Violence against women as a human rights issue

Domestic violence and marital rape was until recently a non legal issue

Crizis center movement, started UK in 70’s Norway first crizis phone 1977 – today 51 centers

1984, marital rape Norwegian Supreme Court

From the local and internatinal to

the international

1. The anti-violence movment was local, national and global. In Europe – the Brussel Tirbunal in 1976

2. CEDAW 1979 - silent on violence – a non discrimination instrument

3. Feminst scholarship on sexual violence in the 1980’s – Catharine A. MacKinnon. Feminism Unmodified (1987) – rape, sexual violence, sexual harassment – an equality issue

Towards a human rights framework

CEDAW General Recommendation 12 (1989)

”articles 2, 5, 11 , 12 and 16 of the Convention requires states to protect women against violence of any kind”

- violence included in state- reportng

CEDAW general recommendation 19 (1992)

”Gender based violence is a form of discimination the seriously inhibts women’s ability to enjoy rights and freedoms on the basis of equality”

CEDAW GRC 19

Reinterpretation of article 1 – the definition of discrimination :

• “ The Convention in article 1 defines

discrimination against women. The diefinition of discrimination includes gender-based violence, that violence directed against a woman because she is a woman or that affects women disproportiaonately. It includes acts that inflict physical, mental or sexual harm or suffering, threats of such acts, coercion and other deprivations of liberty. Gender-basedd violence may reach specific provisions of the Convention, regardless of whether these provisions expressly mention violence”

GRC 19, gender sterotyping, violence and discrimination

The relationship between articles 2(f), 5 and 10

• ”Traditional 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 abuse..”

GRC 19 – article 6, 11, 16

prostituion – harassement - family • “Poverty and umployment increase trafficking in

women..put women at risk of violenec and abuse”

• “.. Prostitutes need equal protection of laws against rape and other forms of violence..”

• “Equality in employment can be seriously impaired when women are subjected to gender-specific violence, such as sexual harassment in the workplace

• “States parties should ensure that laws against family violence and abuse, rape, sexual assault and other gender based-violence give adequate protection…

GRC 19 – prevent, protect, and fulfill – proactive/preventive

duties

- Reporting - Statistics - Effective complaint procedures - Establish support services, rehabilitation and

councelling

Declaration on the Elimination of Violence against Women, 1993

http://www.ohchr.org/EN/Issues/Women/SRWomen/Pages/SRWomenIndex.aspx

Wienna Conference of Human Rights 1993 – Three measures to strengthen the human rights of women within the UN system:

- Gender mainstremaing principle

- Individual complaint procedure

- Special rapporteur on violence against women

The declaration – definition of violence

Article 1 and 2 - definition

” .. Any act of gender-based violence that results in, or is likely to result, in sexual or psychologica lharm of suffering to women, including threats of such acts, coercion or arbitraty deprivatino of liberty, whether occuring in public or in privat life.”

family, community, state condoned wherever it occurs

Declaration – article 4

Article 4 (c and d) of the UN Declaration on Elimination of Violence against Women requires States to ‘exercise due diligence to prevent, investigate and in accordance with national legislation punish acts of violence against women whether those actions are perpetrated by the State or private persons.’

The Declaration cont.

• Article 5 – the UN: ”Encourage coordination between

organizations and boides of the United nations system to incorporate the issue of violence against women into ongoing programmes, especiailly with refrecen to groups of women particularly vulnerable to violence”

The relationship between DEDAW and CEDAW

CEDAW provides the legal foundation for the conceptualization of violence against women as a human rights violatin

DEDAW which is a declaration with a rapporteur provides a dynamic tool for interpretation and implementation

The two form a dynamic partnership in the creation of international law – through consistent cross- references.

Mainstreaming within the UN system

• GRC 28 Human Rights Committee (2000)

• ”States parties should ensure that traditional, historical and religious or cultural attituded are not used to justify violations of women’s rights to equality before the law and to equal enjoyment of all Covenant rights…”

Individual complaints – CEDAW- the due dilligence principle

(Byrnes)

Majority of indivdual complaints under OP -gender violence

4 cases involving a failure of states parties to provide effective legal/and or practical protection against family violence – serious threat to life – and physical and mental integrity

http://www2.ohchr.org/english/law/jurisprudence.htm

A.T. vs Hungary CEDAW/C/36/D/2/2003

Claim that the Hungarian State had breached its

obligation to provide effective protection against violence from former husband

Consideration of admissability – eventual outcome of civil proceeding unlikely to bring effective relief – criminal conviction not appealed – not to be expected as no temporary protection was offered under Hungarian law

Breach of article 2a,b and e: existing remedies not capable of providing protection against ill treatmen. Planned measures not in place

A.T versus Hungary

”Women’s human right to life and to physical and mental integrity cannot be superseded by other rights, including the right to property and the right to privacy”

Committee refers to concluding comment to Hungary in 2002.

