III.      THE LAW AND SYSTEMS OF PROTECTION APPLICABLE TO VIOLENCE
            AGAINST WOMEN IN CIUDAD JUÁREZ

          A.          International law

          99.          Ensuring that women can freely and fully exercise their human rights is a priority in the Americas.  The fundamental obligations of equality and nondiscrimination serve as the backbone for the regional human rights system, and the Convention of Belém do Pará expresses the commitment of the States Parties to prevent, punish and eradicate violence against women, itself a manifestation of discrimination based on gender.  The priority given by the Commission and its Special Rapporteurship to the protection of the rights of women also reflects the importance given to this area by the member States themselves. 

100.          The principles of non-discrimination and equal protection are pillars in any democratic system, and serve as fundamental bases of the OAS system.  Article 3(l) of the OAS Charter sets forth the core principle that “the American States proclaim the fundamental rights of the individual without distinction as to race, nationality, creed or sex.” 

          101.          The Mexican State has been a Party to the American Convention on Human Rights since its accession on March 2, 1981.  Article 1 of the American Convention sets forth the obligation of States Parties to respect and ensure all recognized rights and freedoms without discrimination on the basis of, inter alia, sex.[28]  More specifically with respect to the principle of nondiscrimination, Article 24 recognizes the right to equal protection of and before the law, and Article 17 provides that the State shall ensure the equal recognition of rights and “adequate balancing of responsibilities” of spouses within marriage.  In recognizing the fundamental rights of all persons without distinction, the Convention of course also protects such basic rights as those to life, liberty and personal integrity (Articles 4, 5 and 7).  Trafficking in women is expressly prohibited in Article 6.  The rights of children are accorded special measures of protection in Article 19. 

          102.          The purposes of the regional human rights system and the principle of efficacy require that these guarantees be implemented in practice.  Accordingly, where the exercise of any of these rights is not already ensured in law and practice, Article 2 of the American Convention commits the States Parties to adopt the legislative and other measures necessary to give them effect.  Further, the American Convention requires that the domestic system provide available and effective judicial recourse to persons alleging the violation of their rights protected under national law or the Convention.  Where such domestic remedies prove unavailable or ineffective, the inter-American system provides for the possibility of recourse through its individual petition system.

103.          Of special relevance for the present report are the rights and obligations set forth in the Inter-American Convention on the Prevention, Punishment and Eradication of Violence Against Women (“Convention of Belém do Pará”), which Mexico ratified on December 12, 1998.[29]  In reflecting a hemispheric consensus on the need to recognize the gravity of the problem of violence against women and take concrete steps to eradicate it, the Convention:

-        Defines violence “any act or conduct, based on gender, which causes death or physical, sexual or psychological harm or suffering to women, whether in the public or private sphere;”[30]

-        expressly acknowledges the link between gender violence and discrimination, indicating that such violence is a manifestation of the historically unequal power relations between women and men, and that the right to be free from such violence includes the right to be free from discrimination and to be valued and educated free of stereotypes;[31]

-        recognizes that such violence affects women in a multitude of ways, preventing them from exercising other fundamental rights, both civil and political, and economic, social and cultural rights;[32] and,

-        requires that States Parties apply due diligence to prevent, investigate and punish such violence wherever it occurs – whether within the home or the community and perpetrated by individuals, or in the public sphere and perpetrated by state agents.[33]

          104.          Accordingly, the State is directly responsible for violence against women perpetrated by its agents.  State responsibility may also arise when it fails to apply due diligence to prevent or respond to such violence when perpetrated by individuals.

105.          Further, States Parties must ensure that these obligations are given effect in the domestic legal system, and that women at risk for or subjected to violence have access to effective judicial protection and guarantees.[34]  The mechanisms for supervision of compliance include the processing of individual complaints alleging violations of the principal obligations through the Commission’s existing petition system.[35]          

106.          The Mexican State is Party to a number of other international instruments that provide important protections for the rights of women.  In broad terms, Articles 1 and 2 of the Universal Declaration of Human Rights, and Articles 2 and 3 of both the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights recognize the right to equality and the prohibition of discrimination.  The Convention on the Elimination of All Forms of Discrimination against Women, to which the Mexican State has been a Party since 1981, reinforces the equality and non-discrimination provisions of the International Bill of Rights by defining discrimination against women, and requiring States Parties to adopt specific measures to combat it.[36]  The Mexican State ratified the Optional Protocol to that Convention on March 15, 2002.  Again, in terms of looking at the interrelation between violence and discrimination based on gender, it is important to note that the definition of discrimination set forth in the UN Convention applies to gender-based violence.[37]  Discrimination includes:

acts that inflict physical, mental or sexual harm or suffering, threats of such acts, coercion and other deprivation of liberty.  Gender-based violence may breach specific provisions of the [UN] Convention regardless of whether those provisions expressly mention violence.[38]

107.          Reference should also be made to the UN Declaration on Violence against Women, which complements these norms, and shares many basic principles with the Convention of Belém do Pará.  The Mexican State is also Party to the Convention on the Rights of the Child, and in 2002 ratified its two optional protocols relative to the Participation of Children in Armed Conflicts, and to the Sale of Children, Child Prostitution and the Use of Children in Pornography, respectively.

          108.          It should also be noted that the situation in Ciudad Juárez has drawn the attention and concern of different instances within the United Nations.  Following her 1999 visit to analyze the situation of the right to life in the Mexican State, the UN Special Rapporteur on extrajudicial, summary or arbitrary executions expressed:

that the deliberate inaction of the Government to protect the lives of its citizens because of their sex had generated a sense of insecurity amongst many of the women living in Ciudad Juárez.  At the same time, it had indirectly ensured that perpetrators would enjoy impunity for such crimes.  The events in Ciudad Juárez thus constitute a typical case of gender-based crimes which thrive on impunity.[39]

In his report from January of 2002, the UN Special Rapporteur on the independence of judges and lawyers expressed that the lack of an effective judicial response to the killings had “severely weakened the rule of law in Ciudad Juárez.”[40]  Prior to her last mission to Mexico, High Commissioner Mary Robinson expressed renewed concern for the persistence of impunity in Mexico, including with respect to the unexplained killings of women.[41]  In August of 2002, in the context of its consideration of Mexico’s CEDAW report, the UN Committee on the Elimination of Discrimination against Women expressed its great concern with respect to the killing and disappearance of women in Ciudad Juárez, and with the lack of conclusive investigation, prosecution and punishment.[42]  Most recently, the Director of UNIFEM expressed concern about the killings and impunity, and highlighted the need for additional attention to meeting the necessities of surviving family members.[43]

