Amy Rogers and Munkhzul Khurelbaatar reflect on the challenges and potential of using the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women in Mongolia. Click here to read the post in Mongolian.
Mongolia was an early adopter of the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women (Optional Protocol), ratifying in 2002. Despite its eagerness to become a party to all core International Conventions and Optional Protocols, Mongolia has not embraced the additional complaint and inquiry mechanisms under the Optional Protocol or other international human rights treaties.
Gender discrimination and inequality in Mongolia
Mongolia is rightfully proud of its recent progress towards fighting discrimination and working towards equality for women. In 2005 a National Committee on Gender Equality was established as a consultative body within the Prime Minister’s office to implement gender mainstreaming. The Committee, which is functioning well despite limited resources, assisted with the drafting of the 2011 Law on the Promotion of Gender Equality. The Law creates the legal framework for promoting gender equality in the political, legal, economic, social, cultural and family sphere. In addition, the National Human Rights Commission was given the mandate to report on the progress of the Law every two years and to receive and resolve complaints of gender discrimination. In January this year, the Mid-term Strategy and Action Plan for the implementation of the Law were also adopted. The Government of Mongolia should be commended for these initiatives.
However, without implementation and societal change, laws alone cannot ensure gender equality and non-discrimination between men and women, no matter how positive a state’s intention. Needless to say, the under-utilisation of the Optional Protocol by Mongolian women should not be seen to indicate an absence of gender inequality and discrimination. If the Government were to promote the Convention on the Elimination of All Forms of Violence against Women (CEDAW) and the Optional Protocol’s complaint and inquiry mechanisms, we might soon see an increase in women actively claiming their CEDAW rights.
Unfortunately, the implementation of gender-related laws is seriously lagging. As the Zorig Foundation pointed out in the 2013 Universal Periodic Review (UPR) mid-term implementation assessment, “passing a law would not guarantee gender equality. Educating people and promoting a mechanism to oversee and monitor its implementation is crucial.” For example, despite the plethora of laws introduced by the new Government, discrimination and sexual harassment of women in the workplace, in universities, and on the streets is rife. Moreover, human trafficking has not decreased and violence remains an all too common experience for Mongolian women.
The hidden crime of domestic violence
Of particular concern is the high incidence of domestic and family violence against women and children, an inter-generational social phenomenon, that impacts at least 1 in 5 women and penetrates all parts of society- both rich and poor.
The Law against Domestic Violence is currently being overhauled. It has failed to rectify the vulnerable situation of women behind closed doors. Only 41 restraining orders have been issued since the Law’s enactment in 2005. Not one has been enforced by a court. Legal aid, compensation and healing support for victims remain an illusory concept. Sadly, the lack of protection for victims/survivors has contributed to a disproportionate number of women being sentenced to prison for crimes related to their experience of violence (62 of the 381 women in prison in November 2012 were victims of domestic violence who were sentenced for the murder of their partners). It also appears that there may be discrimination in sentencing resulting in victims/survivors of domestic violence receiving heavier sentences then they would if their crime was unrelated to domestic violence. Alarmingly, a pattern of intimate partner violence is not considered to be a mitigating factor in criminal sentencing.
Police statistics reveal that 534 women reported being victims/survivors of domestic violence in 2012, a significant increase from 2010 and 2011, which received 284 and 420 incident reports respectively. However, it is likely that rates are much higher given chronic underreporting and societal stigma associated with domestic and family violence.
The National Centre against Violence (NCAV), an NGO, is the main service provider for victims of domestic violence in Mongolia, running the country’s only women’s refuge in Ulaanbaatar (four other women’s refuges were established, but are now non-operational due to a lack of funding). They provide protection and legal services for between 800 to 1,200 clients annually.
In the past, domestic and family violence has not been viewed as a serious issue to merit Government attention and funding. However, with increased incident reporting and sustained advocacy efforts, this Government is beginning to understand the need to prioritse and address violence against women. Despite some progress, there remains a lack of technical, financial and human resources to fully implement the Law on the Promotion of Gender Equality. The National Human Rights Commission is currently working closely with female parliamentarians to lobby the Government to share the financial burden of providing legal services and protection to victims/survivors of domestic violence with NGOs.
The Concluding Observations of the Committee on the Elimination of Discrimination against Women (CEDAW Committee) on Mongolia reiterate a number of these concerns. Unfortunately, there has been a lack of progress in the implementation of UN treaty body recommendations on domestic violence, as reported in the National Human Rights Commission’s 2013 annual human rights report.
Barriers to Mongolian women using the Optional Protocol
Despite persisting gender inequality and discrimination against women in Mongolian society, to date women have not used the Optional Protocol. One of the more obvious reasons that women in Mongolia have not engaged with the Optional Protocol is that many women are simply not aware of the Convention and its Optional Protocol, which establishes an individual communication (complaint) procedure and an inquiry procedure that enable women to seek redress for breaches of CEDAW.
