United Nations CEDAW/C/GC/31-CRC/C/GC/18  Convention on the Elimination of All Forms of Discrimination against Wome

 Distr.: General
4 November 2014

Original: English - To read the origanal text with all footnotes, please click on the PDF Symbol


ADVANCE UNEDITED VERSION
Committee on the Elimination of Discrimination against Women
Committee on the Rights of the Child
Joint general recommendation/general comment No. 31 of the Committee on the Elimination of Discrimination against Women and

No. 18 of the Committee on the Rights of the Child on harmful practices

Contents
Page
1. Introduction 
2. Objective and scope of the General Recommendation/General Comment (GR/GC) 
3. Rationale for Joint General Recommendation/General Comment 
4. Normative content of the CEDAW and CRC Conventions 
5. Criteria for determining harmful practices 
6. Causes, forms and manifestations of harmful practices 
6.1 Female genital mutilation 
6.2 Child and/or forced marriage 
6.3 Polygamy 
6.4 Crimes committed in the name of so-called honour
7. Holistic framework for addressing harmful practices
7.1 Data collection and monitoring 
7.2 Legislation and its enforcement
7.3 Prevention of harmful practices 
7.3.1 Establishing rights-based social and cultural norms 
7.3.2 Empowerment of women and girls
7.3.3 Capacity development at all levels 
7.3.4 Awareness-raising, public dialogue and manifestations of commitment
7.4 Protective measures and responsive services
8. Dissemination and use of the General Recommendation/General Comment and reporting
9. Treaty ratification or accession and reservations

1. Introduction
The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) and the Convention on the Rights of the Child (CRC) contain legally binding obligations that relate both in general and specifically to the elimination of harmful practices. The Committee on the Elimination of Discrimination against Women and the Committee on the Rights of the Child have consistently drawn attention to these practices affecting women and children, primarily girls, in the execution of their respective monitoring mandates. It is by virtue of this overlapping mandate and the shared commitment to prevent, respond to and eliminate harmful practices, wherever and in whichever form they occur, that the CEDAW Committee and the CRC Committee decided to develop this joint General Recommendation/General Comment.
2. Objective and scope of the General Recommendation/General Comment (GR/GC)
1. The objective of this General Recommendation/General Comment is to clarify the obligations of States parties to CEDAW and CRC by providing authoritative guidance on legislative, policy and other appropriate measures that must be taken to ensure full compliance with their obligations under the two Conventions to eliminate harmful practices.
2. The Committees acknowledge that harmful practices affect adult women, both directly and/or due to the long-term impact of practices to which they were subjected to as girls. This GR/GC therefore further elaborates the obligations of States parties to CEDAW with respect to the relevant provisions to eliminate harmful practices that affect the rights of women.
3. Moreover, the Committees recognize that boys are also the victims of violence, harmful practices and bias and that their rights must be addressed for their protection and to prevent gender-based violence and the perpetuation of bias and gender inequality later in their lives. Therefore, the GR/GC makes reference to the obligations of States parties to CRC regarding harmful practices that affect the enjoyment of the rights of boys due to discrimination.
4. This GR/GC should be read in conjunction with relevant General Recommendations and General Comments respectively issued by the two Committees, particularly CEDAW GR No. 19 (1992) on violence against women, CRC GC No. 8 (2006) on the right of the child to protection from corporal punishment and other cruel or degrading forms of punishment and No. 13 (2011) on the right of the child to freedom from all forms of violence. The content of CEDAW GR No. 14 (1990) on female circumcision is updated by this GR/GC.
3. Rationale for Joint General Recommendation/General Comment
5. The CEDAW and CRC Committees consistently note that harmful practices are deeply rooted in societal attitudes according to which women and girls are regarded as inferior to men and boys based on stereotyped roles. They also highlight the gender dimension of violence and indicate that sex- and gender-based attitudes and stereotypes, power imbalances, inequalities and discrimination perpetuate the widespread existence of practices that often involve violence or coercion. It is also important to recall that the Committees are concerned that these practices are also used to justify gender-based violence as a form of “protection” or control of women and children in the home, community, school, other educational settings and institutions as well as in wider society. Moreover, the Committees draw States parties’ attention to the fact that, sex- and gender-based discrimination intersect with other factors that affect women and girls, in particular those who belong to, or are perceived as belonging to disadvantaged groups, and who are therefore at a higher risk of becoming victims of harmful practices.
6. Harmful practices are therefore grounded in discrimination based on sex, gender, age and other grounds and have often been justified by invoking socio-cultural and religious customs and values as well as misconceptions related to some disadvantaged groups of women and children. Overall, harmful practices are often associated with serious forms of violence or are themselves a form of violence against women and children. The nature and prevalence of these practices vary across regions and cultures; however, the most prevalent and well documented are female genital mutilation, child and/or forced marriage, polygamy, crimes committed in the name of so-called honour and dowry-related violence. As these practices are frequently raised before both Committees, and in some cases have been demonstrably reduced through legislative and programmatic approaches, this joint GR/GC will use them as key illustrative examples.
7. Harmful practices are endemic within a wide variety of communities in most countries of the world. Some of these practices are also found in regions or countries where they had not been previously documented, primarily due to migration, while in other countries where such practices had disappeared, due to a number of factors such as conflict situations, they are now re-emerging.
8. Many other practices have been identified as harmful practices which are all strongly connected to and reinforce socially constructed gender roles and systems of patriarchal power relations and sometimes reflect negative perceptions or discriminatory beliefs towards certain disadvantaged groups of women and children, including individuals with disabilities and albinism. These practices include, but are not limited to: neglect of girls (linked to the preferential care and treatment of boys), extreme dietary restrictions (forced feeding, food taboos, including during pregnancy), virginity testing and related practices, binding, scarring, branding/tribal marks, corporal punishment, stoning, violent initiation rites, widowhood practices, witchcraft, infanticide and incest. Harmful practices also include body modifications that are performed for the purpose of beauty or marriageability of girls and women (such as fattening, isolation, the use of lip discs and neck elongation with neck rings ) or in an attempt to protect girls from early pregnancy or from being subjected to sexual harassment and violence (such as breast ironing/“repassage”). In addition, many women and children throughout the world increasingly undergo medical treatment and/or plastic surgery to comply with social norms of the body and not for medical or health reasons and many are also pressured to be fashionably thin which has resulted in an epidemic of eating and health disorders.