          B.          National law

109.          Applicable legal provisions at both the federal and state levels have recently been reformed to incorporate positive advances.  Through reforms adopted on August 14, 2001, Article 1 of the Constitution of the Republic was amended to prohibit all forms of discrimination, including on the basis of sex.  Article 4 sets forth that men and women are equal before the law, and that every person has the right to freely determine the number and spacing of their children.  The Constitution also recognizes that men and women have the same rights with respect to employment, education, nationality, remuneration and participation in political life.  With respect to the Federal District, it may be noted that family violence has been typified as a crime in the Criminal Code, as has marital rape, and violence has been introduced as a cause for divorce in the Civil Code.

          110.          The laws of the State of Chihuahua that apply in cases of violence against women have been subject to recent reforms.  Following an intense debate in the legislature, that included some consultation with civil society in the final stages, family violence is addressed in Article 190 of the Criminal Code.  This Article provides that violence between family members or those who have shared another kind of emotional relationship shall be penalized by a prison sentence of between 6 months and three years.  While the coverage of the provision is ample, including physical, verbal, emotional or sexual violence, the scope of application is limited to acts or omissions that are recurring.  It is crucial that such violence be penalized as a matter of law; accordingly, this Article provides an important form of protection.  However, the limitation that the violence in question be of a recurring nature has been criticized and removed from similar legislation in other jurisdictions. 

111.          Sexual crimes are covered in title fourteen of the Criminal Code of Chihuahua.  In relation to the reforms mentioned, rape is now sanctioned as a crime when committed against either the wife or the concubine of the perpetrator.  With respect to statutory rape, the provision indicating that the crime would not apply in the case of a girl not deemed “honest” was eliminated.  The definition of sexual harassment was also clarified.

112.          Revisions to the Civil Code of Chihuahua adopted in 2001 added two provisions that concern family violence.  The first sets forth that each and every member of the family or domestic unit has the right that the other members respect his or her physical, psychological and sexual integrity, and to this effect can count on the support and protection of public institutions in accordance with the law.  The second defines family violence in broad terms, and indicates that the members of such groups are obliged to avoid conduct generating such violence.  

113.          In sum, the Commission and its Special Rapporteur have taken due note of the debate engendered by a set of reforms to the Criminal Code enacted prior to those now in effect.  Those prior reforms had been rejected by many as contradicting the principles of nondiscrimination and protection of the rights of women.[44]  The Commission and its Special Rapporteur value the initiative of the Government of Chihuahua to open a new space for dialogue with some inclusion of civil society to arrive at the reforms now in force.  The reforms now in place demonstrate progress in bringing legislation into conformity with the obligations of ensuring equality and nondiscrimination.  The Commission and its Special Rapporteur have also taken note of the recommendation by the Special Congressional Commission established to follow-up on the killings to the effect that the Civil Code, Criminal Code and Code of Criminal Procedure should be subjected to further reforms designed to improve responses to the prevailing violence against women.[45]  As the Government of Chihuahua itself recognized in its March 2002 presentation before the Commission, the legislation can be perfected, and is not sufficient in and of itself.  It is important that efforts continue to bring legislation into conformity with the principles of equality and nondiscrimination.

          C.          Role of national entities

          114.          Within the Executive Branch, at the federal level, the National Women’s Institute, INMUJERES, was created in 2001 in order to promote non-discrimination, equality of opportunities and treatment between the genders, and the ability of women to fully exercise their rights and participate in the political, cultural, economic and social life of the nation.  INMUJERES’ six-year work program, the National Program for Equality of Opportuntiies and Non-Discrimination 2001-2006 (PROEQUIDAD) applies to all sectors of the Federal administration and sets specific goals, projects and programs designed to achieve those.  Among the priority areas of PROEQUIDAD is the struggle to prevent, punish and eradicate violence against women.  At the time of the Special Rapporteur’s visit, a national program on family violence and violence against women was being designed.  The Institute also promoted the creation of the Inter-Institutional Panel to coordinate actions on violence in the family and violence against women that brings together representatives from each branch of the federal Government and representatives of civil society.

115.          Most states within Mexico, including Chihuahua, have recently created Women’s Institutes.  The state-level Institutes and INMUJERES are to collaborate as equals in the goal of institutionalizing the perspective of gender throughout the country. 

          116.          The Special Rapporteur met with the President of INMUJERES during her visit to discuss actions being taken to address the situation in Ciudad Juárez.  The President of INMUJERES, Patricia Espinosa, indicated that the situation was of particular concern to the Government, and that INMUJERES had been working closely with the authorities in Chihuahua to initiate mechanisms of dialogue and inter-institutional collaboration.  She referred to the Interinstitutional Panel established in Ciudad Juárez to coordinate initiatives against violence within the family and violence against women along the lines of the national model mentioned above.  With respect to the specific situation of the killings, she referred to steps being taken to establish another panel (which subsequently initiated its work in October) to seek further solutions. 

          117.          Within the Legislative branch, Commissions on Gender and Equity have been established in the Chamber of Deputies and the Senate of the Congress of the Union.  The Special Rapporteur met with members of the Commissions on Gender and Equity during her visit, and received useful insights into the problem of violence against women in Ciudad Juárez.  She also met with members of a Special Commission of the Chamber of Deputies established to provide follow-up on those crimes.  Members of the latter had been in Ciudad Juárez in late 2001 to interview family members, representatives of civil society and diverse State representatives, and collect other information.  The work and initial reflections of that Special Commission have provided valuable insight into the situation.  Representatives of civil society have indicated that they consider it would be beneficial for the Special Commission to report publicly on the results of its work.