While Mongolia’s new Parliament is an enthusiastic “ratifier” of international treaties, the general public, judiciary and government are largely uneducated about the content and implications of Mongolia’s treaty obligations. This reflects a disconnect between the Ministry of Foreign Affairs and the other arms of Government. For example, judicial officers are not trained to implement treaty obligations and may not have access to accurate translations of treaties. In the area of domestic violence, many judges, especially in rural areas, are not aware of domestic violence laws that were drafted to give effect to CEDAW’s provisions, such as the availability of restraining orders to protect victims/survivors from violent partners. As a result, 37 women and men lost their lives in the last two and half years in connection with domestic or family violence and four women have committed suicide. The issue of CEDAW’s visibility has been raised as a serious concern by the Committee in its 2008 concluding observations.
Other NGOs have reported a lack of good faith by the Government to implement any recommendations of a UN treaty body. In 2006, the NCAV assisted a trafficking victim/survivor to make a complaint to the UN Special Rapporteur on violence against women. Those involved in the complaint were disappointed that, as of today, the Government has failed to respond to the complaint. However, no two UN mechanisms should be treated alike. Some may have more influence than others in certain countries, and recommendations under one mechanism may be more likely to be implemented than others.
Opportunities for Mongolian women to engage with the Optional Protocol
The Optional Protocol provides an additional avenue for exerting international pressure on the Mongolian Government to address violations of CEDAW, including violence against women, systemic discrimination and gender inequality.
The Committee has extensive experience investigating complaints of domestic violence, having issued ‘views’ (i.e. decisions) on a number of related individual communications. Some of these cases are eerily similar to cases of domestic violence in Mongolia. For example, the NCAV is currently awaiting the final adjudication of a case involving the failure of a judge to protect a victim of domestic violence by issuing a restraining order that could have saved her life. In this particular case, in 2011, a victim of domestic violence was murdered by her husband on her way to court to finalise a divorce. The court had ordered her to leave a women’s refuge to complete a mandatory reconciliation period with her abusive husband. This case could potentially be examined by the Committee through the individual communication mechanism, if the court fails to provide effective redress for the victim’s family. Additionally, given the systemic failure of the judicial system to protect victims of domestic violence and widespread judicial discrimination against female victims, an NGO such as the NCAV could consider requesting the Committee to conduct an inquiry into domestic violence using the inquiry mechanism.
The use the Optional Protocol would not infer that the domestic judicial system is unworkable. It would, however, provide a forum to address this serious and widespread issue that has not been justly addressed by the exhaustion of all domestic judicial remedies. The United Nations treaty body system is premised on the assumption that all states, despite their good intentions, face difficulties in implementing human rights. Given Mongolia’s relative inexperience in addressing gender issues, as well as the extensive expertise of the 23 Committee members, Mongolia could benefit from their views and jurisprudence. This would be of particular benefit as Mongolia is in the midst of developing its legal system and the Committee could help steer the legal system in a gender-friendly direction.
The Mongolian Government should raise awareness of CEDAW and the Optional Protocol, by providing or facilitating training to NGOs and to government and judicial officers responsible for implementing CEDAW’s obligations through domestic laws.
The timing is right for Mongolia to engage more with the UN treaty body system, both from the perspective of the evolution of Mongolia’s legal system, and also in terms of international politics- demonstrating its willingness to take on advice from the UN system will assist Mongolia in its bid for a seat on the Human Right Council in 2015. Most importantly, such engagement provides an opportunity for Mongolian women to strengthen their ability to exercise their human rights on the basis of equality.
Munkhzul Khurelbaatar is a lawyer and currently heads up the Human Rights Education Division of the National Human Rights Commission of Mongolia. Previously Munkhzul has worked as the Coordinator of the Legal Reform Unit of the National Centre against Violence, a Mongolian NGO that provides legal assistance and protection to victims of domestic violence.
Amy Rogers is an Australian human rights advocate currently living in Mongolia, working at the National Human Rights Commission of Mongolia as a Human Rights Education Officer. Recently, Amy has worked for the Australian Human Rights Commission and GetUp!
The authors would like to thank and acknowledge Ariunaa Tumurtogoo for her translation work, Zolzaya Batkhuyag of Young Women for Change and Zorig Foundation, and Arvintaria Nordogjav and Munkhsaruul Mijiddorj of the National Centre against Violence for their valuable comments and contribution.
The authors would also like to thank and acknowledge photographer Mareike Guensche for generously allowing use of the photo of a young mother enjoying the sun at Yarmag ger district, Ulaanbaatar.
 The National Committee of Statistics in 2009 carried out “Research on reproductive health” with the support of the United Nations Population Fund (UNFPA) Mongolia surveying 6 894 women. 19% or 1/5 women said that they had been victims of domestic violence.
 Analysis of court decisions regarding restraining orders in domestic violence cases, carried out in 2009 by the National Center against Violence.
 Analysis of cases of women in prison due related to domestic violence, carried out by the National Center against Violence in 2012.
 General Department of Police statistics from 2010, 2011, and July 2012.