4. Normative content of the CEDAW and CRC Conventions
9. Although the issue of harmful practices was less known at the time of drafting of the CEDAW and CRC Conventions, both include provisions which cover harmful practices as human rights violations and oblige States parties to take steps to ensure that they are prevented and eliminated. In addition, the Committees have increasingly addressed the issue during the examination of States parties’ reports, in the ensuing dialogue with States parties and in their respective concluding observations. The issue has been further elaborated by each of the Committees in their respective general recommendations and general comments.
10. States parties to CEDAW and CRC have the duty to comply with their obligations to respect, protect and fulfil women’s and children’s rights. States parties to both Conventions also have a due diligence obligation to prevent acts that impair the recognition, enjoyment or exercise of rights by women and children and ensure that private actors do not engage in discrimination against women and girls, including gender-based violence in relation to CEDAW, or any form of violence against children, in relation to CRC.
11. The Conventions outline the obligations of States parties to establish a well-defined legal framework in order to ensure the protection and promotion of human rights. An important first step in doing so is through the incorporation of CEDAW and CRC into domestic legal frameworks. Both the CEDAW and CRC Committees stress that legislation aimed at eliminating harmful practices must include appropriate budgeting, implementing, monitoring and effective enforcement measures.
12. Furthermore, the obligation to protect requires States parties to establish legal structures to ensure that harmful practices are promptly, impartially and independently investigated, that there is effective law enforcement and that effective remedies are provided to those who have been harmed by such practices. The Committees call on States parties to explicitly prohibit by law and adequately sanction or criminalize harmful practices, in accordance with the gravity of the offence and harm caused, provide for the means of prevention, protection, recovery, reintegration and redress for victims and combat impunity for harmful practices.
13. As the requirement to effectively address harmful practices is among the core obligations of States parties under the two Conventions, reservations to these and other relevant articles , which have the effect of broadly limiting or qualifying the obligations of States parties to respect, protect and fulfil women’s and children’s rights to live free from harmful practices, are incompatible with the object and purpose of the two Conventions and impermissible pursuant to article 28(2) of CEDAW and article 51(2) of CRC.
5. Criteria for determining harmful practices
14. Harmful practices are persistent practices and behaviours that are grounded on discrimination on the basis of sex, gender, age and other grounds as well as multiple and/or intersecting forms of discrimination that often involve violence and cause physical and/or psychological harm or suffering. The harm that these practices cause to the victims surpass the immediate physical and mental consequences and often has the purpose or effect of impairing the recognition, enjoyment and exercise of the human rights and fundamental freedoms of women and children. There is also a negative impact on their dignity, physical, psychosocial and moral integrity and development, participation, health, educational, economic and social status. These practices are therefore reflected in the work of both the CEDAW and CRC Committees.
15. For the purposes of this GR/GC, to be regarded as harmful, practices should meet the following criteria:
a. They constitute a denial of the dignity and/or integrity of the individual and a violation of human rights and fundamental freedoms enshrined in the two Conventions;
b. They constitute discrimination against women or children and are harmful insofar as they result in negative consequences for them as individuals or groups, including physical, psychological, economic and social harm and/or violence and limitations on their capacity to participate fully in society or develop and reach their full potential;
c. They are traditional, re-emerging or emerging practices that are prescribed and/or kept in place by social norms that perpetuate male dominance and inequality of women and children, based on sex, gender, age and other intersecting factors;
d. They are imposed on women and children by family, community members, or society at large, regardless of whether the victim provides, or is able to provide, full, free and informed consent.
6. Causes, forms and manifestations of harmful practices
16. The causes of harmful practices are multidimensional and include stereotyped sex- and gender-based roles, the presumed superiority or inferiority of either of the sexes, attempts to exert control over the bodies and sexuality of women and girls, social inequalities and the prevalence of male dominated power structures. Efforts to change the practices must address these underlying systemic and structural causes of traditional, re-emerging and emerging harmful practices, empower girls and women, as well as boys and men, to contribute to transformation of traditional cultural attitudes that condone harmful practices, act as agents of such change and strengthen the capacity of communities to support these processes.
17. Despite efforts to combat harmful practices, the overall number of women and girls affected remains extremely high and may be increasing, including for instance in conflict situations and due to technological developments like the widespread use of social media. Through the examination of State parties’ reports, the Committees have noted that there is often continued adherence to the harmful practices by members of practicing communities who have moved to destination countries through migration or to seek asylum. Social norms and cultural beliefs supporting these harmful practices persist and are at times emphasized by a community in an attempt to preserve their cultural identity in a new environment, particularly in destination countries where gender roles provide women and girls with greater personal freedom.
6.1. Female genital mutilation
18. Female genital mutilation, female circumcision or female genital cutting is the practice of partially or wholly removing the external female genitalia or otherwise injuring the female genital organs for non-medical or non-health reasons. In the context of this GR/GC, it will be referred to as female genital mutilation (FGM). FGM is performed in every region of the world and within some cultures, is a requirement for marriage and believed to be an effective method to control women’s and girls’ sexuality. The practice may lead to a variety of immediate and long-term health consequences, including severe pain, shock, infections and complications during childbirth affecting both the mother and child, long-term gynaecological problems such as fistula as well as psychological consequences and death. WHO and UNICEF estimate that between 100 and 140 million girls and women worldwide have been subjected to one of the types of FGM.
6.2. Child and/or forced marriage
19. Child marriage, also referred to as early marriage, is any marriage where at least one of the parties is under 18 years of age. The overwhelming majority of child marriages, both formal and informal, involve girls, although at times their spouses are also under the age of 18. A child marriage is considered as a form of forced marriage given that one or both parties have not expressed their full, free and informed consent. As a matter of respecting the child’s evolving capacities and autonomy in making decisions that affect her or his life, in exceptional circumstances a marriage of a mature, capable child below the age of 18 may be allowed provided that the child is at least 16 years old and that such decisions are made by a judge based on legitimate exceptional grounds defined by law and on the evidence of maturity without deference to cultures and traditions.
