The newly appointed United Nations Special Rapporteur on extrajudicial, summary or arbitrary executions, Agnes Callamard, presented her first report at the 35th regular session of the Human Rights Council in which she addressed the key elements of a gender-sensitive approach to the right to life, concluding that gender-based killings may constitute arbitrary execution and that systemic discrimination based on sex, gender identity, or sexual orientation that denies basic conditions guaranteeing life – like access to food, water, health care, and housing – may violate the right to life. See Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions (Gender-sensitive approach to arbitrary killings), UN Doc. A/HRC/35/23, 6 June 2017. Callamard recommended that States eliminate laws that support patriarchal oppression, decriminalize same-sex relationships, support the recognition of gender identity, and publish data on femicides, among other recommendations. See id. at paras. 101-114.
Defining a Gender-Sensitive Approach to the Right to Life
In her report, Callamard observed that gender-related killings, often occurring in the private sphere, have been excluded from the working definition of what constitutes extrajudicial, summary, or arbitrary execution; according to Callamard this leads to the perception that some arbitrary loss of life is less grave than others. See id. at para. 11. While there is no internationally accepted definition of what constitutes extrajudicial, summary, or arbitrary execution, a violation of the right to life has typically been thought to include violations emanating from the State and its institutions, such as killings carried out by State officials or actors connected to the State, and killings in situations of armed conflict. See Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions (Gender-sensitive approach to arbitrary killings), at para. 10. According to the report, a more inclusive perspective would focus less on who the perpetrator is and more on whether the government supported the rights violation or took appropriate measures to prevent or punish those responsible for the violation. See id. at paras. 12-13.
The report defines gender as the social attributes and opportunities associated with being male and female. See id. at para. 16. Citing to General Comment No. 20 from the UN Committee on Economic, Social and Cultural Rights, the report asserts that gender identity is recognized among the prohibited grounds of discrimination. Despite this, the report comments, gender and intersecting factors – like race, ethnicity, religion, ability, age, and sexual orientation – often form the basis for discrimination. See id. at paras. 19-21. Callamard determined that these intersecting identities increase or decrease risks of human rights violations and of killings. See id. at para. 22.
Reiterating the obligations under the right to life, the report describes the gender-sensitive approach States should take in meeting their obligations to respect, protect, and fulfill the right to life.
According to the report, States must respect the right to life of women and not deprive women of their right to life arbitrarily, particularly in the context of structural violence that occurs in State institutions or through the excessive use of force. See id. at paras. 36, 38-40. States, the report notes, have “a higher level of diligence in protecting” an individual’s rights when that person has been deprived of their liberty. See id. at para. 37. States should align their policies with the United Nations Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders (Bangkok Rules). See id. at para. 38. In the context of the death penalty, Callamard notes the implementation of the death penalty against migrant women, women providing clear evidence of self-defense, and those engaging in same-sex relationships may constitute arbitrary killings. See id. at paras. 42-45. As another example, the report emphasizes that foreseeable violence and death that occur due to the victim’s gender expression, for instance the harms transgender women face when placed in male prisons, may constitute arbitrary deprivation of life. See id. at para. 46.
The report asserts that States are obligated to address gender stereotypes and the root causes of violence, including measures to change the “social and cultural patterns of conduct of men and women,” and practices “based on the idea of inferiority or superiority.” See id. at paras. 64-66. States are obligated to act with due diligence to protect against violations carried out by non-State actors, which requires States to act in good faith to prevent, investigate, and punish those responsible for abuses and to provide effective redress to victims. See id. at paras. 50, 57, 69-72. The report states that nearly 50 percent of female homicide victims were killed by family members or intimate partners compared to five percent for male homicide victims and that the homicide rate is significantly higher for indigenous or aboriginal females; women with disabilities; and LGBTQI women, especially transgender women of color. See id. at paras. 52, 55-56. According to the report, these facts indicate a failure to respond to underlying factors that put female victims at risk including discrimination; social and economic marginalization; and inadequate access to health services, criminal justice services, and housing. See id. at paras. 52, 54. The report emphasized that investigations into gender-based killings require additional measures that consider the context or motivation of the killers, akin to those pursued in hate crimes. See id. at para. 75.
