by Angelika Kartusch, Austria
In 1979, the United Nations General Assembly adopted the Convention on the Elimination of all Forms of Discrimination against Women (CEDAW), a milestone for the recognition of women’s right to gender equality. To date, 187 states parties have ratified this legally binding instrument, which entered into force in 1981. Discrimination is defined in Article 1 CEDAW and encompasses both direct and indirect discrimination, no matter whether committed by state officials or private persons and entities. Further, states parties are obliged to eliminate gender-based discrimination of women in law (“formal equality”) and practice (“substantive equality”).
Gender-based violence – a form of discrimination
Although the Convention addresses a broad range of areas of life in which women experience discrimination, such as political life, employment, the health system or education, it makes no reference to violence against women. This gap was closed by the CEDAW Committee, the expert body in charge of monitoring the implementation of the Convention, in 1992, when it issued General Recommendation No. 19 on violence against women (GR 19). According to GR 19, gender-based violence (GBV) is a form of discrimination and as such encompassed by the CEDAW’s definition of discrimination in Article 1. GBV is understood as violence that is directed against women because they are women or that affects women disproportionately. GR 19 reiterates the obligation of States to eliminate violence against women committed in the private sphere by acting with due diligence to prevent, investigate and punish such violence and to provide compensation to victims.
Standards for legislation to address violence against women according to CEDAW
While GR 19 is as such not legally binding, it is a source of authoritative interpretation of the Convention and, through its list of recommendations, provides a comprehensive framework for state legislation to eliminate GBV and provide adequate and effective protection to all women. To this end, GR 19 calls upon states to establish criminal sanctions, civil remedies and effective complaint procedures and remedies, including compensation. The implementation of existing laws should be strengthened gender-sensitive training of judges, police and health workers, the establishment or support of services to women victims, such as shelter and counselling, or the evaluation of existing measures as to their actual impact in preventing and responding to GBV.
Since the entry into force of the Optional Protocol to CEDAW in 2000, which introduced an individual complaints procedure for women victims of violations of the Convention, the GR 19 has further guided the development of the Committee’s jurisprudence in assessing complaints addressing violence against women. For instance, the Committee held that the lack of restraining or protection orders to protect women from violent family members (case A.T. v. Hungary) or to protect victims of sexual violence from re-victimization, following the release of perpetrators from detention (case S.V.P. v. Bulgaria) violated the Convention.
In T.P.F. v. Peru, the CEDAW Committee has addressed a complaint regarding the lack of legislation to regulate access to therapeutic abortion, resulting in hospitals arbitrarily deciding on requirements and procedures. The Committee found that Peru had violated CEDAW by failing to put in place an appropriate legal framework to enable women to exercise the right to therapeutic abortion which would guarantee them legal security, for example through providing a mechanism for rapid decision-making and a right to appeal.
Effective implementation of anti-violence legislation
As regards the implementation of existing legal frameworks, the Committee in the cases of Gökce v. Austria and Yildirim v. Austria underlined that the adoption of laws in itself is not sufficient to fulfil the obligation under the Convention: laws must be effectively applied by authorities that adhere to the standard of due diligence. In both cases,the failure of the public prosecutor’s to arrest the perpetrators, even though the authorities knew or should have known that the women concerned were in serious danger, constituted a breach of the standard of due diligence. Further, the Committee also dealt with claims of discriminatory interpretation of laws by the judiciary. For instance, in Vertido v. The Philippines, the defendant was acquitted of rape charges because the judge based her judgment on discriminatory and stereotyped myths about male and female sexuality and the behaviour expected from a “typical” victim, which led the judge to favour the credibility of the defendant over the victim (). The Committee found that the state had breached its obligations under CEDAW. A violation of the Convention was also found in Jallow v. Bulgaria: a civil court, rather than protecting the complainant and her daughter from domestic violence, issued a protection order against her in favour of her violent husband, relying exclusively on the perpetrator’s statements. Further, the criminal justice authorities failed to undertake timely and suitable investigations into the reports of domestic violence made by the complainant.
The CEDAW Committee’s GR 19 has brought violence against women, including domestic violence, into the scope of the Convention. As a result, violence against women has become an issue of growing importance in the Committee’s jurisprudence. Indeed, in a number of individual complaints, the Committee found violations of states parties to prevent and respond to violence against women and used the opportunity to further specify the respective obligations under the Convention. This development is particularly interesting, given the fact that the actual Convention did not mention violence; it demonstrates the dynamic nature of human rights which are not static, but evolve over time, reflecting cultural and social developments.
*This article was originally posted in a longer format here: http://www.wave-network.org/sites/default/files/Fempower23_engl_150713_WEB.pdf
Angelika Kartusch is an expert in women‘s human rights, trafficking in women and violence against women, with longstanding experience in research, training and project coordination. She has worked with several non-governmental and international organizations. In 2012, Angelika joined WAVE (Women against Violence Europe) as the manager of the project “Strengthening Health System Responses to Gender-based Violence in Eastern Europe and Central Asia” implemented in partnership with UNFPA.