20. In some contexts, children are betrothed or married very young and in many cases, young girls are forced to marry a man who may be decades older. In 2012, UNICEF reported that almost 400 million women aged 20-49 around the world were married or had entered into union before they reached 18 years of age. Therefore the CEDAW and CRC Committees have been giving a particular attention to cases where girls have been married against their full, free and informed consent, such as when they have been married too young to be physically and psychologically ready for adult life or making conscious and informed decisions and thus not ready to consent to marriage. Other examples include cases where the guardians have the legal authority to consent to marriage of girls in accordance with customary or statutory law and in which girls are thus married contrary to the right to freely enter into marriage.
21. Child marriage is often accompanied by early and frequent pregnancies and childbirth, resulting in higher than average maternal morbidity and mortality rates. Pregnancy-related deaths are the leading cause of mortality for 15-19 year old girls (married and unmarried) worldwide. Infant mortality among the children of very young mothers is higher (sometimes as much as two times higher) than among those of older mothers. In cases of child and/or forced marriages, particularly where the husband is significantly older than the bride, and where girls have limited education, the girls generally have limited decision-making power in relation to their own lives. Child marriages also contribute to higher rates of school dropout, particularly among girls, forced exclusion from school, increased risk of domestic violence and to limiting the enjoyment of the right to freedom of movement. Forced marriages often result in girls lacking personal and economic autonomy, attempting to flee or commit self-immolation or suicide to avoid or escape the marriage.
22. Forced marriages are marriages where one or both parties have not personally expressed their full and free consent to the union. In addition to child marriages as indicated above, forced marriages may be manifested in various other forms, including exchange or trade-off marriages (i.e. baad and baadal), servile marriages and coercing a widow to marry a relative of her deceased husband (levirate marriages). In some contexts, a forced marriage may occur when a rapist is permitted to escape criminal sanctions by marrying the victim, usually with the consent of her family. Forced marriages may occur in the context of migration in order to ensure that a girl marries within the family’s community of origin or to provide extended family members or others with documents to migrate to and/or live in a particular destination country. Forced marriages are also being increasingly used by armed groups during conflict or may be a means for a girl to escape post-conflict poverty. Forced marriage may also be defined as a marriage in which one of the parties is not permitted to end or leave it.
23. The payment of dowry and bride price, which varies among practicing communities, may increase the vulnerability of women and girls to violence and to other harmful practices. The husband or his family members may engage in acts of physical or psychological violence, including murder, burning and acid attacks, for failure to fulfil expectations regarding the payment of dowry or its size. In some cases, families will agree to the temporary “marriage” of their daughter in exchange for financial gains, also referred to as a contractual marriage, which is a form of trafficking in human beings. States parties to the CRC Optional Protocol on the sale of children, child prostitution and child pornography (OP-SC) have explicit obligations with regards to child and/or forced marriage that include dowry payments or bride price as this could constitute a “sale of children” as defined in article 2(a) of the Protocol. The CEDAW Committee has repeatedly stressed that allowing marriage to be arranged by such payment or preferment violates the right to freely choose a spouse and has in its GR No. 29 (2013) outlined that such practice should not be required for a marriage to be valid, and such agreements should not be recognized by the State party as enforceable.
6.3. Polygamy
24. Polygamy is contrary to women’s and girls’ dignity and infringes on their human rights and freedoms, including equality and protection within the family. Polygamy varies across, and within, different legal and social contexts and its impact includes: harms to the health of wives, understood as physical, mental and social well-being; material harms and deprivations wives are liable to suffer; and, emotional and material harm to children, often with serious consequences for their welfare.
25. While a large number of States parties have chosen to ban polygamy, it continues to be practiced in some countries, whether legally or illegally. Although throughout history polygamous family systems have been functional in certain agricultural societies as a way of ensuring larger labour forces for individual families, on the contrary studies have shown that polygamy often results in increased poverty in the family, particularly in rural areas.
26. Both women and girls find themselves in polygamous unions, with evidence showing that girls are much more likely to be married or betrothed to much older men, increasing the risk of violence and violations of their rights. The coexistence of statutory laws with religious, personal status and traditional customary laws and practices often contributes to the persistence of this practice. However, in some States parties, polygamy is authorised by civil laws. Constitutional and other provisions that protect the right to culture and religion, at times, have also been used to justify laws and practices that allow for polygamous unions.
27. States parties to the CEDAW Convention have explicit obligations to discourage and prohibit polygamy as it is contrary to the Convention . The CEDAW Committee also contends that polygamy has significant ramifications for economic wellbeing of women and their children .
6.4. Crimes committed in the name of so-called honour
28. Crimes committed in the name of so-called honour are acts of violence that are disproportionately, though not exclusively, committed against girls and women, because family members consider that certain suspected, perceived or actual behaviour will bring dishonour to the family or community. Such behaviours include entering into sexual relations before marriage, refusing to agree to an arranged marriage, entering into a marriage without parental consent, committing adultery, seeking divorce, dressing in a way that is viewed as unacceptable to the community, working outside the home or generally failing to conform to stereotyped gender roles. Crimes in the name of so-called honour may also be committed against girls and women because they have been victims of sexual violence.
29. These crimes include murder and are frequently committed by a spouse, female or male relative or a member of the victim’s community. Rather than being viewed as criminal acts against women, crimes committed in the name of so-called honour are often sanctioned by the community as a means to preserve and/or restore the integrity of its cultural, traditional, customary or religious norms following alleged transgressions. In some contexts, national legislation or its practical application, or the absence of legislation, allows for the defence of honour to be presented as an exculpatory or a mitigating circumstance for perpetrators of these crimes, resulting in reduced sanctions or impunity. In addition, prosecution of cases may be impeded by an unwillingness of individuals with knowledge of the case to provide corroborating evidence.
7. Holistic framework for addressing harmful practices
30. Both the CEDAW and CRC Conventions make specific reference to the elimination of harmful practices. States parties to CEDAW are obliged to plan and adopt appropriate legislation, policies and measures and ensure that their implementation responds effectively to specific obstacles, barriers and resistance to the elimination of discrimination that give rise to harmful practices and violence against women (arts. 2 and 3). States parties must, however, be able to demonstrate the direct relevance and appropriateness of the measures that have been taken, ensuring first and foremost that the human rights of women are not violated, and demonstrate whether such measures will achieve the desired effect and result. Furthermore, the obligation of States parties to pursue such targeted policies is of an immediate nature and States parties cannot justify any delay on any grounds, including cultural and religious grounds. States parties to CEDAW are also obliged to take all appropriate measures, including temporary special measures (art. 4(1)) to “modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either sexes or on stereotyped roles for men and women” (art. 5 (a)) and to ensure that “the betrothal and the marriage of a child shall have no legal effect” (art. 16(2)).
