative, n.d.).

Another important treaty is the Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women. Since part three of this essay is referring to Mexico and Argentina, this Convention is wise to be mentioned. The Inter-American Convention on the Prevention, Punishment, and Eradication of Violence against Women, or better known as the Belém do Pará Convention, was adopted by the Inter-American Commission of Women of the Organization of American States in 1994. Up to date 32 countries have acceded and/or ratified the Convention. Mexico and Argentina are two of them. The fall of military dictatorships and the democratic opening of many Latin American countries at the end of twentieth century, contributed significantly on the mission of the Inter-American Commission of Women, which enforced the emergence of women’s groups and the creation of government agencies devoted to addressing domestic violence (such as the Delegacias in Brazil). The startling point of the Commission was the creation of the Belém do Pará Convention, in order “to develop new international norms that the governments of the Americas might accept, respect, and enforce” (Meyer, 1998, p. 141). The Convention protects women’s rights and lives in the public and the private sphere, according to article 2:

“Violence against women… that occurs within the family or domestic unit or within any other interpersonal relationship…, that occurs in the community and is perpetrated by any person… in the workplace, as well as in educational institutions, health facilities or any other place; and that is perpetrated or condoned by the state or its agents regardless of where it occurs.” (Inter-American Convention on the Prevention, Punishment, and Eradication of Violence Against Women, 1994, art.2).

Moreover, “states are also expected to undertake legislative and administrative measures to bring national laws and regulations into conformity with the convention and “establish fair and effective legal procedures for women” subjected to violence” (Meyer, 1998, p. 142). A rather weak reporting requirement exists for keeping in track the member states’ progress.

National legislation on femicide in Latin America; a comparative case study of Mexico and Argentina

In general, femicide rates in Latin America are particularly high, according to the United Nations Office on Drugs and Crime (2019). In Latin America and the Caribbean, although the rates of female gender – related killings and female homicides are high, the level of violence against women, as measured in the survey data (United Nations Office on Drugs and Crime, 2019), seems to be relatively low when compared with that in other regions. That is, because the phenomenon is under – researched. Crimes against women permeate Latin America region. Out of the 32 countries in the world, where femicide most frequently occurs, 17 of them are Latin American countries (Waiselfisz, 2015 in Gabor, 2016).

¡Ni Una Más! , ¡Ni Una Menos! (Not one more! Not one less!) – Mexico

Studies have shown that in Mexico, 56.7% of urban and 44.2% of rural women have participated in interpersonal acts of violence and in more than 60% of the cases, the main aggressor was the legal or common – law husband (Ramírez & Uribe, 1993 in Rico & United Nations, 1997). Although these numbers depict the situation from three decades ago, the things doesn’t seem to have changed nowadays; in 2013, Mexico was ranked sixth in the world for crimes against women with a rise in femicide by 46% (Waiselfisz, 2015 in Gabor, 2016). Gender based violence, femicides and women missing have become so common that in 2015, 11 Mexican states declared a “gender alert” (Lakhani, 2015) ; 7 women, on average, are killed every day in Mexico, while 66% of femicides attacks are committed by family members, boyfriends and husbands (Fast Facts: Statistics on Violence against Women and Girls, 2010).

“Since 2007, several Latin American countries have introduced the crime of “femicide” or “feminicide” in their penal codes or in separate laws” (United Nations, 2014, p. 2). Mexico has adopted legal definitions that significantly broaden the set of circumstances in which the law is applicable, such as the decree that amends and adds various provisions to the Federal Criminal Code, the General Law for Women’s Access to a Life Free from Violence, the Organic Law of Federal Public Administration and the Organic Law of the Attorney General’s Office. According to the article 325 of the General Law for Women’s Access to a Life Free from Violence, what is counted as femicide is when “killing of a woman subjected to sexual violence and/or bodily mutilation prior to the killing, including acts of necrophilia, killing of a woman in the context of family violence, killing of a woman by a current or former intimate partner, killing of a woman whose deceased body was disposed of or exhibited in a public space” (United Nations on Drugs and Crime, 2019, pp. 59 – 60). These national legislation formations are reported in CEDAW Committee in 2016 (CEDAW/C/MEX/9, 2017).

Mexico is a federal state and, inevitably, the Mexican Federal Penal Code on femicide is different from legislation at the state level. For instance, although, femicide is defined by the national law, there is no general agreement between the states on whether femicide is a separate category itself or a different, more aggravated form of homicide. In what is counted as femicide, the term “gender” seems to be potentially problematic, since gender is not the same as sex, and subsequently, a self – identified female person may not fall in this category. Punishments vary between sates, too; the minimum sentence for femicide is 20 years in prison and the maximum is 70 years. Some states, such as Jalisco, has an extra addition for “lesbofeminicidio” (the murder of a woman because she loves/loved another woman) and “transfeminicidio” (the murder of because she is a transgender or transsexual woman), and in Puebla there is also the reason of “if the victim is pregnant” (Ahrens-Viquez, 2020).

