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Violence against Women by private actors: Is there State responsibility under the Convention against Torture?

Twenty years ago, just before the 1995 Beijing World Conference on Women, non-governmental activists urged governments to look at the world through women’s’ eyes. A key focus was the problem of gender-based violence, ranging from domestic violence to trafficking to rape, including as a weapon of war. Advocates argued that these issues had not been treated seriously as part of the human rights discourse because human rights bodies excluded them. Instead, such bodies addressed acts that took place in ‘public’ space, which excluded the world in which women dwelled; many claimed it was a biased, even discriminatory discourse. Violence against women - and its infliction of severe pain and suffering - was well-documented; the only difference between “ordinary torture” and gender-based violence was that the perpetrators of domestic violence and trafficking slavery were “private” or non-State actors. In 1994, CUNY Law Professor Rhonda Copelon wrote that “the egregiousness of gender-based violence has been matched only by its absence from the human rights discourse”. That has changed today, and it is worth reflecting on why and how.

Initially, acts of gender-based violence were essentially invisible in the work of the Committee against Torture. Beginning in 2001, I often asked questions about the treatment of women during the Committee against Torture’s review of each State party’s compliance with the Convention. I got few answers. In some cases, the Committee found State action to be inadequate to prevent the abusive treatment. When it referred to domestic violence and trafficking, it did so in the context of private acts about which the State’s authorities had failed to exercise due diligence.

General Comment 2 of the Committee against Torture, approved in November 2007, summarizes its jurisprudence. It emphasizes that States, not individuals, undertake obligations under the Convention. While torture is often envisioned in popular understanding as brutality inflicted by - at the hands of - a state official, it is also clear that the Convention’s scope of concern is broader than that. It includes contexts of custody or control where the State has obligations with regard to the acts of State agents, private contractors, and others acting in official capacity or on behalf of the State or under its direction or control, such as prisons, hospitals, schools, institutions that care for children or the disabled, etc. The State's obligations also apply to “contexts where the failure of the State to intervene encourages and enhances the danger of privately inflicted harm”.

General Comment 2 addresses acts committed by private individuals with the “consent or acquiescence” of a public official and identifies the circumstances in which they amount to the practices of torture or ill-treatment under the Convention. A systematic failure to provide protection against such violence and to hold the perpetrators accountable would engage the Convention’s attention. General Comment 2 emphasizes the Committee’s practice of addressing such situations “where State authorities or others […] know or have reasonable grounds to believe that acts of torture or ill-treatment are being committed by non-State officials or private actors and they fail to exercise due diligence to prevent, investigate, prosecute and punish […]”. It explains that such inaction becomes a “form of encouragement and/or de facto permission”. The Comment’s explicit use of the concept of due diligence to explain this kind of acquiescence has thus opened the Committee’s eyes to examine issues of private violence and public responses, looking sometimes “through women’s eyes”.

Private individuals and groups made vulnerable by discrimination must be protected under the Convention. Article 1 of the Convention against Torture identifies prohibited acts set forth in the definition when carried out for “any reason based on discrimination of any kind […]”.

The Comment explains that laws regarding obligations under the Convention must be “in practice applied to all persons” regardless of such factors as race, age, religious belief or affiliation, gender, sexual orientation, transgender identity, mental or other disability. In keeping with the concept of due diligence required by State authorities, the Comment specifies that there is an obligation to protect members of these or other groups especially at risk of torture “by fully prosecuting and punishing all acts of violence and abuse against these individuals […]”.

As the Comment explains, “The contexts at which women are at risk include deprivation of liberty, medical treatment, particularly involving reproductive decisions, and violence by private actors in communities and homes […]”. Significantly, the Committee against Torture asks States parties to identify such situations and report on the measures taken to punish and prevent them.

Article 2 not only obligates States parties to take administrative, legislative, judicial, and other measures to prevent torture, but also that these measures must be effective. The Committee calls on States to reevaluate preventive measures for their effectiveness and to revise and replace them as needed.

Effective measures require more than words: they require continual evaluation. The Committee against Torture demands information about compliance with the norms of the Convention including disaggregated data from States parties to enable the Committee to identify, compare and recommend steps that would otherwise go unnoticed and unaddressed. This step has helped encourage monitoring of abuses which were once ignored – abuses like domestic violence, rape, and trafficking.

Acts by non-state or private actors are matters of concern if the State fails to exercise due diligence. The Committee’s General Comment 2 has specifically recognized the applicability of the Convention to gender and especially to domestic violence. So often condoned or ignored by governments, the urgency of a State response to domestic violence is specifically underlined in General Comment 2.

More than seven years have passed since the adoption of General Comment 2 and the Committee against Torture has substantially expanded its sensitivity and awareness of the issue of violence against women, and rape. It now routinely addresses the subject in its concluding observations following examinations of periodic State reports. For example, the Committee identified rape as problematic under the Convention in 39 States between 2002-2012.

When Eleanor Roosevelt reflected on the Universal Declaration of Human Rights ten years after its adoption, she reminded observers that human rights had to have meaning “in small places close to home” - the real world of the ordinary person. As Professor Copelon reminded us, human rights also begin at home.

Ms Felice Gaer

Felice Gaer is a member, and currently Vice chair, of the Committee against Torture. She directs the Jacob Blaustein Institute for the Advancement of Human Rights in New York.

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