31. The CRC, on the other hand, obliges States parties to “take all effective and appropriate measures with a view to abolishing traditional practices prejudicial to the health of children” (art. 24(3)). In addition, the CRC provides for the right of the child to be protected from all forms of violence, including physical, sexual or psychological violence (art. 19) and requires States parties to ensure that no child be subjected to torture or other cruel, inhuman or degrading treatment or punishment (art. 37 (a)). The CRC applies the four general principles of the Convention to the issue of harmful practices, namely protection from discrimination (art. 2), ensuring the best interests of the child (art. 3(1)), upholding the right to life, survival and development (art. 6) and the right of the child to be heard (art. 12).
32. In both instances, the effective prevention and elimination of harmful practices require the establishment of a well-defined, rights-based and locally-relevant holistic strategy which includes supportive legal and policy measures, including social measures that are combined with a commensurate political commitment and accountability at all levels. The obligations outlined in CEDAW and CRC provide the basis for the development of a holistic strategy to eliminate harmful practices the elements of which are set out in this GR/GC.
33. Such a holistic strategy must be mainstreamed and coordinated both vertically and horizontally and integrated into national efforts to prevent and address all forms of harmful practices. Horizontal coordination requires organization across sectors, including education, health, justice, social welfare, law enforcement, immigration and asylum, communication and media. Similarly, vertical coordination requires organization between local, regional and national level actors and with traditional and religious authorities. To facilitate this process, consideration should be given to delegating responsibility for this work to an existing or specifically established high-level entity, in cooperation with all relevant stakeholders.
34. Implementation of any holistic strategy necessarily requires the provision of adequate organizational, human, technical and financial resources that are supplemented with appropriate measures and tools, such as regulations, policies, plans and budgets. In addition, States parties are obliged to ensure that an independent monitoring mechanism is in place to track progress on the protection of women and children from harmful practices and the realization of their rights.
35. A wide range of other stakeholders also need to be engaged in strategies aimed at eliminating harmful practices, including national independent human rights institutions, health, education and law enforcement professionals, civil society as well as those who engage in the practices.
7.1 Data collection and monitoring
36. The regular and comprehensive collection, analysis, dissemination and use of quantitative and qualitative data is crucial to ensure effective policies, the development of appropriate strategies and the formulation of actions as well as for evaluating impact and monitoring progress achieved towards the elimination of harmful practices and identifying re-emerging and emerging harmful practices. The availability of data allows for the examination of trends and enables the establishment of the relevant connections between policies and effective programme implementation by State and non-State actors and the corresponding changes in attitudes, behaviours, practices and prevalence rates. Data disaggregated by sex, age, geographical location, socio-economic status, education levels and other key factors is central to the identification of high-risk and disadvantaged groups of women and children, which will guide policy formulation and action to address harmful practices.
37. Despite this recognition, disaggregated data on harmful practices remain limited and are seldom comparable across countries and over time resulting in a limited understanding of the extent and the evolution of the problem and the identification of adequately tailored and targeted measures.
38. The Committees recommend that the States parties to the Conventions:
(a) Prioritize the regular collection, analysis, dissemination and use of quantitative and qualitative data on harmful practices disaggregated on the basis of sex, age, geographical location, socio-economic status, education levels and other key factors, and ensure that these activities are adequately resourced. Regular data collection systems should be established and/or maintained within health care and social services, education, judicial and law enforcement sectors on protection related issues.
(b) Collect data through the use of national demographic and indicator surveys and censuses which may be supplemented by data from nationally representative household surveys. Qualitative research should be gathered through focus group discussions, in-depth key informant interviews with a wide variety of stakeholders, structured observations, social mapping and other appropriate methodologies.
7.2. Legislation and its enforcement
39. A key element of any holistic strategy is the development, enactment, implementation and monitoring of relevant legislation. Each State party is under the obligation to send a clear message of condemnation of harmful practices, provide legal protection for victims, enable State and non-State actors to protect women and children at risk, provide appropriate responses and care and ensure the availability of redress and an end to impunity.
40. The enactment of legislation alone is, however, insufficient to effectively combat harmful practices. In accordance with the requirements of due diligence, legislation must therefore be supplemented with a comprehensive set of measures to facilitate its implementation, enforcement, follow-up, monitoring and evaluation of the results achieved.
41. Contrary to the obligation of the States parties under both conventions, many of them maintain legal provisions which justify, allow or lead to harmful practices such as legislation which allows for child marriage, provides the defence of so called “honour” as an exculpatory or mitigating factor for crimes committed against girls and women or legislation that enables a perpetrator of rape and/or other sexual crimes to avoid sanctions through marriage to the victim.
42. In States parties with plural legal systems, even where laws explicitly prohibit harmful practices, prohibition may not effectively be enforced because the existence of customary, traditional or religious laws may actually support harmful practices.
43. Prejudices and weak capacity to address rights of women and children among judges in customary and religious courts or traditional adjudication mechanisms and the belief that matters falling in the purview of such customary systems should not be subjected to any review or scrutiny by the State or other judicial bodies, deny or limit access to justice for victims of harmful practices.
44. The full and inclusive participation of relevant stakeholders in the drafting of legislation against harmful practices can ensure that the primary concerns related to the practice are accurately identified and addressed. Engaging with and soliciting inputs from practicing communities, other relevant stakeholders and members of civil society, is central to this process. Care should be taken, however, to ensure that prevailing attitudes and social norms which support harmful practices do not weaken efforts to enact and enforce legislation.
45. Many States parties have taken steps to decentralize government power through devolution and delegation but this should not reduce or negate their obligation to enact legislation that prohibits harmful practises and which is applicable throughout the territory of their jurisdiction. Safeguards must be put in place to ensure that decentralization or devolution does not lead to discrimination with regard to protection of women and children against harmful practices in different regions and cultural zones. Devolved authorities need to be equipped with the necessary human, financial, technical and other resources to effectively enforce legislation which aims to eliminate harmful practices.