* Breach of article 5 and 16 – sterotypes related to women’s subordination contribute to justify violence – manifest in lack of legal protection.

A.T. continued

Communication:

*Individual: Reparation, safe home

*Structural: Implement CEDAW’s concluding comments, ensure legal protection..

Sahide Goecke v Austria CEDAW/C/39/D/5/25

Domestic violence ending in death of Wife

at the hands of her husband.

State by the police/prosecution held accountable for for failing to exercize due dillegence to protect Sahide..Women’s human right to protection cannot supersede the perpetrator’s rights related to the assumption not guilty unless otherwise proved

Cont.

The Public Prosecutor on two occasions rejected request to detain violent husband who did not accept restraint order.

Considerations:

Admissibility: Constitutional court procedure could not be regarded as remedy

Goecke cont

Violation of CEDAW 1, 2 a, c, f and 3

Protection of the victim’s right to life and the presumption of innosence:

”The Committee is of the view that the the perpetrator’s rights cannotsupersede women’s human rights to life and to physical and mental right to integrity”..In a case where the high treshold of violence was crossed the Public Proscutor should not have denied request to arrest violent husband.

Communication 18/2008 – The Vertido case

Rape of female employee

Stereotyped attitudes – in terms of what women should and should not do when confronted by rape – of the judiciary – was seen by the CEDAW Committee as obstructing women’s rights to fair trial

Violation of 1, 2c and f, and 5 a – GRC 19

Vertido cont.

”The Committee stresses that stereotyping affects women’s rights to a fair and just trial and that the judiciary must take caution not to create inflexible standards of what women and girls should be or what they should have done when confronted with a situatin of rape merely based on preconceived notions of what defines a rape vicitim”

Vertido cont

Committee found that: ”..clear from the judgement that the assessment of the credibility of the author’s verseion of event was influenced by a number of stereotypes…” (see quote from judgement p 15)

Individual remedy from state- compensation (due dilligence)

Structural measures – change of law – appropriate training of judges

Domestic violene – social and economic rights issues

The special rapporteur on the right to housing – addressing article 11 CESCR

CEDAW 19/Declaration – violence in the private sphere – family/marriage

GRC CESCR – right to housing – not addressing gender violence..

UN special rapporteur on the right to housing, Kothari:

Cont

Special rapportuer housing report 2005

*Adequate – p.41 – women living with husband’s families vulnerable to eviction. As widows, domestic violence and divorce”

Critique: right to security, peace and dignity should be main principle

• Security of tenure- ”domestic violence is a key cause of women’s homelesness”

• - state responsibility to ensure protection of safe home

Yemshaw v London Borough of Hounslow

CEDAW an interpretive source in respect of the ECHR, particularly in respect of the non-discrimination provision in Article 14. in Yemshaw v. London Borough of Hounslow, Baroness Hale briefly referred to the CEDAW Committee’s definition of gender-based violence in General Recommendation 19, in interpreting a statutory provision deeming persons to be homeless where they are exposed to violence in the home. [2011] 1 WLR 433, para. 20.

Opus v Turkey

Multiple violent assaults, murder og mother of assaulted wife

Violation of right to life ECHR 2 , article 8 right ot family life. Breach of international due dilligence norm, Article 14 ECHR in conjunction with artilce 2 and 3

Opus v Turkey

ECHR reference to GR 19, A.T. v Hungary..

198 «established that the criminal- law system, as operated in the instant case, did not have an adequate deterrent effect capable of ensuring the effective preventon of unlawful act by.. Against the personal integrity of the applicant and her mother and thus violated their rights under article 2 and 3 of the Convention.»

Violation of article 2, 3 and and 14 of the Conventions

Towards a new paradigm, criminal forms of sex discrimination – gender crime

Rome Statute of the Criminal Courts, arts. 7 (19 and 7 (1) – crimes against humanity: «rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexaul violence of comparable gravity»

Prosecutor v. Bemba.»women were raped systematically to assert dominance and to shatter resistance. Men were raped to destroy their authority»

Prosecutor v. Al Bashir