The report stated that in order to fulfill the right to life of women, States must ensure the realization of women’s socioeconomic rights – particularly those essential to survival like health, housing, food, and water. See id. at paras. 79-84. The report further elaborates that deliberate denial of essential services, such as an absolute ban on abortion, can constitute a violation of the right to life and that where a death results from such a ban, it can amount to an arbitrary, gender-based killing. See id. at paras. 88- 94.
Conclusions & Recommendations
Callamard concluded that gender and intersecting identity markers significantly influence one’s realization of human rights. See id. at para. 97. Reflecting on the data discussed in the report, Callamard asserted that the continuing risk of women and girls – especially those belonging to socioeconomic, ethnic, and racial minorities – to be killed indicates a failure of public institutions to protect women’s right to life. See id. To this end, Callamard offered a number of recommendations.
In order to reduce gender-based violence of women and girls the report recommended that States repeal laws supporting patriarchal oppression of women, including those that target extramarital sex or exclude marital rape; repeal laws that discriminate against women in inheritance, ownership of property, or guardianship; eliminate the defense of “honor” as a mitigating factor in prosecution; and eliminate impunity for instances of femicide. See id. at para. 101.
Regarding gender identity, gender expression, and sexual orientation, Callamard recommended repealing laws criminalizing same-sex relationships; addressing impunity for LGBTQI killings; repealing laws permitting intrusive interventions, like genital-normalizing surgery or conversion therapy; adopting laws enabling gender-recognition without mandatory sterilization; and consulting with transgender individuals about their preferred placement in male or female prisons. See id. at para. 110.
Additionally, Callamard recommended that States repeal laws criminalizing or limiting safe abortion; ensure access to legal representation for incarcerated women; implement the Bangkok Rules; address gender stereotypes through community outreach; collect and publish data on femicide and other violence against women; modify hate crime statutes to include gender identity, gender expression, and sexual orientation; and fund human rights defenders and organizations involved in addressing gender-based violations of the right to life, among other recommendations. See id. at paras. 102-109, 111, 114.
Regarding standard setting, Callamard recommended that United Nations bodies and civil society should emphasize the interdependence of the right to life and economic and social rights; ensure that the right to life is interpreted consistently with the right to equality and non-discrimination; and promote the notion that acts of omission, commission, systemic discrimination, and denial of essential life-saving service may constitute arbitrary killings. See id. at para. 120.
Right to Life
The right not to be arbitrarily deprived of life is codified in articles 6 and 26 of the International Covenant on Civil and Political Rights (ICCPR), in Article 2 of the Universal Declaration of Human Rights (UDHR), and in customary international law, as a universally binding jus cogen norm. See id. at paras. 24-26. According to the report, the characteristics or factors that may be considered in determining “arbitrariness” include procedural and substantive aspects, such as in jurisprudence on the use of force; deprivations of life that are impermissible under international or domestic law; discriminatory laws or practices (in intent or in impact); elements of inappropriateness, injustice, or lack of predictability; and the applicability of safeguards to killings carried out by non-State actors. See id. at paras. 27-35. To this last point, the report refers to Inter-American Court on Human Rights jurisprudence, which emphasizes that where violations are not adequately prevented, investigated, or prosecuted – especially where there is an observable pattern of harms, like in gender-based violence and femicide – State responsibility for violations will attach. See id. at para. 35.
The United Nations Special Rapporteur on extrajudicial, summary or arbitrary executions is one of the thematic special procedures overseen by the UN Human Rights Council. The mandate was established in 1982. The Special Rapporteur examines situations of extrajudicial, summary, or arbitrary executions and supports the implementation of existing international safeguards relating to these crimes by conducting country visits, engaging in dialogue with States, transmitting urgent appeals and responding to communications alleging violations, issuing reports to the Human Rights Council and the UN General Assembly, and offering recommendations on how to promote and enforce the relevant standards. See OHCHR, Special Rapporteur on extrajudicial, summary or arbitrary executions.
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