Gender-based violence against women (GBVAW) is the most systematic and widespread human rights violation worldwide. It includes sexual crimes such as rape or harassment but also forced marriage, intimidation, threats and physical violence. In this blog post, our expert presents five reasons why GBVAW is torture and should be legally considered as such.
Mylene comes from an impoverished area in the rural Philippines. As a young adult, she moved to Manila in the hope of a better future. Instead, she fell into the hands of traffickers and was forced into prostitution. Over the years, she experienced numerous forms of violence. For instance, the police arrested her for vagrancy and raped her in exchange for charges being dropped. Once a police officer detained her in an apartment for several days where he sexually abused her. One night she escaped naked from a car containing four police officers who, after forcing her to use illegal drugs, had taken turns raping her inside the moving vehicle. She also suffered frequent physical and sexual violence from those who sought her services.
Mylene, who is now 42, shared these and other horrific experiences with the author of the Philippines country chapter in a recent report published by the World Organisation against Torture (OMCT) and the Philippines Alliance for Human Rights Advocates (PAHRA) entitled “Women Break the Silence, Gender-based Torture in Asia”. The report, whose eight chapters cover Afghanistan, Bangladesh, Cambodia, Mongolia, Nepal, India, the Philippines, and Sri Lanka, highlights the utility of applying the anti-torture framework to gender-based violence against women.
It has long been accepted in international law that violence by private actors can be a form of torture or ill-treatment when State authorities fail to exercise due diligence
It is clear that Mylene was tortured. Violence by government officials can constitute a form of torture or other ill-treatment, including when it is exercised outside law enforcement operations and the custodial setting. Moreover, it has long been accepted in international law that violence by private actors can be a form of torture or ill-treatment where State authorities have reasonable grounds to believe that such acts are being committed by private actors and fail to exercise due diligence to prevent, investigate, prosecute and punish such private actors. In such instances, it is the State that bears responsibility and its officials should be considered as authors, complicit or otherwise responsible under the Convention for consenting to or acquiescing in acts like domestic violence, trafficking and other forms of GBVAW.
Unfortunately, the anti-torture framework has been overlooked by many relevant stakeholders as is usually the case when it comes to gender-based violence against women. As the author of the Philippines chapter confirms, neither law enforcement, prosecutors, judges, nor the organisation that now supports Mylene has perceived such ordeals as torture, let alone thought of the anti-torture legal framework to apply to such situations. This is a shame since there are several benefits in applying the anti-torture framework as enshrined in the UN Convention against Torture and Other Cruel, Inhuman and Degrading Treatment and Punishment (CAT Convention) to cases like the one of Mylene and GBVAW in genera.
Here are five reasons why gender-based violence against women should be considered torture by law.
1. Special stigma and gravity
The absolute prohibition of torture carries a special stigma. Together with crimes like slavery and genocide, torture belongs among the gravest crimes under international law. By acknowledging that GBVAW can fall under the definition of torture or other ill-treatment, the same gravity and stigma are attached to such forms of violence. The scale and impact of gender-based violence on women, families and society as a whole certainly justify this. The World Health Organisation, for instance, estimates that one in three women globally experience violence in their lifetime. What is more, GBVAW has been on the rise since the Covid-19 outbreak. The pandemic has also laid bare the failure of previous efforts to effectively respond to abuse against women.
2. No justifications and exceptions
The absolute prohibition against torture is one of the most universally recognized human rights that has become accepted as a principle of customary international law. Moreover, out of the 193 Member States of the United Nations, 173 have ratified the CAT Convention. Additionally, the prohibition of torture has attained the status of ius cogens or peremptory norm of general international law from which no exception is permitted. This also applies to GBVAW. This means that for crimes like domestic violence, rape, or feminicide there cannot be any settlements. For instance, a victim cannot be coerced into marrying her rapist for the latter to avoid a criminal conviction. The ius cogens nature of a crime also rules out all justifications, including in the name of culture or religion. The CAT has recurrently denounced traditional practices like female genital mutilation or early and forced marriages of girls and women.
Gender-based crimes against women also need to be dealt with in a country’s criminal justice system and not adjudicated by religious or community elders.
3. Obligation to criminalise and prosecute
The universal prohibition of torture requires that States criminalise all acts of torture. If GBVAW is considered a form of torture, this requirement also applies to such acts. The CAT has repeatedly raised concerns that domestic violence, rape, forced marriage, forced sexual exploitation, or trafficking are not criminalised in domestic laws.
The obligation to criminalise GBVAW also requires that all allegations of such crimes are thoroughly and effectively investigated, that the alleged perpetrators are prosecuted and, if convicted, are punished. The CAT frequently raises concerns that gender-based crimes are not properly investigated, prosecuted and punished. Our report shows similar findings. In Bangladesh, for instance, only 3% of men accused of rape get convicted. Moreover, gender-based crimes against women also need to be dealt with in a country’s criminal justice system and not adjudicated by religious or community elders.
4. Obligation to redress and provide rehabilitation to victims
The anti-torture framework provides for a comprehensive reparative concept that entails restitution, compensation, rehabilitation, satisfaction, and guarantees of non-repetition. All these standards are essential for procedures dealing with GBVAW, regardless of whether perpetrated by State officials or private actors. The obligation to prevent, investigate, prosecute and redress such crimes also extends to acts committed by private individuals. In concrete terms, this means that States are obliged to provide medical care, psychological support, legal assistance, access to helplines and adequately funded safe shelters.
States are obliged to provide medical care, psychological support, legal assistance, access to helplines and adequately funded safe shelters.
5. Obligation to take preventative measures that address the root causes
The prohibition against torture requires States to take effective legislative, administrative, judicial or other measures to prevent all acts of torture. The CAT has made clear that this includes broad public awareness-raising campaigns on all forms of GBVAW and adopting and implementing a coherent and comprehensive national strategy for the elimination of gendered torture that includes legal, educational, financial, and social components. To effectively fight GBVAW, the CAT has further required States to conduct training for public officials concerning their obligation under the CAT Convention to protect women from violence.
Moreover, the CAT has asked States to take effective measures, in particular, awareness-raising to address the root causes of GBVAW. The authors of the Women Break the Silence report have the same key message. Gendered torture can only be fought effectively by addressing: i. patriarchy and the historical and structural inequality in power relations between men and women; ii. the multiple discriminations that women face, particularly those from religious or ethnic minority communities and women from impoverished backgrounds; iii. the lack of gender-sensitive justice systems; iv. the lack of education and awareness on equality and sexuality; v. the lack of gender-sensitive crisis response, vi. the lack of gender-sensitive rehabilitation programmes and social services; and vii. the lack of economic independence and political power of women.
The anti-torture framework provides for comprehensive reparations that include a systemic transformative change which in turn can help reduce gender discrimination and inequalities. Only a holistic approach to gendered torture provides meaningful redress to survivors like Mylene and can reduce the risk that more women and girls fall victim to violence.
Nicole Bürli is Senior Human Rights Adviser for Asia at the OMCT
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