A/HRC/35/NGO/X

United Nations

General AssemblyDistr.: GeneralXX May 2017
English only

Human Rights Council
Thirty-five session
Agenda item 3
Promotion and protection of all human rights, civil, political, economic, social and cultural rights, including theright to development

Written statement* submitted by Human Rights Now, a nongovernmental organization in special consultative status
The Secretary-General has received the following written statement which is circulated inaccordance with Economic and Social Council resolution 1996/31.
[15 May 2017]*GE.17-This written statement is issued, unedited, in the language(s) received from the submitting
non-governmental organization(s).

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The International Community must Help End the GloballyPrevalent Practice of Discriminatory Punishment andTreatment of WomenI.

Introduction

Article 2(g) of the Convention on the Elimination of All Forms of Discrimination against Women(CEDAW) requires state parties to repeal all national penal provisions which discriminate againstwomen. However, many states, including CEDAW state parties, continue to administer more severe
penal sanctions and punishments against women than men.
Human Rights Now (HRN), a Tokyo-based human rights NGO, has conducted research into
discriminatory penal punishments against women, focusing on the legal systems of 17 countries
which we have compiled into a forthcoming report.1 Our research has identified several forms ofcriminal punishment targeting women and illustrates how these measures directly or indirectly
affect women in a discriminatory and abusive manner. HRN documented more than 30 forms of
judicial and extrajudicial punishments. Major areas of concern include prosecutions of women for
adultery and fornication, for fleeing abuse, and due to discriminatory procedural protections; as well
as non-legal traditional courts and practices which punish women based on patriarchal culturalnorms. These laws and practices constitute serious violations of the fundamental human rights ofwomen and girls as recognised in major international instruments.2
II.

BackgroundIn the research, HRN uncovered punishments which included sanctions imposed by judicial
authorities formally recognised by the state, as well as extrajudicial punishment adopted or executed
non-officially by public authorities or under their auspices. Formal punishments included official
norms and related penalties (e.g. as derived from criminal codes and judicial decisions), andinformal penalties included those imposed by traditional adjudication bodies such as ‘jirga’ and‘shura’3 tribal councils in Afghanistan, or village councils enforcing customary norms in India 4.

1

The countries investigated are: Afghanistan, Bahrain, Bangladesh, Democratic Republic of Congo, Ethiopia, India,Indonesia, Iran, Iraq, Kuwait, Malaysia, Maldives, Nigeria, Pakistan, Papua New Guinea, Uzbekistan, and Yemen.
2The majority of the countries involved have ratified the ‘International Covenant on Civil and Political Rights’(ICCPR), the ‘Convention on the Elimination of all Forms of Discrimination Against Women’ (CEDAW) and theConvention on the Rights of the Child (CRC).
3
Ali Wardak, State and Non-state Justice Systems in Afghanistan: the Need for Synergy, 32:5 U. Pa. J. Int’l L.1305,
1315-1319 (2011), available athttps://www.law.upenn.edu/journals/jil/articles/volume32/issue5/Wardak32U.Pa.J.Int'lL.1305 (2011).pdf.
4India Village Council Orders Rape of Two Sisters, Aljazeera, Aug. 30, 2015 (explaining that “several Indianprovinces are notorious for village councils (locally called khap panchayats) that have no legal sanction, but yet
adjudicate over personal matters), available at http://www.aljazeera.com/news/2015/08/india-village-council-ordersrapes-sisters-150829145847675.html.

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The research found a discriminatory character in state measures across different aspects of thepunishing process. In certain cases, the criminal rule itself applies exclusively or more harshly towomen. This is frequently the case for adultery-related and sex crimes in the states we investigated.
In other instances, a lack of procedural guarantees in the criminal procedures induces discrimination
against women. For each state’s legal system, our research offered practical and legal
recommendations directed to the respective state’s government on actions to undertake to cease andprevent human rights violations caused by discriminatory criminal punishments against women.
III.

