A Paper – “An Overview of Major Challenges in Law and Practice regarding Gender Perspectives on Torture and Ill Treatment”, by Therese Maria Rytter, Director of Legal Affairs and Advocacy, DIGNITY – Danish Institute against Torture, and Member of the European Committee for the Prevention of Torture (CPT), forwarded by the Asian Human Rights Commission
Therese Maria Rytter
First of all, I would like to thank Professor Mendez and his team for this opportunity to shareDIGNITY’s experience from our research and development engagements with NGO partners in twenty countries in the global South as well as my experience from the European Committee for the Prevention of Torture (CPT), which is an inter-governmental expert body that seeks to prevent torture and ill-treatment through visits to places of detention and dialogue and cooperation with State parties in the Council of Europe region.I would also like to congratulate you with the very comprehensive and high-quality working paper, which basically covers most of the ‘gender perspectives on torture’ that we can possibly addressover the coming two days.
I will seek to highlight what I consider to be the main challenges in law andpractice, and – in doing so – I will touch upon three issues through a gender-lens:
• Firstly, the international legal framework
• Secondly, the enforcement of int’l norms at the national level
• Finally, the international monitoring of national law enforcement
1) International legal framework
As the UN Special Rapporteur on Violence against Women has highlighted, there is a normative gap at the international level.She argues that the lack of a legally binding instrument on violence against women makes it impossible to define such violenceas a human rights violation.While CEDAW obliges States to take measures to prevent and eliminate discrimination against women, it has no specific provision on States’ responsibility to act with due diligence in eliminating violence against women.
By contrast, at the regional level – in Africa, Americas and Europe – there are legally binding instruments on violence against women, such as the CoE Convention on Preventing and Combating Violence against Women. These instruments define violence against women as a human rights violations and also a form of discrimination, as well as criminalise several forms of violence against women, such as sexual violence, rape, FGM, and ‘honour crimes’. Finally, they oblige States to exercise due diligence when preventing or repressing violence against women.
If we turn to the existing international legal framework, Article 2 of the UNCAT obliges States to take effective measures to prevent torture, and similarly, article 2 of CEDAW requires States to take measures to prevent and eliminate discrimination against women.
While the definition of torture in the UNCAT is in fact ‘gender blind’, the CAT and the SRT have intelligently interpreted article 1 so as to include severe forms of gender-specific violence against women, as such acts are considered as ‘discrimination’ and hereby fulfil the ‘purpose’ element.
But the question is whether the fight against violence against women would be more effective, if explicit norms were adopted, not only prohibiting violence against women in its many different forms, but also spelling out the specific obligations that states should take to prevent and eliminate gender-based violence.
I would argue that if States are to take a systemic approach to fighting violence against women, which also addresses the root causes, includingthe pervasive inequality and discrimination, then the solution would be to adopt a distinct UN treaty, for instance an optional protocol to CEDAW. Hereby, one would replace the current ‘gender neutral’ framework, which often results in a de-politicised discourse, with one that addressesthe systemic gender inequality and discrimination that foster or allow violence against women.
2) Enforcement of international norms at the national level
In our engagements with human rights organistations in Africa, Asia, Latin America and the Middle East, we have experienced that one of the major obstacles in the fight against human rights violations in general – and violence against women in particular – in developing countriesis the inadequate development and functioning of law enforcement agencies and justice institutions. And this impacts negatively on access to justice, which in many countries is already hampered for women due to gender-based discrimination.
The reasons for the failure to enforce international standards at the national level range from deficiencies in criminal investigation and prosecution to inadequate adjudication. These deficiencies can often be attributed to two main factors.
– Firstly, it is often the result of the absence of well-functioning investigation mechanisms, and prosecution and judicial authorities. Often, police and prosecutors do not have the capacityor resources to carry out their functions and there areinsufficient numbers of prosecutors and judges.
– Secondly, it can be traced back to a lack of separation of the powers of the state. We see governments interfering with the investigative, prosecutorial and judicial functions, making these institutions incapable of discharging their functions. This failure is particularly pronounced in relation to marginalised and vulnerable groups, including victims of gender-based violence.
In fact, global studies (amongst others from the World Bank) confirm that law enforcement systems in the developing world are so ‘dysfunctional’ that most poor persons – including women – live outside the protection of law, with no protection against violence and other abuse.
3) International monitoring of national law enforcement
In our experience, this situation has not been sufficiently addressed within theinternational human rights system, although there is a positive trend underway. However, global human rights work has to a large degree been based onthe assumption that, if only universal human rights norms are well-articulated, then the implementation of these rights is possible, because systems exist in the developing countries to enforce these rights – as they do in developed countries.
Recent political science research tells us that, on their own, international human rights regimes have no preventive effect on state violence. In fact, research has shown that increased monitoring without accompanying efforts to build states’ capacities to meet their treaty obligations will not generate any impact. It will only highlight recurring failures.
And here, the international and regional human rights bodies have an important role to play in focusing more systematically on States’ law enforcement function. This will of course require that they acquire considerable empirical knowledge on the actual functioning of these institutions in the individual States – and also of the underlying causes of the dysfunctional systems – so they can make a critical review and formulate targeted recommendations.
4) Perspectives for the future
On the perspectives for the future, I would like to make a final point that in order to enhance the implementation of the recommendations of international bodies, such as CAT, SPT and CPT, it is important to build the human rights agenda into the international development agenda. This is particularly important in cases where the failure to comply with international treaty obligations is the result of structural shortcomings, such as the absence of rule of law.
The UNGeneral Assemblyrecently adopted a 2030 agenda for sustainable development. One of the goals sets out to achieve gender equality and empower all women and girls, and two of the targets aim at ending all forms of discrimination and violence against women and girls in the public and private sphere. This is one of the development arenas where international human rights human rights efforts to fight violence against women can be further pursued.
