CONCEPT NOTE - Thematic briefing: Protecting women from violence through the UN Convention Against Torture

Introduction

The UN Convention against Torture and Other Cruel, Inhumanor Degrading Treatment or Punishment is the most comprehensive internationaltreaty dealing with torture and other ill-treatment. While the Convention speaks of right-holdersin terms of “he” and “his”, it provides for the prevention of and protectionfrom torture and other ill-treatment to men and women on an equal basis.However, practice shows that an undifferentiated application of the provisionsin the Convention against Torture does not automatically translate into womenenjoying equal prevention, protection, access to effective remedy andreparation including rehabilitation. This discrepancy is particularly evidentwhen it comes to violence against women and girls by non-state actors – in thehome, in the workplace, on the street.

International human rights law has increasingly developedto recognise the need for a gender perspective on torture and otherill-treatment. Being the only legally-binding instrument at the international levelconcerned exclusively with the eradication of torture or other ill-treatment, ithas been crucial that the Convention against Torture covers acts of violenceagainst women when it amounts to torture or other ill-treatment.

Purposeof the briefing

The purpose of the briefing is to inform a discussionamongst members of the Committee against Torture (CAT) on the gender dimensionsof torture and other cruel, inhuman or degrading treatment or punishment and toexplore together how the CAT can provide an enhanced prevention and protectionframework for women and girls bearing in mind the particular risks of torture orother ill-treatment that they face.

Background

When women and girls are subjected to torture or otherill-treatment, gender has a considerable impact on the form the torture andother ill-treatment takes, the circumstances in which it occurs, theconsequences, and the availability of legal, medical and social remedies. The tortureof women and girls often assumes a sexual nature. Men and boys are alsosubjected to sexual torture, but women and girls are disproportionatelytargeted with rape, threats of rape and other forms of sexual violence.

Women victims of torture are confronted with majorobstacles when they file a complaint or a reparation request. In societies wheremaintaining the “honour” of a family and of society is seen as theresponsibility of its female members, the use of a form of sexual violenceagainst women and girls has an additional negative impact on their access tojustice and reparation, including rehabilitation. Women and girls may bethreatened with expulsion from their home or community, face severe stigma orworse, may be at risk of further violence – including being killed.

Many States do not secureevidence in a gender-sensitive manner, and their laws and court rules are notadapted to the special needs of victims of sexual violence. Consequently, womenand girls are frequently reluctant to report torture or other ill-treatment andrefrain from seeking justice. In this way, torture of women and girls often goesunnoticed and perpetrators escape punishment.

The crucial cause of the difference in the way inwhich men and women have traditionally been protected under the Conventionagainst Torture is that historically, the common understanding of torture wasthat it refers to violence and humiliation directly at the hands of stateactors whereas violence against women and girls often occurs at the hands ofnon-state actors.

Developments in the movement to end violence againstwomen have broadened the accentuation of human rights law to issues of concernto women and girls including rape and other forms of sexual abuse, traffickingand domestic violence which resulted in a deconstruction of the public andprivate divide. The adoption of the Convention on the Elimination of All Formsof Discrimination against Women (“the CEDAW Convention”) in 1979, and theissuing of General Recommendations No. 19 on Violence against Women in 1992 andthe 2017 General Recommendation No. 35 on gender-based violence against women,updating General Recommendation No. 19 are decisive steps forward.

On the converse, the creation of a ‘specializedbranch’ of, and on, women’s rights has meant, at least in part, amarginalization and compartmentalization of women’s rights and of women’srights institutions, as well as an excuse to deny or impede their inclusion withinthe mainstream human rights law framework and system. There remains a tendency that –very generallyspeaking—human rights violations against men are dealt with by the UN “general”treaty bodies while women’s human rights violations are dealt with by the UNCommittee on the Elimination of Discrimination against Women (“the CEDAWCommittee). While the CEDAW Convention is a crucial instrument for ensuringwomen’s human rights, it is equally important to draw on the strengths of theother human rights treaties and treaty bodies and to rely on their ability toaddress and redress violations of women’s specific rights (e.g. the right to befree from torture, rights of persons with disabilities, etc).

Furthermore, it is important to recognise that womenand girls often suffer different forms of human rights violations, since genderoften intersects with other identity characteristics. These intersectingidentities include age, ethnicity, national origin and religion inter alia, identities that also need tobe taken into account. For this reason, it is imperative that human rights bodiesin general use a gender and intersectional approach in developingjurisprudence, an approach that allows a deeper understanding of the multipleforms of discrimination that women and girls encounter, as well as thecomplexities of their needs, experiences and realities.