These differentiations between each state legislation makes it difficult for third – parties to oversee the situation and work as control mechanisms, and this incomplete harmonization of state – level legislation has been highlighted in the Concluding Observations by CEDAW Committe (CEDAW/C/MEX/CO/9, 2018, par. 23.c). Mexico has ratified both CEDAW and the Convention of Belem do Para. According to the Concluding Observations on the ninth periodic report of Mexico (CEDAW/C/MEX/9, 2017), the Committee recognizes the positive efforts made by Mexico; the amendments to the Genral Act on Women’s Access to a Life Free from Violence, which included a provision that criminalizes “feminicide” in 2016 (CEDAW/C/MEX/CO/9, 2018, par. 4.e). The Committee, though, raises awareness on the harmful, persistent patterns of gender – based violence in all forms and especially “feminicide” (CEDAW/C/MEX/CO/9, 2018, par. 23.a) and reiterates that Mexico needs to ensure that “feminicide” is criminalized in all state penal codes and the criminal law is effectively enforced (CEDAW/C/MEX/CO/9, 2018, par. 24.c). Unfortunately, the latest annual report and the follow up submitted in 2017 and 2020 respectively, on the Implementation of the Belém do Pará Convention, is in Spanish and it’s not possible to comment on these. The importance of the Belém do Pará Convention can be seen in the case of Gonzalez, Monreal and Monarrez (“Cotton Field”) v. Mexico in 2001, in which the Inter-American Court on Human Rights decided that Mexico was responsible for violating Claudia, Esmeralda and Laura Bernice’s human rights, by failing to meet its obligations under Article 7(b) and 7(c) of the Belem do Para Convention, regarding states’ obligation to prevent, punish and eradicate violence against women (Meegan, 2016).

¡Basta de femicidios! (No more femicides!) – Argentina

Between 2008 and the first semester of 2012, 1.154 femicides were recorded by the NGO Casa del Encuentro’s Femicide Observetor, since there were no official statistics (Fernández, 2012). In a study of 2009, the rate of female suicides was almost doubled than the one of homicides, and in some provinces this proportion had been substantially larger. Out of 35% of women’s suicides, only 1.5% of the cases were cataloged as homicides, a finding that is suspiciously interesting (Fernández et al., 2009 in Fernández, 2012). In 2015, a woman was killed every 30 hours (Joseph, 2017). Last year Argentina recorded more than 250 femicides, one every 35 hours. What is interesting in Argentina, though, in comparison to Mexico, are the high rates of gender based violence by police officers. Between 2013 and 2020, almost 6.000 gender violence complaints against police officers were filed, but 80% of these police officers still remain in uniform. Between 2008 and 2020, 214 women were killed by police officers or former police officers. (Naundorf, 2021). If, in these numbers were added the 3.000 women’s deaths per year due to illegal abortions and the numbers of kidnapped women due to human trafficking, what would be Argentina’s annual femicide toll?

It can’t be denied that Argentina is also facing a “gender alert” situation. Although many Latin American countries have introduced the crime of femicide in their penal codes, Argentina considers as “aggravated homicide” the “killing of a woman by a family member, – killing of a woman by a current or former intimate partner, killing of a woman because of her sexual and gender identity, killing of a woman for pleasure, greed, racial or religious hatred, killing of a woman by a man in the context of gender-based violence” (United Nations on Drugs and Crime, 2019, p. 57), according to their Law No. 26, 791. The punishment can vary, from life imprisonment to 8 – 25 years in jail. In Argentina’s penal code, femicide is defined through a domestic violence context; that is, the murder of a woman by a relative or an intimate partner, even if they don’t live together at the time of the crime. This can be identified in the seventh periodic report to CEDAW Committee: “The text of the law establishes as an offense the killing of a woman “by a man” … where the intent is to “cause suffering to a woman which whom the man has, or in the past has had, a relationship” (CEDAW/C/ARG/7, 2015, par. 9). It doesn’t refer to the femicides that occur outside of this context, which make these crimes really difficult to prosecute under these laws (Joseph, 2017). Moreover, in 2016, Argentina’s President Mauricio Macri proposed a three – year plan, starting in 2018, of electronic tracking for men prone to violently target women (Pestano, 2016). No follow ups on this plan has been published yet. Moreover, in 2019, Argentina included provisions on political gender – based violence by adopting Law 27533, which “adds to article 6 of Law 26485 the provision that intimidating, harassing, dishonoring, discrediting, persecuting, bullying, or threatening women so as to prevent or restrict the development of their political life or access to political rights and duties is considered public political violence” (Rodriguez-Ferrand, 2020). Through this legislation the state could have also addressed the issue of police violence towards women as a political act of systemic gender – based violence, including the term femicide.

Regarding the international human rights law, Argentina has ratified both CEDAW and the Convention of Belem do Para. In the Concluding Observetions of the seventh periodic report CEDAW Committee recognized Argentina’s efforts to adopt measures to eliminate gender – based violence, but there were concerns regarding the persistence of femicides’ incidents (CEDAW/C/ARG/CO/7, 2016, par. 18). Unfortunately, the latest annual report and the follow up submitted in 2017 and 2020 respectively, on the Implementation of the Belém do Pará Convention, is in Spanish and it’s not possible to comment on these. It is sure, that the International Community recognizes the efforts that still need to be made to eradicate the phenomenon of femicide in Argentina.

Conclusion

So, after all, are femicides a new challenge in international human rights law?

The short answer is yes, it is. Despite the many international, regional, national legislation, Conventions, Declarations, Resolutions, General Recommendations etc., developed and coming into force, in order to eradicate violence against women, tangible progress in protecting and saving women’s lives of femicides has not been made in recent years. Still, many women find themselves alone in front of gender – based violence, and unprotected by the criminal justice system, that fail to respond adequately or do not have the capacity and knowledge to do so. As the United Nations on Drugs and Crime wrote on their global study on homicide on booklet 5, in 2019:

“Gender-sensitive approaches that are women – centered, rather than considering women as mere objects of protection and sources of testimony, are more likely to build confidence and trust in criminal justice institutions and increase the number of women reporting violence as well as the number of perpetrators brought to justice” (United Nations on Drugs and Crime, 2019, p. 55).

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