46. Cultural groups engaged in harmful practices may contribute to spreading such practices across national boundaries and, where this occurs, appropriate measures are needed to contain the spread of these practices.
47. National human rights institutions have a key role to play in promoting and protecting human rights, including the right of individuals to be free from harmful practices, and enhancing public awareness of those rights.
48. Individuals providing services for women and children, especially medical personnel and teachers, are uniquely placed to identify actual or potential victims of harmful practices. However they are often bound by rules of confidentiality that may conflict with their obligation to report the actual occurrence of a harmful practice or the potential for it to occur. This must be overcome with specific regulations which make it mandatory for them to report such incidents.
49. In cases where medical professionals or government employees/civil servants are involved or complicit in carrying out harmful practices, their status and responsibility, including to report, should be seen as an aggravating circumstance in the determination of criminal sanctions or administrative sanctions such as loss of a professional licence and termination of contract which should be preceded by issuance of warnings. Systematic training for relevant professionals is considered as an effective preventive measure in this regard.
50. Although criminal law sanctions must be consistently enforced in ways that contribute to the prevention and elimination of harmful practices, States parties must also take into account the potential threats to and negative impact on victims, including acts of retaliation.
51. Monetary compensation may not be feasible in areas of high prevalence. In all instances, however, women and children affected by harmful practises should have access to legal remedies, victim support and rehabilitation services as well as social and economic opportunities.
52. The best interests of the child and the protection of the rights of girls and women should always be taken into consideration and the necessary conditions must be in place to enable them to express their point of view and ensure that their opinions are given due weight. Careful consideration should also be given to the potential short- and long-term impact on children or women of the dissolution of child and/or forced marriages, return of dowry payments and bride price.
53. States parties, and particularly immigration and asylum officials should be aware that women and girls may be fleeing their country of origin to avoid undergoing a harmful practice. Those officials should receive appropriate cultural, legal and gender-sensitive training on what steps need to be taken for their protection.
54. The Committees recommend that the States parties to the Conventions adopt or amend legislation with a view to effectively addressing and eliminating harmful practices. In doing so, the State party should ensure that:
(a) The drafting process of legislation is fully inclusive and participatory. For that purpose, they should conduct targeted advocacy and awareness-raising and use social mobilization measures to generate broad public knowledge of and support for the drafting, adoption, dissemination and implementation of the legislation;
(b) The legislation is in full compliance with the relevant obligations outlined in CEDAW and CRC and other international human rights standards which prohibit harmful practices and that it takes precedence over customary, traditional or religious laws which allow, condone or prescribe any harmful practice, particularly in countries with plural legal systems;
(c) All legislation which condones, allows, or leads to harmful practices is repealed, without further delay, including traditional, customary or religious laws, and any legislation which accepts the “defence of honour” as a defence or mitigating factor in the commission of crimes in the name of so-called honour;
(d) The legislation is consistent and comprehensive and provides detailed guidance on prevention, protection, support and follow-up services and assistance for victims, including towards their physical and psychological recovery and social reintegration and be complemented by adequate civil and/or administrative legislative provisions;
(e) The legislation adequately, including through the providing the basis for adoption of temporary special measures addresses the root causes of harmful practices, including discrimination based on sex, gender, age and other intersecting factors and focus on the human rights and needs of the victims as well as fully takes into account the best interests of children and women;
(f) A minimum legal age of marriage for girls and boys is established, with or without parental consent, at 18 years. When exceptions to marriage at an earlier age are allowed in exceptional circumstances, the absolute minimum age is not below 16 years, grounds for obtaining permission are legitimate and strictly defined by law and marriage is permitted only by a court of law upon full, free and informed consent of the child or both children who appear in person before the court;
(g) A legal requirement of marriage registration is established and effective implementation is provided through awareness-raising, education and existence of adequate infrastructure to make registration accessible to all persons within their jurisdiction.
(h) A system of national compulsory, accessible and free birth registration of all children is established, in order to effectively prevent harmful practices including child marriages;
(i) National human rights institutions are mandated to consider individual complaints and petitions and carry out investigations, including those submitted on behalf of or directly by women and children in a confidential, gender-sensitive and child-friendly manner;
(j) It is made mandatory by law for professionals and institutions working for and with children and women to report actual incidents or the risk of such incident if they have reasonable grounds to believe that a harmful practice has occurredf or may take place. Mandatory reporting responsibilities should ensure protection of the privacy and confidentiality of those who report;
(k) All initiatives to draft and amend criminal laws must be coupled with protection measures and services for victims and those who are at risk of being subjected to harmful practices;
(l) Legislation establishes jurisdiction over offences of harmful practices which applies to nationals of the State party and habitual residents even when they are committed in another State in which they are not criminalized;
(m) Legislation and policies relating to immigration and asylum recognize the risk of being subjected to harmful practices or being persecuted as a result of harmful practices as grounds for granting asylum. Consideration should also be given, on a case-by-case basis, to providing protection to a relative who may be accompanying the girl or woman;
(n) Legislation includes provisions on the regular evaluation and monitoring of the law, including in relation to implementation, enforcement and follow-up;
(o) Women and children subjected to harmful practices have equal access to justice, including through addressing legal and practical barriers for initiating legal proceedings, such as the limitation period for initiating legal procedures, and that the perpetrators and those persons who aid or condone such practices are held accountable;
(p) Legislation includes mandatory restraining or protection orders to safeguard those at risk of harmful practices and provide for their safety as well as measures to protect victims from retribution;
(q) Victims of violations of one or both of the Conventions have equal access to legal remedies and appropriate reparations in practice;
7.3. Prevention of harmful practices
55. One of the first steps in combating harmful practices is through prevention. Both Committees have underlined that prevention can be best achieved through a human rights-based approach to changing social and cultural norms, empowering women and girls, building the capacity of all relevant professionals who are in regular contact with victims, potential victims and perpetrators of harmful practices at all levels, and raising awareness of the causes and consequences of harmful practices, including through dialogue with relevant stakeholders.
