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Addressing customary laws and practices that conflict with formal laws

  • “Honour” crimes are rooted in cultural, not religious, practices. (See: Council of Europe Parliamentary Assembly Resolution 1327 (¶ 4)) Drafters should take all appropriate measures to ensure that customary practices and laws do not authorize or condone “honour” crimes or “honour” killings.
  • Laws should resolve conflicts between customary and formal laws in a manner that respects women’s human rights and principles of gender equality. (See: UN United Nations Handbook for legislation on violence against women, p.15) Many countries have multiple separate legal systems, and formal, customary, and even state-sanctioned customary legal systems may co-exist in these countries. Conflicts among these systems, both in the written laws and their application, can arise. While one system may provide protection to women from discrimination, another system may  discriminate, in law or in practice, against women. Drafters should consider adopting supremacy laws that grant primacy to the legal system that is most in compliance with international legal standards. Laws should ensure that any supremacy laws include outreach to local and customary leaders to facilitate the implementation of these guarantees. Laws should ensure that use of a customary adjudication mechanism does not preclude the victim from accessing the formal justice system.          
  • Drafters should consider prefacing laws condemning “honour” crimes and “honour” killings with the international legal obligations requiring states to modify such practices. Under CEDAW, states are obligated to take appropriate measures to modify social and cultural patterns that discriminate against women (Art. 5(a)). The Committee on the Elimination of All Forms of Discrimination against Women General Recommendation 19 states that “[t]raditional attitudes by which women are regarded as subordinate to men or as having stereotyped roles perpetuate widespread practices involving violence or coercion, such as family violence and abuse, forced marriage, dowry deaths, acid attacks and female circumcision. Such prejudices and practices may justify gender-based violence as a form of protection or control of women. The effect of such violence on the physical and mental integrity of women is to deprive them the equal enjoyment, exercise and knowledge of human rights and fundamental freedoms.” CEDAW has also expressed concern over practices that uphold culture over eliminating discrimination. In its 1999 Concluding Observations on Nepal’s periodic report, the Committee expressed its concern over the Supreme Court in Nepal prioritizing the preservation of culture and tradition when interpreting discriminatory laws. Also, the United Nations Human Rights Committee has drawn attention to minority rights that infringe upon the rights of women. In General Comment 28, it stated that those “rights which persons belonging to minorities enjoy under article 27 of the ICCPRCovenant in respect of their language, culture and religion do not authorize any State, group or person to violate the right to the equal enjoyment by women of any Covenant rights, including the right to equal protection of the law” (¶ 32). The Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa also requires States Parties to prohibit “all forms of harmful practices which negatively affect the human rights of women” and take all necessary legal and other measures to protect women from harmful practices and all other forms violence, abuse and intolerance (Art. 5). Similarly, the African Charter on the Rights and Welfare of the Child requires states parties to take “all appropriate measures to eliminate harmful social and cultural practices affecting the welfare, dignity, normal growth and development of the child,” including customs and practices that discriminate based on sex (Art. 21).

(See: Sections on Sources of International Law relating to “Honour” Crimes and Killings and Harmful Practices)

 

Promising practice: Some governments have recognized customary law and local government authorities’ decisions, but invalidate those laws that violate provisions in the constitution or civil code. Constitutional or civil code provisions should comply with international human rights standards and respect women’s human rights.