While the CAT had earlier addressed violence againstwomen at the hands of state officials, it expressedfor the first time in 2001 concern about trafficking and domestic violence as reflected in its concludingobservations and recommendations to Georgia, Greece (UN Doc A/56/44) and Zambia (UN Doc A/57/44). Since then, the CAT has increasinglyaddressed violence against women at the hands of private actors within thescope of its work. A major step forward came in January 2008, when theCAT published General Comment No. 2 clarifying in paragraph 18 thatwhere State authorities fail to exercise due diligence to prevent, investigate,prosecute and punish non-state actors, “its officials should be considered asauthors, complicit or otherwise responsible under the Convention for consentingto or acquiescing in such impermissible acts.” Inthe same paragraph, the Comment goes on by explaining that “the State’sindifference or inaction provides a form of encouragement and/or de factopermission” to non-State actors. Significantly, the CAT concludes the paragraphby noting the applicability of this principle “to States parties’ failure toprevent and protect victims from gender-based violence, such as rape, domesticviolence, female genital mutilation, and trafficking.”

Also in January 2008, the then Special Rapporteur ontorture and other cruel, inhuman or degrading treatment or punishment, ManfredNowak, issued an extensive report on torture through a gender perspective. The Rapporteurfocused in his report on three forms of gender-based violence in the privatesphere: domestic violence, female genital mutilation, and human traffickingbecause, in his words: “stating that these forms of violence can amount to torture if Statesfail to act with due diligence, illustrates the parallels between torture andother forms of violence against women.” In 2016, then Special Rapporteur on torture Juan Méndez repeated inhis report dealing with gender perspectives on torture and other cruel, inhumanand degrading treatment or punishment (UN Doc. A/HRC/31/57): “States areresponsible for the acts of private actors when States fail to exercise duediligence to prevent, stop or sanction them, or to provide reparations tovictims.”

Importantly, other international and regional bodies have been applying the duediligence test, notably CEDAW, e.g in General Recommendation No. 19 (1992) onviolence against women, para. 9 and more extensively in General Recommendation No. 35 on gender-basedviolence against women, updating General Recommendation No. 19, and the Inter-American Court of Human Rights ine.g. Veláquez Rodríguez v. Honduras, (series C No. 4, 29 July 1988). Similarly,the European Court of Human Rights has developed a body of jurisprudence inrelation to positive obligations to effectively prevent, investigate,prosecute, punish and provide remedies for acts of violence perpetrated bynon-state actors, e.g. Opuz v.Turkey, application no. 33401/02,9 July 2009 (violation of article 3, both on its own as Turkey failed toprotect the applicant and in conjunction with article 14 ECHR).

The cases above illustrate the synergies between theinternational and regional human rights bodies which have developed asignificant jurisprudence which aims to eradicate torture or other forms ofill-treatment. The Inter-American Court of Human Rights have decided a numberof cases on violence against women finding a number of states responsible forviolations of the prohibition of torture, including most recently in its rulingon the case of Linda Loaiza López andOthers v. Venezuela.

Methodology

Against this backdrop, Women’s Link Worldwide and theOMCT are co-hosting a thematic briefing before the CAT on how it can provide aneffective and equal protection framework for women and girls. The briefing willconvene experts on international human rights law, women’s human rights and on tortureand provide a space to discuss with the members of the CAT thegender-dimensions of torture and to highlight the parallels between violenceperpetrated by state actors and non-state actors and to explore concreteproposals.

Issues tobe addressed

Part I: Tortureof women under international law

Part II: Traffickingin women and girls

Part III: Rapeand other forms of sexual violence as torture – Two country cases

Part IV: Protectionof women from torture: comparative practice

Part V: Accessto justice and reparation, including rehabilitation

Part VI: Integrationof gender perspectives in the work of CAT & the way forward

Formatof the discussion

The briefing has been designed to offer valuableinformation and knowledge about the issues at stake, combined with an engaging,self-directed approach to acquiring new concepts by adopting apanel-dialogue-style engagement. To this end, we propose five panels with eachtwo to four presenters followed by a discussion with the members of the CAT inorder to share experiences, challenges and consider suggestions.

Aboutthe Organisations

Women’s Link Worldwide is an international humanrights organization that uses the power of the law to promote social changethat advances the human rights of women and girls, especially those facingmultiple inequalities. We work to uphold women’s and girls’ rights through therecognition of women’s experiences of violence and injustice in and at theinternational and regional human rights systems, as well as national courts,through litigation, third party interventions and participation in judicial dialoguesand capacity building strategies.

The world Organisation Against Torture (OMCT) is themain coalition of international non-governmental organisations (NGO) fightingagainst torture, summary executions, enforced disappearances and all othercruel, inhuman or degrading treatment and punishments. The strength of the OMCTlies in its SOS-Torture Network composed of almost 300 NGOs around the world.OMCT coordinates the NGO participation for theCommittee against Torture sessions. In 1996, OMCT launched a programmeto fight violence against women.