7.3.1 Establishing rights-based social and cultural norms
56. A social norm is a contributing factor and social determinant of certain practices in a community which may be positive and strengthen its identity and cohesion or may be negative and potentially lead to harm. It is also a social rule of behaviour which members of a community are expected to observe. This creates and sustains a collective sense of social obligation and expectation which conditions the behaviour of individual community members, even if they are not personally in agreement with the practice. For example, where FGM is the social norm, parents are motivated to agree to FGM being performed on their daughters because they see other parents doing so and believe that others expect them to do the same. The norm or practice is often perpetuated by other women in community networks who have already undergone the procedure and exert additional pressure on younger women to conform to the practice or risk ostracism, shunning and stigmatisation. This marginalization may include the loss of important economic and social support and social mobility. Conversely, if individuals conform to the social norm, they expect to be rewarded, for example, through inclusion and praise. Changing social norms which underlie and justify harmful practices requires that such expectations are challenged and modified.
57. Social norms are interconnected; therefore harmful practices cannot be addressed in isolation, but within a broader context based on a comprehensive understanding of how these practices are linked with other cultural and social norms as well as other practices. This indicates the need to adopt a rights-based approach which is founded on recognition that rights are indivisible and interdependent.
58. An underlying challenge that must be confronted is the fact that harmful practices may be perceived as having beneficial effects for the victim and members of their family and community. As a result, there are significant limitations to any approach that only targets individual behavioural change. Instead, there is a need for a broad-based and holistic collective or community-based approach. Culturally sensitive interventions that reinforce human rights and enable practicing communities to collectively explore and agree on alternative ways to fulfil their values and honour/celebrate traditions without causing harm and violating human rights of women and children can lead to sustainable large-scale elimination of the harmful practices and the collective adoption of new social rules. Public manifestations of a collective commitment to these alternative practices can help reinforce their long-term sustainability. In this regard, the active involvement of community leaders is crucial.
59. The Committees recommend that the States parties to the Conventions:
Ensure that any efforts undertaken to address harmful practices and to challenge and change the underlying social norms are holistic and community-based and founded on a human rights-based approach which includes the active participation of all relevant stakeholders, particularly women and girls.
7.3.2 Empowerment of women and girls
60. States parties have an obligation to challenge and change patriarchal ideologies and structures that constrain women and girls from fully exercising their human rights and freedoms. To overcome the social exclusion and poverty experienced by many girls and women which increase their vulnerabilities to exploitation, harmful practices and other forms of gender-based violence, they need to be equipped with the necessary skills and competencies to assert their rights, including making autonomous and informed decisions and choices about their own lives. In this context, education is an important tool for empowering women and girls to claim their rights.
61. There is a clear correlation between low educational attainment of girls and women and the prevalence of harmful practices. States parties to the two Conventions have obligations to ensure the universal right to quality education and to create an enabling environment that allows girls and women to become agents of change (CRC, arts. 28-29; CEDAW, art. 10). This entails providing universal, free and compulsory primary school enrolment and regular attendance, discouraging dropping out, eliminating existing gender disparities and supporting access for the most marginalized girls, including those living in remote and rural communities. In implementing these obligations, consideration should be given to making schools and their surroundings safe, girl-friendly and conducive to girls’ optimal performance.
62. The completion of primary and secondary education provides girls with short- and long-term benefits by contributing to the prevention of child marriage and adolescent pregnancies, lower rates of infant and maternal mortality and morbidity, preparing women and girls to better claim their right to freedom from violence and increasing their opportunities for effective participation in all spheres of life. The Committees have consistently encouraged States parties to undertake measures to boost enrolment and retention in secondary education, including by ensuring that students complete primary school, abolishing school fees for both primary and secondary education, promoting equitable access to secondary education, including technical-vocational educational opportunities and giving consideration to making secondary education compulsory. Adolescent girls, during and after pregnancy, have the right to continue their studies, which can be guaranteed through non-discriminatory return policies.
63. For out-of-school girls, non-formal education is often their only route to learning and should provide basic education and instruction in life skills. It is an alternative to formal schooling for those who did not complete primary or secondary school and may also be made available through radio programmes and other media, including digital media.
64. Women and girls are enabled to build their economic assets through training in livelihood and entrepreneurship skills and benefit from programmes that offer an economic incentive to postpone marriage until the age of 18, such as scholarships, micro-credit programmes or savings schemes (CEDAW, arts. 11 and 13; CRC, art. 28). Complementary awareness-raising programmes are essential to communicating the right of women to work outside of the home and challenging taboos about women and work.
65. Another means of encouraging the empowerment of women and girls is by building their social assets. This can be facilitated through the creation of safe spaces where girls and women can connect with peers, mentors, teachers and community leaders and express themselves, speak out, articulate their aspirations and concerns and participate in decisions affecting their lives. This can help them to develop self-esteem and self-efficacy, communication, negotiation and problem-solving skills and an awareness of their rights and can be particularly important for migrant girls. As men have traditionally held positions of power and influence at all levels, their engagement is crucial to ensuring that children and women have the support and committed engagement of their families, communities, civil society and policymakers.
66. Childhood, and early adolescence at the latest, are entry points for assisting both girls and boys and supporting them to change gender-based attitudes and adopt more positive roles and behaviours in the home, school and wider society. This means facilitating discussions with them on social norms, attitudes and expectations that are associated with traditional femininity and masculinity and sex- and gender-linked stereotypical roles; and, working in partnership with them, to support personal and social change aimed at eliminating gender inequality and promoting the importance of valuing education, especially girls’ education, in the effort to eliminate harmful practices that specifically affect pre-adolescent and adolescent girls.
67. Women and adolescent girls who have been or are at risk of being subjected to harmful practices, face significant risks to their sexual and reproductive health, particularly in a context where they already encounter barriers to decision-making on such issues arising from lack of adequate information and services, including adolescent-friendly services. Special attention is therefore needed to ensure that women and adolescents have access to accurate information about sexual and reproductive health and rights and on the impacts of harmful practices as well as access to adequate and confidential services. Age-appropriate education, which includes scientifically based information on sexual and reproductive health, contributes to empowering girls and women to make informed decisions and claim their rights. To this end, health care providers and teachers with adequate knowledge, understanding and skills play a crucial role in conveying the information, preventing harmful practices, and identifying and assisting women and girls who are victims of or might be at risk of being subjected to them.