Major Types of Discriminatory Punishment against Women

1. Discriminatory punishments for adultery
Adultery-related punishments (i.e. measures that punish sexual intercourse with someone other thana spouse) are present in the majority of the states we invested, and they constitute the most recurringform of discriminatory punishment HRN documented. 5 Despite often being gender-neutral in theirformulations, measures instituting adultery-related punishments discriminate against women inseveral ways. First, in some Islamic countries men are allowed to have several wives whereas
women are bound to monogamy. 6 This logically leads to a disparity in the application of the norms
amongst married persons, as the same conduct (sexual relations with a person other than one’s firstspouse) can be defined as criminal for women and legal for men to the extent they declare theconduct as part of an additional marriage.
Second, the crime of adultery is often broad enough to be applied to rape victims. For example, thelaws in Malaysia are such that a woman that alleges rape de facto confesses to an extramarital affair,and if she is married and cannot prove her rape, she is subject to being charged with adultery.
Judges also often blame women for their own rapes, as a case in Afghanistan demonstrates when ajudged blamed a woman for her rape for going out at night when it’s unsafe and for not screaming
loud enough to be heard. 7 Attitudes like this see victims of rape more like perpetrators of adultery.
Third, punishments for adultery often include killings and inhuman treatments against women byother civilians, such as honor killings by family, but condoned and sometimes even assisted bypolice who see it as proper punishment. In Iran, for instance, husbands are often granted impunity
for the murder of their wives and sexual partners if the latter are caught having an extramarital
relationship, 8 and male family members are granted impunity for murdering females of their family
who are considered to have brought dishonour to the family, which are unofficially condoned by5

In 14 of the 17 countries analysed the crime of adultery is punished.
This is for example the case of Afghanistan and Iran: Art 36 of THE CIVIL CODE OF AFGHANISTAN; Iran
Human Rights Documentation Center, Gender Inequality and Discrimination: The Case of Iranian Women, March. 8,
2013, available at http://www.iranhrdc.org/english/publications/legal-commentary/1000000261-gender-inequalityand-discrimination-the-case-of-iranian-women.html.
7“I Had to Run Away” – The Imprisonment of Women and Girls for “Moral Crimes” in Afghanistan, Human Rights
Watch (March 2012), 5, available athttps://www.hrw.org/sites/default/files/reports/afghanistan0312webwcover_0.pdf.
8IRAN PENAL CODE, Art. 630.
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authorities as proper punishment for the women’s perceived violation. 9 The report also documented
cases in Bangladesh of women sentenced to death or corporal punishment by traditional village
councils with the tacit assent of the law enforcement agencies of the state. 10Violations of international human rights law
In these examples, the states involved violated several international human rights provisions, suchas articles 2(g) and 16 of the CEDAW which require that legislation and penal codes do notdiscriminate against women, and that women are not discriminated against in matters relating tomarriage and family relations;11 articles 2 and 3 International Covenant on Civil and Political Rights(ICCPR) which oblige states not to discriminate on the basis of sex and to ensure equal enjoymentof rights to men and women; ICCPR article 6, which imposes an obligation on states to observe due
diligence in protecting the right to life of those within their jurisdictions from violations committed
by third parties.12
2. Punishment for women fleeing situations of abuse
HRN’s report documented cases in which women are victimised for attempting to escape situationsof danger and abuse. For instance, in Afghanistan, evidence indicates that women who escapesituations of domestic violence in which their husband is involved can be punished for both‘running away’ and ‘attempted adultery’ and regardless of her motives for escaping. 13 Statistics
show that approximately 51 percent of female prisoners were incarcerated in Afghanistan for“moral crimes.”14
Violations of international human rights law
The states engaged in the measures illustrated in the previous examples have violated the nondiscrimination provisions of CEDAW (articles 2(g) and 16), and ICCPR article 12 which guarantees
the right to freedom of movement.
3. Lack of procedural guarantees

9Ibid, Art. 299.
Habibul Haque Khondker, Modern Law, Traditional ‘Salish’ and Civil Society Activism in Bangladesh, Zayed
University (2012), at 1, [ “Modern Law, Traditional ‘Salish:], available at http://www.isa-sociology.org/publ/Esymposium/E-symposium-vol-2-2-2012/EBul-Khondker-Jul2012.pdf.
11
Committee on the Elimination of Discrimination against Women, Concluding Observations on the Combined
Fourth to Sixth Periodic Reports of Iraq, CEDAW/C/IRQ/CO/4-6, at para. 15-6, (March. 10, 2014)[ “CEDAW Committee Concluding Observations”].
12
Human Rights Committee, General Comment 36, para 28.
13
United Nations Assistance Mission in Afghanistan, Still a Long Way to Go: Implementation of the Law on
Elimination of Violence against Women in Afghanistan, (Dec. 2012) at 22.
10

14

United States Department of State, 2015 Human Rights Report: Afghanistan, at 39 available athttps://www.state.gov/j/drl/rls/hrrpt/humanrightsreport/index.htm?year=2015&dlid=252957#wrapper.