          118.          The National and State Human Rights Commissions also have a role to play in the safeguarding of fundamental rights and freedoms.  The valuable work of the CNDH in issuing Recommendation 44/98 on the killings of women in Ciudad Juárez and the deficiencies in the official response has been discussed in detail above, in section II.E.1.a.  However, as noted, there has been no reported institutional follow-up by the CNDH to ensure the implementation of the important recommendations contained therein, and, as of the Special Rapporteur’s visit, the Human Rights Commission of the State of Chihuahua had had no substantive involvement in this situation.         

          119.          To summarize, important steps have been taken at both the national and state levels to bring legislation into conformity with the obligations of equality and nondiscrimination, and to create mechanisms responsible for incorporating the perspective of gender in the design and implementation of public policy.  These steps to improve the framework of applicable guarantees must now be complemented with concrete actions to implement those guarantees in practice. 

IV.      THE RIGHT OF WOMEN TO BE FREE FROM VIOLENCE AND THE OBLIGATION
           OF THE MEXICAN STATE TO RESPECT AND ENSURE THAT RIGHT

          A.          General considerations

120.          Violence against women constitutes a violation of multiple human rights.  The right to be free from violence in both the public and private spheres set forth in Article 3 of the Convention of Belém do Pará accordingly includes the right to the protection of other basic rights, inter alia, to life, personal integrity, liberty, to be free from torture, to equal protection before and of the law and to effective access to justice set forth in Article 4. Article 5 affirms that the “States Parties recognize that violence against women prevents and nullifies the exercise of these rights.”  Article 6 further specifies that the right of every woman to be free from violence includes the right to be free from discrimination and to be valued and educated free of stereotyped patterns of behavior.  There is thus an integral connection between the guarantees set forth in the Convention of Belém do Pará and the basic rights and freedoms set forth in the American Convention in addressing the human rights violation of violence against women.

121.          With respect to the situation in Ciudad Juárez, it must also be taken into account that a significant number of the victims have been girls under the age of 18.  Under both the American Convention (Article 19) and the UN Convention on the Rights of the Child, children are entitled to special measures of protection. 

122.          Violence against women is, first and foremost, a human rights problem.  It has been accorded priority in the region as such, with the conviction that its eradication is essential to ensure that women may fully and equally participate in all spheres of national life.  Violence against women is a problem that affects men, women and children; it distorts family life and the fabric of society, with consequences that cross generations.  Studies have documented that having been exposed to violence within the family during youth is a risk factor for perpetrating such violence as an adult.  It is a human security problem, a social problem and a public health problem.

123.          In this regard, among the key problems the Special Rapporteur has confirmed with respect to the situation in Ciudad Juárez are, first, an insufficient awareness that women’s rights are human rights, and that the right of women to be free from violence is itself a human right that requires the Mexican State to adopt measures of prevention and response.  This is illustrated, for example, in the tendency on the part of many in both the State and non-state sectors to focus on the killings characterized as “serial” as the legitimate source of concern because of their brutality.  In this regard, there is an insufficient understanding that these deaths, whether perpetrated in connection with sexual crimes by unknown perpetrators, or in connection with domestic violence by intimate partners, are equally violative of the right to be free from violence, and equally manifest the objectification or dehumanization of the victim based on gender.  The fact that the so-called “serial” killings are portrayed in the media and viewed by many as shocking, while the killings arising in connection with domestic violence are given less attention, demonstrates the problem.

124.          In this regard, addressing the phenomena of violence against women in Ciudad Juárez requires addressing not only the killings, but sexual crimes and domestic violence as well.  Domestic violence is in some ways especially emblematic.  As the UN Special Rapporteur on Violence against Women has characterized:

At its most complex, domestic violence exists as a powerful tool of oppression.  Violence against women in general, and domestic violence in particular, serve as essential components in societies which oppress women, since violence against women not only derives from but also sustains the dominant gender stereotypes and is used to control women in the one space traditionally dominated by women, the home.[46]

125.          Second, there remains a significant tendency on the part of some officials to either blame the victim for placing herself in a situation of danger, or to seek solutions that emphasize requiring the victim to defend her own rights.  In this regard, while the official discourse in Ciudad Juárez has somewhat improved since the National Human Rights Commission established a notorious practice on the part of officials of discrediting the victims -- by pointing to the length of their skirts, or that they went out at night, or even that they were “easy” or prostitutes -- there remains a marked tendency to look first to the conduct of the victim or family for explanations.  Further, the Special Rapporteur noted that when officials focus on public security initiatives, many tend to think in terms of self-defense courses for women.  While those may be helpful, they do nothing to address the root sources of the problem. 

126.          Third, to the limited extent the gender dimensions of these crimes get taken into account at the official level, they tend to be dealt with as a women’s issue or a women’s problem, as opposed to being addressed through the incorporation of the perspective of gender in the design and implementation of public policy in Ciudad Juárez.  (As noted above in section E.2, during her visit, the Special Rapporteur was able to perceive a certain division based on gender in the roles taken by women and men in relation to the killings.)

127.          Fourth, and perhaps most importantly, while there is agreement on the part of the State sector and civil society that violence against women in Ciudad Juárez is a problem of grave proportions, the Special Rapporteur’s analysis confirms that the problem has not been met with measures that correspond to that gravity.  The fact that the vast majority of these crimes against women remain in impunity requires an urgent response. 

128.          The violence described in the overview above has its roots in concepts of the inferiority and subordination of women.  When the perpetrators are not held to account, as has generally been the case in Ciudad Juárez, the impunity confirms that such violence and discrimination is acceptable, thereby fueling its perpetuation.  As the Inter-American Court of Human Rights has emphasized with respect to human rights violations generally, “the State has the obligation to use all the legal means at its disposal” to combat impunity because it “fosters chronic recidivism” of such violations, “and total defenselessness of victims and their relatives.”[47] 

129.          In looking at this duty with respect to domestic violence specifically, the Commission has emphasized that the failure to effectively prosecute and punish indicates that the State in effect condones it.  Where such inaction and tolerance is part of a pattern, “[t]he condoning of this situation by the entire system only serves to perpetuate the psychological, social and historical roots and factors that sustain and encourage violence against women.”[48]  It creates a climate that is “conducive to domestic violence” because society sees no will on the part of the State to take effective action against it.[49]

130.          While officials of both the Federal and Chihuahua Governments have expressed their commitment to combating such impunity, that commitment has yet to be translated into effective action and results in terms of the lived experience of the women of Ciudad Juárez.