68. The Committees recommend that the States parties to the Conventions:
(a) Provide universal, free and compulsory primary education that is girl-friendly, including in remote and rural areas. Consider making secondary education mandatory while also providing economic incentives for pregnant girls and adolescent mothers to complete secondary school and establish non-discriminatory return policies;
(b) Provide girls and women with educational and economic opportunities in a safe and enabling environment where they can develop their self-esteem, an awareness of their rights as well as communication, negotiation and problem solving skills;
(c) Include in the educational curriculum information on human rights, including women and children’s rights, gender equality and self-awareness and contribute to eliminating gender stereotypes and fostering an environment of non-discrimination;
(d) Ensure that schools provide age-appropriate information on sexual and reproductive health and rights, including in relation to gender relations and responsible sexual behaviour, HIV prevention, nutrition, protection from violence and harmful practices;
(e) Ensure access to non-formal educational programmes for girls who have dropped out of regular schooling, or who have never enrolled and are illiterate; monitor the quality of these programmes;
(f) Engage men and boys in creating an enabling environment that supports the empowerment of women and girls.
7.3.3 Capacity development at all levels
69. One of the primary challenges in the elimination of harmful practices relates to the lack of awareness or capacity of relevant professionals, including front-line professionals, to adequately understand, identify and respond to incidents of or the risks of harmful practices. A comprehensive, holistic and effective approach to capacity-building should aim to engage influential leaders, such as traditional and religious leaders, and as many relevant professional groups as possible, including health, education and social workers, asylum and immigration authorities, the police, public prosecutors, judges and politicians at all levels. They need to be provided with accurate information about the practice and applicable human rights norms and standards with a view to promoting a change in attitudes and behaviours of their group and the wider community.
70. Where alternative dispute resolution mechanisms or traditional justice systems are in place, training on human rights and harmful practices should be provided to those responsible for their management. Further, police, public prosecutors, judges and other law enforcement officials need training on the implementation of new or existing legislation criminalising harmful practices to ensure that they are aware of the rights of women and children and are sensitive to the vulnerable status of victims.
71. In States parties where the prevalence of harmful practices are primarily limited to immigrant communities, health care providers, teachers and child care professionals, social workers, police, migration officials and the justice sector must be sensitized and trained on how to identify girls and women who have been or are at risk of being subjected to harmful practices and which steps can and should be taken to protect them.
72. The Committees recommend that the States parties to the Conventions:
(a) Provide all relevant front-line professionals with information on harmful practices and applicable human rights norms and standards and ensure that they are adequately trained to prevent, identify and respond to incidents of harmful practices, including mitigating negative effects for victims and helping them to access remedies and appropriate services;
(b) Provide training to individuals involved in alternative dispute resolution and traditional justice systems to appropriately apply key human rights principles, particularly the best interests of the child and the participation of children in administrative and judicial proceedings;
(c) Provide training to all law enforcement personnel, including the judiciary, on new and existing legislation prohibiting harmful practices and ensure that they are aware of the rights of women and children and of their role in prosecuting perpetrators and protecting victims of harmful practices;
(d) Conduct specialized awareness and training programmes for health care providers working with immigrant communities to address the unique health care needs of children and women who have undergone FGM or other harmful practices. Provide specialized training also for professionals within child welfare services and services focused on the rights of women, education, the police and justice sectors, politicians and media personnel who are working with migrant girls and women.
7.3.4 Awareness-raising, public dialogue and manifestations of commitment
73. To challenge socio-cultural norms and attitudes that underlie harmful practices, including male dominated power structures, sex and gender-based discrimination and age hierarchies, both Committees regularly recommend that States parties undertake comprehensive public information and awareness-raising campaigns that are part of long-term strategies to eliminate harmful practices.
74. Awareness-raising measures should include accurate information from trusted sources about the harm caused by the practices and convincing reasons as to why they should be eliminated. In this respect, the mass media can perform an important function in ensuring new thinking in particular through women’s and children’s access to information and material aimed at the promotion of their social and moral well-being and physical and mental health, in line with obligations under both Conventions that help to protect them from harmful practices.
75. The launching of awareness-raising campaigns can provide the opportunity to initiate public discussions about harmful practices with a view to collectively exploring alternatives that do not cause harm or violate the human rights of women and children and reaching agreement that the social norms underlying and sustaining harmful practices can and should be changed. The collective pride of a community in identifying and adopting new ways to fulfil their core values will ensure the commitment and sustainability of new social norms which do not result in the infliction of harm or violate human rights.
76. The most effective efforts are inclusive and engage relevant stakeholders at all levels, particularly girls and women from affected communities, as well as boys and men. Moreover, these efforts require the active participation and support of local leaders, including the allocation of adequate resources. Establishing or strengthening existing partnerships with relevant stakeholders, institutions, organizations and social networks (religious and traditional leaders, practitioners and civil society) can help build bridges between different constituencies.
77. Consideration could be given to the dissemination of information on positive experiences that followed the elimination of harmful practices within a local or diaspora community or within other practicing communities from the same geographical region with similar backgrounds as well as to the exchange of good practices, including from other regions. This may take the form of local, national or regional conferences or events, visits of community leaders or the use of audio-visual tools. In addition, awareness-raising activities need to be carefully designed so that they accurately reflect the local context, do not result in backlash reactions or foster stigma and/or discrimination against the victims and/or the practicing communities.
78. Community-based and mainstream media can be important partners in awareness-raising and outreach about the elimination of harmful practices, including through joint initiatives with the government to host debates or talk shows, prepare and screen documentaries and develop educational programmes for radio and television. The internet and social media can also be valuable tools for providing information and opportunities for debate and mobile telephones are increasingly being used to convey messages and engage with people of all ages. Community-based media can serve as a useful forum for information and dialogue and may include radio, street theatre, music, art, poetry and puppetry.
79. In States parties with effective and enforced legislation against harmful practices, there is a risk that practicing communities will go into hiding or go abroad to carry out the practices. States parties hosting practicing communities should support awareness-raising campaigns regarding the harmful impact on the victims or those at risk, as well as the legal implications of the violation, while at the same time preventing discrimination and stigma against these communities. To this end, steps should be taken to facilitate the social integration of these communities.
