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Topic two - Human rights approaches to violence against women
The first recognition of violence against women as a human rights problem - by the CEDAW Committee - developed alongside feminist readings of international human rights law.
Modern international human rights law developed in the years following World War II (1939-1945) as a response to catastrophic violence perpetrated by States against their own citizens, as well as civilians of the States they were fighting against. At first, there was more focus on civil and political rights - the right to life, the right not to be tortured, the right to liberty, and the right to a fair trial. The human rights framework began with the Universal Declaration of Human Rights (GA Resolution 217A), a resolution of the United Nations General Assembly, and was developed subsequently through international and regional treaties and resolutions. The human rights law framework sought to bind States to legal obligations to not violate human rights of individuals, and was not considered initially to bind the activities of private individuals with respect to the way they treat each other. Civil society organizations such as Amnesty International and Human Rights Watch developed the law along the model of State violations of the rights of individuals, through research and advocacy that highlighted the use of violence by States against individuals - for example, torture, the use of the death penalty, and extra-judicial killings and 'disappearances' of political opponents.
The first task of those seeking to draw links between violence against women and girls and States’ obligations under international human rights law was to emphasize the severity of violence against women – many forms of which are recognized as torture (A/HRC/7/3). Feminist human rights lawyers, notably Rhonda Copelon, wanted to show that violence against women - seen until the early 1990s as a "social problem" caused particularly by alcohol consumption - was of a similar gravity and importance as torture. This was controversial on two grounds. Firstly, because torture was understood as "severe pain or suffering, whether physical or mental" ( United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, GA Resolution 39/46) and the serious nature of violence against women was not well understood. Indeed, some forms of violence were not recognized as such - for example, the use of rape and sexual violence against women detainees was only recognized as a form of torture in a case in the European Court of Human Rights in 1997.
Secondly, violence against women was seen as a social problem, like petty crime, which was perpetrated by private individuals, not States - and therefore could not be a human rights problem.
Feminist lawyers challenged this model on legal and practical grounds. Rhonda Copelon described how the kinds of violence perpetrated by private individuals - individual men - against their wives - were very similar to acts of State torture. She also challenged the idea that domestic violence is secret, the State does not know about it, therefore it is not responsible. See the Case study 2.
Rhonda Copelon's work required the human rights movement to think differently about violence against women - to use its legal rules and advocacy processes to address violence against women, including domestic violence. Her work led to organizations like Amnesty International to start campaigning about violence against women as a violation of human rights.
The third important way of analysing violence against women as a human rights problem is to recognize it as a form of discrimination against women. In its ground-breaking General Recommendation 19, the Committee on the Elimination of Discrimination against Women identified violence against women as "a form of discrimination that seriously inhibits women's ability to enjoy rights and freedoms on a basis of equality with men" (CEDAW Committee, General Recommendation 19, para. 1).
In describing violence against women as a form of discrimination under Article 1 of the Convention on All Forms of Discrimination Against Women (GA Resolution 34/180), the CEDAW Committee made an important point about direct and indirect discrimination: it includes acts and situations which are created with the purpose of discriminating against women - that is, intentional discrimination which is done with the aim of discrimination - and acts and situations which have the effect of discriminating against women. Gender pay gaps, for example, may not have been planned to discriminate against women, or be intended to discriminate against women, but if the outcome is less favourable for women than for men, then this is a form of discrimination that the State is legally obliged to address. See Article 1 of CEDAW (GA Resolution 34/180).
It is worthwhile noting that as well as addressing the issue of discrimination, the CEDAW Committee addressed the issue of State responsibility for its own actions, and for the actions of private citizens (non-state actors): "It is emphasized, however, that discrimination under the Convention is not restricted to action by or on behalf of Governments" (see CEDAW, GA Resolution 34/180, Articles 2e, 2f and 5). For example, under Article 2e the Convention calls on States parties to take all appropriate measures to eliminate discrimination against women by any person, organization or enterprise. Under general international law and specific human rights covenants, States may also be responsible for private acts if they fail to act with due diligence to prevent violations of rights or to investigate and punish acts of violence, and for providing compensation (CEDAW, GA Resolution 34/180, Article 2e).
Next: Topic three - Who has rights in this situation? Prosecuting domestic violence and sexual violence - a human rights approach
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