B.       The obligation of the Mexican State to apply due diligence to respond to such violence when it occurs so as to ensure the investigation, prosecution and punishment of those responsible

          131.          It is precisely because of the pernicious nature of gender-based violence and the effects of the impunity in which this violation is usually left that the key obligation of States Parties to the Convention of Belém do Pará is to apply due diligence to prevent, investigate and punish such violence – whether in the home, the community or the public sphere.  This principle of due diligence is also closely connected with the norms of the American Convention, particularly those obliging States Parties such as the Mexican State to respect and ensure each of the protected rights, and to provide effective judicial protection and guarantees.

          132.          In general terms, effective judicial protection and guarantees signify the right of an individual to resort to a court when any of her rights have been violated (whether a right protected by the Convention, the constitution or the domestic laws of the State concerned), in order to obtain a judicial investigation conducted by a competent, impartial and independent tribunal that will establish whether or not a violation took place.  In this regard, when a human rights violation is the outcome of an act classified as criminal, the victim is entitled to obtain from the State a judicial investigation that is conducted “purposefully with the means at its disposal” in order to prosecute and punish those responsible.[50] 

133.          As the jurisprudence of the regional system has affirmed over many years, it is not the formal existence of such remedies that demonstrates due diligence, but rather that they are made available and effective.  In this sense, “[i]f the State apparatus acts in such a way that the violation goes unpunished and the victim’s full enjoyment of such rights is not restored as soon as possible, the State has failed to comply with its duty to ensure” the rights of those subject to its jurisdiction.[51]  “The same is true when the State allows private persons … to act freely and with impunity to the detriment of rights recognized by the Convention.”[52]  Due diligence requires an “effective search for the truth” by the State at its own initiative.[53]  The investigation must be prompt, thorough, impartial and in accordance with international standards in this area.[54]

          134.          With respect to the situation of violence against women in Ciudad Juárez, the Special Rapporteur has placed special emphasis on the question of due diligence in investigation for two reasons.  First, because an adequate investigation provides clarification of the facts and the foundation required to then comply with the duty to prosecute and punish the perpetrators.  Second, because the vast majority of the crimes presently at issue have yet to reach the stage of conviction and punishment. 

135.          With respect to the duty to apply due diligence to investigate, the Special Rapporteur has identified a series of priority concerns. First and foremost, impunity for violence against women remains the general practice rather than the exception.  Of the approximately 285 killings under study, dating back to 1993, only 20% have reached the stage of conviction.  With respect to the so-called “serial” killings within this group, only one person has been convicted in relation to one death.

136.          The investigations of the killings and other crimes have been and remain plagued by irregularities.  To the extent family members and lawyers assisting them have been able to access the case files, reports indicate that those continue to be incomplete.  In some cases certain identification tests have not been done, in others the results are not in the files.  The investigations continue to be characterized by delay.  The families of those whose bodies may have been recovered in November of 2001 still don’t have conclusive confirmation that the remains correspond to their loved ones.  Additionally, there appears to be little effort to follow-up on the oldest cases.  While there have been presumed “serial” perpetrators in detention since 1996 and 1999, they have yet to be tried.  Such delay is problematic from an evidentiary point of view, as testimonial and material evidence tends to deteriorate or become more difficult to produce over time.  It is, moreover, extremely painful for the family members, who have no sense of emotional closure, and no sense of increased security from knowing the perpetrators have been tried and placed behind bars.

137.          The importance of due investigation cannot be overestimated, as deficiencies often prevent and/or obstruct further efforts to identify, prosecute and punish those responsible.  According to Articles 1 and 2 of the UN Code of Conduct for Law Enforcement Officials, which closely relate to the principle of due diligence, such officials must fulfill their duties under the law “by serving the community and by protecting all persons against illegal acts.”  In performing their duties, they must “respect and protect human dignity and maintain and uphold the human rights of all persons.”   In many cases, these standards are not being met in Ciudad Juárez.  Nor, in general, are the prosecutors meeting the standard of paragraph 12 of the UN Guidelines on the Role of Prosecutors, which requires that they “in accordance with the law, perform their duties fairly, consistently and expeditiously, and respect and protect human dignity and uphold human rights, thus contributing to ensuring due process and the smooth functioning of the criminal justice system.” 

138.          In its observations to the draft report, in relation to the theme of impunity specifically, the State indicated that:

In conformity with the affirmations of the Special Rapporteur, the Mexican Government is convinced that denouncing the human rights violations against the women of Ciudad Juárez, obtaining justice, and restoring their dignity through the recognition of what they have suffered, constitute a point of reference for future societies. 

With this conviction, the Office of the Special Prosecutor has been strengthened through the allocation of greater human and material resources, so that it may investigate denunciations concerning the killing and disappearance of women in that city promptly and effectively.

139.          With respect to the deficiencies that have been referred to above, while the State accepts that in the first stages of the situation “there were various delays and irregularities,” it maintains that “it must be recognized that 93 of those responsible for the killing and disappearance of women, including accomplices and collaborators, have been delivered to justice.”  Accordingly, the State sustains that “it cannot be considered that a phenomenon of impunity prevails in Ciudad Juárez, insofar as this concept implies the inactivity of the Government to sanction those responsible.”  In this regard, the Commission and its Rapporteur value the efforts of the State oriented toward overcoming serious deficiencies in the investigation and punishment of those responsible.  They wish to reiterate, however, that the individualization of less than 100 alleged authors, including accomplices and collaborators, in the approximately 300 killings and almost 300 disappearances is not a satisfactory result, as it leaves the vast majority unresolved.

          140.          The full participation of all sectors–the Federal, State and municipal Governments, working with civil society–is urgently required to provide accountability for and redress these killings.  While it may be the case that criminal jurisdiction corresponds as a matter of internal law to the State of Chihuahua for many of these crimes, the Federal Government bears responsibility under international law to assure, directly and through the corresponding local authorities, that the rights of those within the Republic are protected and ensured.  The Federal Government has specialized resources and capacities that must be brought to bear.  In addition to technical assistance and support, the Federal Government has the capacity to prioritize attention to this situation through the allocation of additional material resources and the decisive application of political will to insist on results. 