80. The Committees recommend that the States parties to the Conventions:
(a) Develop and adopt comprehensive awareness-raising programmes to challenge and change cultural and social attitudes, traditions and customs that underlie behaviours that perpetuate harmful practices;
(b) Ensure that awareness-raising programmes provide accurate information and clear, unified messages from trusted sources about the negative impact of harmful practices on the woman, children, in particularly girls, and their families and society at large. Such programmes should include social media, the internet, and community communication and dissemination tools;
(c) Take all appropriate measures to ensure that stigma and discrimination is not perpetuated against the victims and/or practicing immigrant or minority communities;
(d) Ensure that awareness-raising programmes targeting State structures engage decision-makers and all relevant programmatic staff and key professionals working within local and national government and government agencies;
(e) Ensure that the personnel within national human rights institutions is fully aware and sensitized to the human rights implications of harmful practices within the State party and that they are supported to promote the elimination of these practices;
(f) Initiate public discussions in order to prevent and promote the elimination of harmful practices, by engaging all relevant stakeholders in the preparation and implementation of these measures, including local leaders, practitioners, grassroots organizations and religious communities. These activities should affirm the positive cultural principles of a community that are consistent with human rights and include information on experiences of successful elimination by formerly practicing communities with similar backgrounds;
(g) Build or reinforce effective partnerships with mainstream media to support the implementation of awareness-raising programmes and promote public discussions and encourage the creation and observance of self-regulatory mechanisms that respect the privacy of individuals.
7.4 Protective measures and responsive services
81. Women and children who are victims of harmful practices are in need of immediate support services, including medical, psychological and legal services. Emergency medical services might be the most urgent and obvious of these, as some of the harmful practices covered in this GR/GC involve the infliction of extreme physical violence and medical interventions may be necessary to treat severe harm or prevent death. Victims of FGM or other harmful practices may also require medical treatment or surgical interventions to address the short- and long-term physical consequences. Management of pregnancy and childbirth in women or girls who have undergone FGM must be included in pre- and in-service training for midwifes, medical doctors and other skilled birth attendants.
82. National protection systems or, in their absence, traditional structures, should be mandated to be child friendly and gender-sensitive and adequately resourced to provide all necessary protection services to women and girls who face a high risk of being subjected to violence, including girls running away to avoid being subjected to FGM, forced marriage or crimes committed in the name of so-called honour. Consideration should be given to the establishment of an easy-to remember, toll-free, 24-hour helpline that is available and known throughout the country. Appropriate safety and security measures for victims must be available, including specifically designed temporary shelters or specialized services within shelters for victims of violence. As perpetrators of harmful practices are often the spouse of the victim, a family member or a member of the victim’s community, protective services should attempt to relocate victims outside of their immediate community if there is reason to believe that they may be unsafe. Unsupervised visits must be avoided, especially when the issue may be considered one of so-called honour. Psychosocial support must also be available to treat the immediate and long-term psychological trauma of victims, which may include post-traumatic stress disorder, anxiety or depression.
83. When a woman or a girl who was subjected to or refused to undergo a practice leaves her family or community to seek refuge, her decision to return must be supported by adequate national protection mechanisms. In assisting her in making this free and informed choice, these mechanisms are required to ensure her safe return and reintegration based on the principle of her best interest, including avoiding re-victimization. Such situations require close follow up and monitoring to ensure victims are protected and enjoy their rights in the short- and long-term.
84. Victims seeking justice for violations of their rights as a result of harmful practices often face stigmatization, a risk of re-victimization, harassment and possible retribution. Steps must therefore be taken to ensure that the rights of girls and women are protected throughout the legal process in accordance with articles 2 (c), 15 (b) and (c) of CEDAW and that children are enabled to effectively engage in court proceedings as part of their right to be heard under article 12 of CRC.
85. Many migrants face precarious economic and legal status which increases their vulnerability to all forms of violence, including harmful practices. Migrant women and children often do not have access to adequate services on an equal basis with citizens.
86. The Committees recommend that the States parties to the Conventions:
(a) Ensure that protection services are mandated and adequately resourced to provide all necessary prevention and protection services to children and women that are or are at high risk of becoming victims of harmful practices;
(b) Establish a toll-free, 24-hour hotline which is staffed by trained counsellors to enable victims to report instances when a harmful practice is likely to occur or has occurred, provide referral to needed services as well as accurate information about harmful practices;
(c) Develop and implement capacity-building programmes on their role in protection for judicial officers, including judges, lawyers, prosecutors and all relevant stakeholders, on legislation prohibiting discrimination and on applying laws in a gender and age-sensitive manner in conformity with the two Conventions;
(d) Ensure that children participating in legal processes have access to appropriate child-sensitive services to safeguard their rights and safety and to limit the possible negative impacts of the proceedings. Protective actions may include limiting the number of times a victim is required to give statements and not requiring that individual to face the perpetrator(s). Other steps may include appointing a guardian ad litem (especially where the perpetrator is a parent or legal guardian) and ensuring child victims have access to adequate child-sensitive information about the process and fully understand what to expect;
(e) Ensure that migrant women and children have equal access to services regardless of their legal status.
8. Dissemination, use of the General Recommendation/General Comment and reporting
87. States parties should widely disseminate the present joint GR/GC to parliaments, governments and the judiciary, nationally and locally. It should also be made known to children and women and all relevant professionals and stakeholders, including those working for and with children (i.e., judges, lawyers, police and other law enforcement entities, teachers, guardians, social workers, staff of public or private welfare institutions and shelters, health care providers) and civil society at large. The joint GR/GC should be translated into relevant languages; child-friendly/appropriate versions and formats accessible to persons with disabilities should be made available. Conferences, seminars, workshops and other events should be held to share good practices on how best to implement the joint GR/GC. It should also be incorporated into the formal pre- and in-service training of all concerned professionals and technical staff and should be made available to all national human rights institutions, women’s organizations and other human rights non-governmental organizations.
88. States parties should include in their reports under CEDAW and CRC information about the nature and extent of attitudes, customs and social norms that perpetuate harmful practices and on the measures guided by this GR/GC that they have implemented and their effects.
9. Treaty ratification or accession and reservations
89. States parties are encouraged to ratify:
(a) Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women (1999);
(b) Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography (2000);
(c) Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict (2000);
(d) Optional Protocol to the CRC on a communications procedure (2011).
90. States parties should review and modify or withdraw reservations to articles 2, 5 and 16 or their subparagraphs of CEDAW and articles 19 and 24(3) of CRC. The CEDAW Committee considers reservations to these articles, in principle, incompatible with the object and purpose of the Conventions and thus impermissible under article 28, paragraph 2 of the CEDAW Convention.

 

 

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