Torture in Plain Sight: how national laws violate women’s human rights

© Gwenael Piaser[/caption]

For most of us, the word “torture” invokes images of Abu Ghraib or Guantánamo. But this is only part of the picture. All over the world women are tortured in homes, hospitals and courthouses. In any other situation these crimes would be treated as a public emergency. Yet today, as we celebrate the 17th International Day for the Elimination of Violence against Women, a clear record of abuse remains largely overlooked.

Ironically, this oversight is ultimately due to the incredibly public way in which women are tortured. But in order to understand the scope of the problem, we need to know more about the law of torture and cruel, inhuman or degrading treatment (CIDT).

Torture and CIDT are one of international law’s most prohibited crimes. They are outlawed at all times, in all places—no war or public emergency, however extreme, ever validates their use.

These rules come partly from internationally binding custom, but also from the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment of Punishment. The Convention prohibits “intentional infliction of severe mental or physical suffering” and requires investigation and prosecution of perpetrators, as well as remedy for victims.

A hugely important element of the Convention is that it extends beyond direct acts of torture and further bars governments from encouraging, accepting or acquiescing to torture by private persons. In other words, under the Convention a government is accountable where its agents carry out actions themselves (e.g. waterboarding), and where it has failed to take certain actions (e.g. failing to outlaw marital rape).

What makes this so significant is that it indicts the whole of a government’s reaction to torture and CIDT performed by private individuals. If a government fails to take appropriate actions to prevent private individuals from inflicting severe mental or physical harm it is a violation of under the Convention, the most important international treaty covering ill-treatment prohibiting torture and other forms of ill-treatment.

It is here, in the space between government obligation and government inaction, where women are tortured. Whether its laws permitting marital rape (122 countries), allowing child marriage (43 countries), outlawing or limiting abortion access (55 countries), laws requiring rape victims to marry their rapist (14 countries), stoning rape victims to death (6 countries), or the utter absence of laws on domestic violence (45 countries), virtually every country in the world is encouraging or acquiescing to privates acts of torture or CIDT. The failure of governments to take action in light of these heinous crimes against women violates their obligations under the Convention.

So why have so many horrible life experiences of women not been understood as torture or CIDT? In a word: discrimination. Crimes against women and girls are steeped in cultural misogyny and are generally wrongly justified in the name of custom or tradition. In many places female subordination is still viewed as natural, reinforcing masculine control over women’s bodies. The intensity of these cultural and political realities is most easily heard in frequent and deafening objections to giving women control over their own bodies.

Clearly, something needs to change.

Women’s experiences cannot be ignored or separated from the Convention’s broader framework. For its part, the human rights community continually recognizes that laws discriminating against women violate the Convention. But the rest of us must find ways to challenge prevailing concepts of torture, gender quality and women’s rights. We must work to ensure that governments take concrete actions to end discrimination amounting to torture and other ill-treatment of women.

International law and human rights bodies, including the Convention, on their own cannot undo generations of patriarchy, but they are an incredibly useful tool to build governments’ ability and awareness to end systemic violence against women.

Grant Shubin

Staff Attorney at The Global Justice Center (GJC)