          141.          With respect to the issue of coordination among governmental authorities, in its observations on the draft report, the Mexican State reported that, given the seriousness of the problem, diverse federal departments had held meetings to “study the most adequate manner to collaborate jointly with state authorities in order to promote the investigations of the disappearances and killings committed against women in Ciudad Juárez,” as well as to establish policies to prevent violence against women.  The Mexican State indicated that each department of the Federal Government that participates in this process “will act in accordance with its competences.”  More specifically, it indicated:

It is a real fact that the primary competence corresponds to the Government of the State of Chihuahua.  For this reason, the Government of the Mexican State considers that the solution is not to substitute obligations, but to jointly adopt measures that permit both Governments to work, in order that they comply with the duties that correspond to them.

In this sense, the Prosecutor General of the Republic will continue cooperating with the Prosecutor General of Justice of Chihuahua in the investigation and prosecution of the murders of women in Ciudad Juárez, for example, providing expert support in the area of criminology, forensic photography, forensic genetics, technical-juridical assistance, as well as with the actions necessary to request the cooperation of foreign police corps.

The Commission and its Special Rapporteur fully value the technical-juridical support provided by the Federal Government as a crucial contribution to the strengthening of the practical aspects of the official response to these crimes.  At the same time, they wish to underline that, in view of the responsibility of the Federal Government in the area of human rights, as well as the gravity of the situation in Ciudad Juárez, it is fundamental that priority attention be given to this situation through the allocation of additional material resources and the application of political will to insist on the production of results.

          142.          At present, there is impunity both for the killings and for the negligence and irregularities in the official response thereto.  Notwithstanding the findings of recommendation 44/98 of the National Human Rights Commission to the effect that the investigations evaluated were grossly deficient, and that the authorities responsible should be held accountable for having failed to discharge their responsibilities under the law, information received indicates no efforts to hold any functionaries of Ciudad Juárez responsible– administratively, disciplinarily or criminally.  The existence of norms and procedures to ensure effective official responses to such crimes is only one part of the equation; the other part is that those who fail to comply with requirements under the law be held to account.

143.          One of the repeated complaints the Special Rapporteur has received is that family members are not able to obtain adequate information about the legal process and their rights within it.  Family members and the representatives of civil society who assist them have indicated that the Special Prosecutor’s Office is not providing a sufficient response in this regard.  In particular, while one of the stated goals of the Inter-Institutional Panel established to address these crimes was a review of the case files, recent reports from nongovernmental sources suggest that the PGJE is declining to provide that access.  Further, many working on this problem indicated that it is often the case that family members require effective legal assistance to protect and vindicate the rights of their loved one and their own rights in the legal system, but lack the resources to hire attorneys. 

          144.          There continues to be a strong, highly counterproductive level of tension between many of the relevant authorities, family members of victims and representatives of civil society seeking justice in these cases.  The Special Rapporteur has continued to receive complaints that family members seeking information about the status of investigations have been met with responses ranging from unhelpful to arrogant to openly hostile.[55]  In a few cases, family members reported having been told to cease their inquiries or other activities in search of justice. 

          145.          With respect to the question of how to confront impunity, in its observations to the draft report, the State reported that:

With full awareness that impunity affects all spheres of society, diverse mechanisms have been established to inform victims and their families, in a transparent way, in order to disseminate the necessary measures that jointly permit civil society and the Government to promote and strengthen a culture of denunciation, and prevent the repetition of violent acts against women, in accordance with the recommendations formulated by the Rapporteur.  The mesas de diálogo with civil society are one example of these mechanisms.

The Commission and its Rapporteur value this recognition of the importance of the right to invoke judicial protection and guarantees for victims and their families, as well as of the importance of receiving the information necessary to exercise this right effectively.  They also share the view of the Government that these inter-institutional panels may offer an important contribution in this regard, as indicated in other sections of this report.  It is, however, indispensable that the Mexican State ensure that this recognition of the rights of the victim and her family, both to judicial protection and guarantees as well as to the related information, is respected by all the competent authorities.  It is equally important that the administrative, disciplinary or criminal measures necessary to hold such authorities to account for any failure to comply be put into practice.

146.          As indicated above, family members have the right to press for due investigation, and the Mexican State has the obligation to provide effective judicial protection and guarantees, with due respect for the dignity of the victims and family members.  The families have the right to information, and to be heard in these processes under both international and national law.  While Article 20 of the Constitution provides for the right of victims to name a lawyer to assist the prosecutor with the investigation and trial processes (“coadyuvancia”), that right cannot be exercised absent access to the relevant information and assistance of legal counsel. 

          147.          Reports from civil society indicate that efforts on the part of family members and nongovernmental organizations to press for justice in these cases, and of the press to report on these have in some cases met with threats or attacks, but that this intimidation has not been met with sufficient official attention or condemnation.  A number of those affected indicated that they had not even approached the authorities to denounce the situation out of a lack of confidence or fear of further reprisals.  Further attention needs to be given to the role played by human rights defenders in the pursuit of justice in these cases, and the risks they may face.  Where required, these risks must be given priority attention through protective measures and due investigation.  In addition to being required to protect the individuals affected, this attention would constitute an important confidence-building mechanism in the process of developing effective multisectoral collaboration.

148.          The climate in Ciudad Juárez remains characterized by extremely high levels of lack of confidence, mistrust and politicization.  Both the State and non-state sectors referred, in particular, to a strong lack of citizen confidence in the police.  Additionally, relations between the Office of the Special Prosecutor for these crimes and representatives of civil society have often been marked by mistrust and tension.  As noted above, efforts to address these crimes have also been hindered by an extremely high degree of politicization.  In this regard, the Commission values the establishment of inter-institutional panels for dialogue as a promising means to build confidence and create spaces for collaboration within different State sectors and between the State and civil society.  Initial efforts to activate these panels show that further steps need to be taken to achieve significant changes in the dynamic.

149.          In its observations on the draft report, the Mexican State emphasized the role of the inter-institutional panels as mechanisms that have allowed civil society to participate in the planning of policies to prevent violence against women, as well as in the follow-up on the investigations carried out by the Office of the Special Prosecutor.  In this sense, it highlighted that:

For the Mexican State the participation of civil society is of great relevance, both because it brought the problem being suffered in Ciudad Juárez to light, and because of the proposals it has indicated to resolve the situation.  For these reasons, it is intended to guarantee the efficacy of the current mechanisms of participation with concrete actions reflecting the observations proposed.