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Several types of punishments documented in HRN’s report originate from a lack of procedural
guarantees offered to the accused. In Bangladesh, for example, a traditional, informal arbitration
process called salish proceedings is used to adjudicate issues related to customary norms andinterpersonal and familiar conflicts amongst which most concern alleged “infringements” of moralbehavior by women. 15 Decisions are usually biased against women, who are punished “forperceived deviations from patriarchal norms,” such as participation in public life or non-conformity
with conventional norms of sexual behavior and subject to cruel punishment.
The report documented cases in Papua New Guinea, in which the crime of sorcery—a crime which
predominantly targets only women—despite being abolished by formal legislation, was still
implemented by village courts, whose magistrates, often with little education and legal knowledge,
were not aware of its repeal and hence still applied it.16 The inherent gender-discriminatory natureof sorcery17 coupled with the incapacity of village courts to protect women who are designated assorcerers, results in women being subjected to discriminatory punishments. Cases of womenlynched by angry mobs have also been reported.18
Violations of international human rights law
The examples provided illustrate violations by states of several human rights such as the right to afair trial enshrined in ICCPR article 14 and the right to liberty and security of persons under ICCPR
article 9. They also violate the anti-discrimination guarantees contained in the CEDAW articles 2(g)and 16.
IV.

Recommendations

Gender discriminatory laws and practices such as the above have deeply negative impacts on
women’s empowerment, human rights, and access to justice. They contribute to cultural norms
which discriminate women more broadly and foster impunity for sexual violence against women.

15An informal arbitration process in this context refers to one that is not established by law, but whose decisions arecommonly acknowledged by a community. A formal arbitration process refers to one that is established by law, suchas a court of law. See Habibul Haque Khondker, Modern Law, Traditional ‘Salish’ and Civil Society Activism in
Bangladesh, Zayed University (2012), at 1, [hereinafter “Modern Law, Traditional ‘Salish’”], available at
http://www.isa-sociology.org/publ/E-symposium/E-symposium-vol-2-2-2012/EBul-Khondker-Jul2012.pdf.
16
Melissa Demian, Sorcery Cases in Papua New Guinea’s Village Courts: Legal Innovation Part IV, In Brief,
Australian National University (2015) [hereinafter “Sorcery Cases in PNG’s Village Courts”], available at
http://ips.capcapssgmips.capcapssgm.bellschool.anu.edu.au/sites/default/files/publications/attachments/2015-12/IB2015-27-Demian_0.pdf.
17
Women are six times more likely to be accused of witchcraft than men: United Nations Human Rights Council,
Report of the Special Rapporteur on violence against women, its causes and consequences, Rashida Manjoo (Missionto Papua New Guinea), A/HRC/23/49/Add.2, at 8 (March 18, 2013) [hereinafter “Manjoo Report”], available at
http://reliefweb.int/sites/reliefweb.int/files/resources/Mission%20to%20Papua%20New%20Guinea.pdf.
18
Helen Clark, Sorcery and Sexism in Papua New Guinea, The Diplomat, June 2, 2015 [hereinafter “Sorcery andSexism”], available at http://thediplomat.com/2015/06/sorcery-and-sexism-in-papua-new-guinea/.

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HRN urges all states to seriously review their legislation and agencies addressing penal punishment
and repeal any law or practice which legally or de facto discriminates against women and girls.
States must also take concrete measures to ensure that even non-discriminatory laws are notpracticed discriminatorily against women, ensure that informal tribunals and counsels cannot
enforce discriminatory punishments whether legally or extra-judicially, and implement procedural
reforms to protect women from discriminatory treatment.
HRN calls on the international community to play a more active role in facilitating the repeal andreform of discriminatory penal laws and practices against women and girls in all states.
HRN calls on the UN Working Group on discrimination against women in law and in practice andthe Special Rapporteur on violence against women to conduct an investigation on this topic andoffer effective recommendations.
HRN urges the Human Rights Council and General Assembly to pass resolutions calling on states
to repeal gender discriminatory laws and practices and making other related calls.

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