Universal-Womens-accesss-to-justice-Publications-Practitioners-Guide-Series-2016-ENG

138 PRACTITIONERS GUIDE No. 12
justice by, for example, enabling the powerful to ‘forum shop’
to gain legal advantage. Third, plural legal systems, defended
on the basis of culture and religion can be resistant to reform in
favour of women’s rights.” 361
Alternative dispute systems as a method of dealing with
the crime of domestic violence
In the case of domestic violence, the use of alternative dispute
resolution processes is particularly problematic. Several aspects
of international human rights law and standards – such as in
article 48 of the Istanbul Convention, and in CEDAW General
Recommendation 33 – explicitly forbid the use of alternative
dispute resolution as a method of addressing criminal
responsibility for domestic violence.
It has been recognized that it is contrary to the rule of law and
women’s equality before the law to remove certain serious
crimes from the ambit of the ordinary justice system, including
those consisting of violence against women. The use of
alternative dispute mechanisms to deal with domestic violence,
rather than considering such violence as a crime, is typically
based on a persistent and damaging stereotype: that in a
situation of domestic violence, both the perpetrator and the
victim are equally at fault for the violence and that both need
to moderate their behaviour in order to resolve the issue.
Making alternative dispute resolution compulsory in cases of
gender-based violence has been identified as non-compliant
with women’s human rights guarantees. Article 48 of the
Istanbul Convention thus requires States parties to “prohibit
mandatory alternative dispute resolution processes, including
mediation and conciliation”. Most recently, the CEDAW
Committee went further, and called on all States parties to the
CEDAW Convention to “ensure that cases of violence against
women, including domestic violence, are under no
361
UN Women, “Progress of the World’s Women 2010-2011. In pursuit
of justice” (UN Publications, 2011), page 68.