150.          Further, in relation to the issue of services for those affected by these crimes, the Special Rapporteur has received repeated indications that the family members of those killed have not been able to obtain access to adequate psychological and social services.  Reports indicate that medical, psychological and social services for victims of domestic violence are far from sufficient to meet the need.  In this regard, the Special Rapporteur has received information concerning the adoption in 2001 of an official norm within the Mexican national health system intended to improve attention to family violence within this sector.  This norm reportedly aims to contribute to the provision of quality care by health care providers in preventing, detecting and reporting violence against women.  The evident challenge is to put these standards into practice. 

151.          Programs to assist women who have been subjected to violence must take the problem of economic subordination into account in designing measures that will enable women to remove themselves from abusive situations.  This is why it is crucial that shelters, counseling and rehabilitation services and other related resources be available for victims.  Further, reports suggest that women who have been subjected to domestic violence in Ciudad Juárez may face serious obstacles with respect to protecting the interests of their children and defining parental custody, and require available and effective legal assistance in order to safeguard their rights and those of their children. 

152.          In addition to rehabilitation services, victims of violence or their family members have the right to effective access to measures of restitution and reparation.  The impunity that characterizes most crimes of violence against women has the further effect of impeding the victims or their families from seeking civil redress or other forms of restitution from the perpetrator.  In the case of the women and girls killed in Ciudad Juárez, it is important to note that many had worked to help provide for their families; in those instances, in addition to the emotional consequences, the loss of that financial contribution has had a major impact on the life of the family.

C.      The obligation of the Mexican State to apply due diligence to prevent such violence

153.          Due investigation, prosecution and punishment serve not only as the required response to violence against women, such actions are also a key means to prevent future violence.  However, the fact that initiatives such as the CNDH’s issuance of recommendation 44/98 condemning the Mexican State’s response to the killings in Ciudad Juárez have received no institutional follow-up, and, in particular, that not one person has evidently been sanctioned for the grave failures identified therein reflects that attention to the right of women to be free from violence is still not accorded sufficient priority.  This reinforces stereotyped notions that crimes of violence against women matter less, and that violence in the home or community is a private matter.  While there have been some noteworthy legislative advances, their implementation in practice remains pending.[56] 

          154.          In this regard, one of the serious problems the Special Rapporteur has identified is the prioritization of attention to the so-called “serial” killings to the exclusion of the larger, grave problem of violence against women that underlies many of these killings.  In this regard, the presentation made by the PGJE during the October, 2002 hearing before the IACHR looked only at statistics concerning the “serial” killings with the qualification that, while any homicide drew the attention of society:

What is truly of concern are those facts qualified as multiple homicides, because of their danger in relation to the indetermination of the victims.  It was these events that motivated the creation of the Special Prosecutor’s Office for the investigation of the homicides of women.  The eradication of this situation constitutes a principle goal for the authorities, independently of the measures being adopted by all to prevent violence against women. 

One of the central points of the present report is to emphasize that it is crucial for the authorities at all levels to understand that the killings are largely a manifestation of a problem of violence against women that has to be addressed with attention to its root causes.  Due diligence to prevent future killings and respond to those that have already occurred requires that these issues be approached in a more integral way.  In this regard, it is crucial that authorities at all levels understand that such violence has its roots in discrimination, in order to understand how to change the State’s response to incorporate the perspective of gender.

155.          In some instances, the duty of due diligence to prevent a violation requires an urgent response, for example in the case of women in need of measures to protect against an imminent threat of violence, or in response to reports of a disappearance.  In this regard, while the State has reported on efforts to respond more rapidly in the case of reports of disappearances, information received by the Commission in instances dating from 2001 indicates that the first investigation measures were taken in some cases with lapses of days in between.  Initial information received relative to protective measures in cases of domestic or family violence raises doubts as to their effective availability and implementation 

          156.          Training, especially for those charged with responding to crimes of violence against women, is an important means of developing technical capacity and an understanding of the gender dimensions of the problem.  While the State has taken some steps in this regard, and has reported on a number of training initiatives, it appears that further training for rank and file investigators is essential, as is further training for all functionaries who deal with the public in how to deal with victims and their family members in a way that fully respects their dignity.  Training, in turn, must be accompanied by measures to monitor and evaluate results, and to apply sanctions where agents do not comply with their responsibilities under the law.  Training is one side of the coin and accountability is the other.

          157.          The public security aspect of these killings has begun to be taken more seriously by Municipal and State authorities.  Measures to install more lights, pave more roads, increase security in high-risk areas and improve the screening and oversight over the bus drivers who transport workers at all hours of the day and night, combined with efforts to place stricter controls on alcohol and drug consumption and the crimes related to both have an important place in improving the security of women in Ciudad Juárez.  While much remains to be done, it is encouraging that new measures are being adopted to incorporate broader collaboration and participation in planning such initiatives, including civil society.  It is also of great importance that such efforts incorporate the perspective of gender from their inception.

          158.          One of the Special Rapporteur’s concerns with respect to prevention measures taken to date is the focus on the need for potential victims to defend their own rights.  In this regard, there have been some very modest efforts to provide self-defense training, and to guide women on how to be alert to security concerns.  Such initiatives can play an important role, particularly for the large number of young women who come to Ciudad Juárez from rural areas or small towns from all over Mexico, and lack experience with the risks of living in an urban industrialized society.  At the same time, the application of due diligence requires that measures of prevention be viewed with more integral attention to all those affected by violence against women – men, women and children.  In this regard, the Mexican State needs to work with civil society in ensuring that the rights of women to be free from violence and discrimination are understood as such, through education programs, community outreach, working on gender-sensitive school curricula, and working with the media in violence prevention campaigns.  Violence is a learned behavior;[57] part of the duty of the State to apply due diligence to prevent such crimes is to work with civil society in changing this behavior and eradicating such violence. 

          159.          It is essential in this regard that the participation of men in the process of changing stereotyped notions of gender be amplified.  The Special Rapporteur noted a tendency toward a division of roles based on gender during her visit.  It may be further noted that the vast majority of family members who continue to press for clarification and accountability are women.  In this regard, the interinstitutional panels at the national and local levels provide a promising opportunity incorporating the full participation of men and women in the formulation of public policy; it is important that this participation incorporate the perspective of gender in all areas.

160.          The ability to design effective prevention strategies is undermined by the lack of empirical data on the breadth and depth of the problem of violence against women in Ciudad Juárez.  Such factors as the impunity that often attaches to crimes against violence, obstacles in seeking judicial recourse, and the stigma that may attach for victims lead to such crimes being underreported.  It also remains rare to find comprehensive studies on such violence and its consequences. 

V.          CONCLUSIONS AND RECOMMENDATIONS

          161.          The Commission and its Special Rapporteur have given close attention to assessing the situation of violence against women in Ciudad Juárez in order to provide this analysis and the recommendations that follow.  Both wish to note their appreciation for the willingness and openness of the Government at both the national and local levels to discuss the situation and how advances can be sought and attained.  In addition to the problems and challenges highlighted in the present report, due note has been taken of efforts on the part of the Mexican State, at both the national and local levels, to overcome these.  In this regard, special mention must be made of efforts to move forward with improvements in the normative framework to guarantee the right to be free from violence and discrimination.  The ratification of the Convention of Belém do Pará, and the enactment of related legislation at the domestic level -- for example the criminalization of family violence in the Criminal Code of Chihuahua -- signify the very real commitment of the Mexican State to move forward in these areas, as does the establishment of new mechanisms for interinstitutional collaboration in the incorporation of the perspective of gender in public policy. 

162.          The formal recognition of gender equality and recognition of violence against women as a human rights violation open the door to new approaches to eradicating violence based on gender.  The Commission and its Special Rapporteur give due recognition to these valuable advances.  The pending challenge is to make these guarantees effective in practice – to bridge the existing gap between what the law says and the lived experience of the women of Ciudad Juárez. 

163.          A decisive question is whether the rights of women in Ciudad Juárez are more secure now than before.  Efforts to address the violence and killings to date have not achieved that goal.  There is an urgent need to prioritize attention to this situation through the allocation of additional human and material resources, backed by the legal authority and political will necessary to achieve effective results.

          164.          Ensuring that women in Ciudad Juárez can fully and equally exercise their fundamental rights, particularly to be free from violence, requires urgent attention not just to these killings, but to the various forms of gender-based violence that violate the rights of women.  The killings and disappearances in Ciudad Juárez are an especially dramatic manifestation of patterns of gender-based violence and discrimination that include other forms of sexual violence and violence within the family.  Violence has its root causes in concepts of subordination and discrimination, and impunity (and the discrimination inherent in the lack of effective response) fuels its persistence.

165.          Effective approaches to the killings require effective approaches to violence against women.  Such violence is, above all, a human rights problem.  Applying due diligence to prevent such violence, as required under international and national law, requires attention to the gender dimensions of the problem, as well as the human security, public security and social dimensions.  When the killing, sexual abuse, or beating of women remain in impunity, and are effectively tolerated by the State, this sends a strong message to men, women and children.  Violence is a learned behavior.[58]  That behavior cannot be changed and eradicated if old patterns of inequality and discrimination continue to be sustained in practice. 

166.          The failure to investigate, prosecute and punish the perpetrators of these killings, sexual crimes and domestic violence against women in Ciudad Juárez contributes to a climate of impunity that perpetuates such violence.  It is indispensable that cases of violence based on gender are investigated and those responsible brought to justice. 

          167.          Violence based on gender is unacceptable – whether manifested through killings, sexual or domestic violence.  The consequence of impunity is to lessen the visibility of such violations, to the point where domestic violence, for example, is in effect an invisible crime.  This is the opposite of what the Mexican State has sought to achieve through the ratification of international human rights treaties such as the Convention of Belém do Pará, and the adoption of related legislation such as the reforms to the Criminal Code of Chihuahua defining family violence as a crime punishable by imprisonment.  Children who grow up in a context of impunity for such crimes grow up with the perception that women are not entitled to equal recognition and protection under the law. 

168.          Violence against women exacts a terrible cost for the victims, their families and society as a whole, and has intergenerational effects.  It is crucial that all sectors, public and private, be brought into the process of addressing this problem.  The focus cannot be on blaming the victims; rather, it must be on changing the patterns and practices that allow them to be subjected to these human rights violations.  This requires the greater participation of women in the formulation of public policy, as well as the greater participation of men in helping to change traditional patterns and practices based on stereotypes.  The responsibility of the Mexican State in addressing this violence and ending this impunity is to design and implement effective measures of prevention and response incorporating the substantive participation of the Federal Government, and the Governments of Chihuahua and the Municipality of Ciudad Juárez, as well as civil society. 

          169.          In reiterated opportunities, the Mexican State has emphasized to the Commission and its Special Rapporteur its institutional commitment to combat impunity with respect to these killings.  The Government of Chihuahua has expressed its commitment to applying the best resources available to ensuring absolute respect for the rights of women, through a policy of openness and coordination with all the public and private institutions able to make a contribution in this regard.  The Federal Government, for its part, has indicated its determination to assist in the resolution of past crimes and prevention of future crimes.  It is light of the foregoing commitments that the Commission and its Special Rapporteur offer the recommendations that follow, as a means of assisting the State in putting that commitment into practice.

General recommendations to enhance the efficacy of the right of the women of Ciudad Juárez to be free from violence:

1.          Prioritize the full inclusion, participation and collaboration of all levels of Government -- federal, state and municipal -- in the State response to the killings and other forms of gender-based violence affecting women in Ciudad Juárez, with the application of specific goals, timelines, oversight and evaluation to ensure the efficacy of mechanisms for interinstitutional participation.

2.       In seeking solutions to the killing of women and girls in Ciudad Juárez, devote increased attention to developing an integrated understanding of how different forms of violence against women interrelate and reinforce each other, and integrated strategies to combat such violence.

3.          Enhance efforts that have been initiated to incorporate the perspective of gender in design and implementation of public policy, with special attention to making such efforts effective in practice at the levels of the State of Chihuahua and Municipality of Ciudad Juárez, in order to provide due attention to compliance with the principles of equality and nondiscrimination.

4.          Amplify the participation of women in the design and implementation of public policy and decision-making at all levels and across all sectors of Government.

Recommendations to improve the application of due diligence to investigate, prosecute and punish violence against women in Ciudad Juárez and overcome impunity:

1.          Strengthen institutional capacity and procedures for responding to crimes of violence against women, including through the allocation of additional human and material resources for the Special Prosecutor’s Office and the other instances responsible for addressing and redressing these violations.

2.          Establish procedures to provide additional independent oversight, including periodic reports, for the investigations carried out under the direction of the Special Prosecutor’s Office to ensure periodic evaluation of the steps taken and timely progress in each case.

3.       Ensure that investigations into the killings of women are developed from their inception on the basis of investigation plans that take into account the prevalence of violence against women, and possible linkages between certain cases.

4.          Develop and apply an action plan with respect to outstanding denunciations of missing women to ensure that all reasonable avenues of investigation are fully explored, and to cross reference information on the disappearances with that concerning the killings in order to identify possible connections or patterns.

5.          Develop and apply an action plan with respect to the “cold” cases designed to identify and remedy any and all existing deficiencies in those files (such as those identified by the National Human Rights Commission in its review) and reactivate the investigations.

6.          Expand the assistance the PGR has provided to the PGJE in isolated instances, and concretize the contributions it can and should provide to fortify local capacity in such areas as technical, investigative, criminological, medical-forensic, psychological-forensic and other scientific assistance.

7.          Improve procedures and practices to ensure that reports of missing persons are subjected to rapid, thorough and impartial investigation, including through protocols or guidelines to ensure compliance with basic standards in all cases, and the development of new initiatives such as bulletins to the media.

8.          Guarantee prompt access to and the efficacy of special measures for the protection of the physical and psychological integrity of women subject to threats of violence.

9.          Intensify efforts to train all relevant officials -- including police, prosecutors, forensic medical and other specialists, judges and court personnel -- in the causes and consequences of violence based on gender both in terms of the technical aspects pertinent to investigation, prosecution and punishment, and the need to apply this understanding in their interaction with victims and/or their families.

10.          Implement reforms designed to protect the rights of victims or their family members to judicial protection and guarantees, principally by improving mechanisms to ensure that the affected parties have access to information about the development of the investigation and about their rights in the legal proceedings, as well as to develop the possibilities of obtaining legal assistance where necessary to pursue such proceedings.

11.     Ensure adequate oversight of officials responsible for responding to and investigating crimes of violence against women and ensure that measures to hold them accountable administratively, disciplinarily or criminally, depending on the case, are actually applied when they fail to discharge their responsibilities under the law.

12.          Provide those who seek assistance from such officials an available and effective procedure to file complaints in the case of noncompliance with their duties under the law, and information about how to invoke that procedure.

13.          Reorient the working relationship with the individuals and organizations that serve as the coadyuvancia (legal counsel defending the interests of the victim in investigation and prosecution) to provide for a fluid exchange of information, and to fully utilize this mechanism as the aid to justice it was intended to be when established.

14.     In view of the climate of fear and threats in relation to some of these killings, and reported potential links of some to organized crime, give attention to incorporating the participation of police officers from other areas in the investigative teams as a means to ensure that officers who live in the community are not themselves under threat or pressure, and increase citizen confidence.

15.     Also with respect to the issue of fear and threats, give priority attention to ensuring the existence of measures of security for women victims of or threatened with violence, family members, human rights defenders, witnesses or journalists in situations of risk, both to provide protection for their right to personal security and to ensure that those who come forward to press for clarification of these crimes or provide information are not intimidated into abandoning their efforts.

16.          Subject all threats or acts of hostility denounced in connection with these killings to prompt, thorough and impartial investigation with due follow-up, and the State should pursue further consultation with the organizations of civil society who assist victims and their families in developing and implementing solutions in this regard.

17.          Enhance public services for women who have been subjected to violence with special attention to amplifying access to medical and psychological treatment; adopting more integral social services designed to respond to the problem of economic subordination that often prevents women from removing themselves from an abusive situation; and, providing information and assistance to ensure effective access to legal remedies for protection against this violation and related legal issues such as child custody.

Recommendations to improve the application of due diligence to prevent violence against women in Ciudad Juárez and increase their security

1.       Place renewed emphasis on training for public sector functionaries, especially the police, prosecutors, forensic specialists, judges and court personnel, in the causes and consequences of violence based on gender.

2.          Continue to develop spaces for interinstitutional dialogue and collaboration to exchange information and strategies, ensure coherent approaches, improve services and promote best practices; it is crucial that such efforts include monitoring, evaluation and follow-up to assess advances and continuing obstacles.

3.          Coordinate and amplify efforts at the federal, State and Municipal levels to improve such basic services as lighting in marginal areas and zones that have been associated with security risk; security with respect to transportation; the paving of roads in marginal areas -- and to allocate the funds necessary to provide such services.

4.          Improve the detection, recording and reporting of violence against women through health care settings, and provide information on violence prevention, treatment and services to users of these services, especially reproductive health services.

5.          Develop data collection systems to document and report on the scope and consequences of violence against women in Ciudad Juárez in order to improve the design and implementation of measures to confront it, and evaluate the efficacy of those measures.

6.       Work with civil society to design and implement broad based rights and education campaigns, first, to inform women of Ciudad Juárez about their right to be free from violence and how to seek protection for that right, and, second, to ensure that men, women and children understand that violence based on gender is a human rights violation under international law and a crime punishable under the law of Chihuahua.

7.       Take steps to involve more men in initiatives aimed at changing attitudes and practices based on stereotyping, and to ensure that public campaigns are designed to correspond to the needs of men, women and families.

8.       Work with the media to: promote public awareness of the right to be free from violence; inform the public about the costs and consequences of such violence; disseminate information about legal and social support services for those at risk; and inform victims, victimizers and potential victimizers of the punishment for such violence.

9.       Work with instances at the levels of the Federal Government, State of Chihuahua and the Municipality of Ciudad Juárez responsible for protecting the rights of children to ensure that special measures of protection are available for children threatened with gender-based violence, and that the response to gender-based violence against girl children takes into account their special vulnerability.

[ Table of Contents | Previous | Next ]