Gender-Based Violence

Definition

The United Nations Declaration on the Elimination of Violence against Women was the first international human rights instrument to deal exclusively with gender-based violence (GBV).  Although non-binding on countries, the Declaration uniformly defines GBV as "any act. . . that results in, or is likely to result in, physical, sexual or psychological harm or suffering to women, including threats of such acts, coercion or arbitrary deprivations of liberty, whether occurring in public or private life."  Another international consensus statement, the Platform of Action from the 1995 Fourth World Conference on Women (Beijing), explains that GBV includes physical, sexual and psychological violence occurring in the family or within the general community, including battering; sexual abuse of female children; dowry-related violence; marital and non-marital rape; traditional practices harmful to women; sexual harassment and intimidation at work, in educational institutions and elsewhere; trafficking in women; and forced prostitution.  Physical, sexual and psychological violence perpetrated or condoned by the State is also GBV.

The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) is a treaty that requires countries to prevent and prohibit GBV.  Although the Convention itself does not specifically address violence against women, the Convention?s monitoring body, the Committee on the Elimination of Discrimination Against Women, has stated that GBV is gender-based discrimination prohibited by the Convention.  The Committee?s General Recommendation (GR) 19 specifies that GBV is violence that is directed against a woman because she is a woman or that affects women disproportionately.  GR 19 cautions States Parties to take all appropriate measures to eliminate gender-based violence, especially in the home.

Links to Reproductive Health

GBV places in jeopardy women?s lives by putting them at risk of sickness or death from physical and mental trauma.  GBV often involves unprotected sex that is coerced through force or the threat of violence.  Women suffering GBV are thus also exposed to sexually transmitted infections, including HIV/AIDS, and unwanted pregnancy.

Human Rights Implicated

Impairing their health and lives, GBV obviously nullifies women?s human right to life and right to health.  Other human rights violated by GBV include the following:

• Right to non-discrimination ? GBV is the most extreme sort of discrimination against women: violence directed at women because of their sex.  GBV is calculated to and has the effect of perpetuating male domination over women.
• Right to equal protection under the law ? when GBV is not prosecuted or prevented, the law fails to ensure the safety and security of women, even though this right may be protected for men.  A law enacted for all of society thus treats men and women differently and is less concerned about violence against women than violence against men.
• Right to just and favorable work conditions ? GBV does not only occur in intimate relationships in the home; it also includes sexual harassment and discrimination on the job.

Relevant Human Rights Documents

A country that sanctions, permits, or does not deter GBV violates international human rights treaties the country has ratified.  Such treaties could include CEDAW (mentioned above); The International Covenant on Civil and Political Rights; and The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.  These three treaties have been signed by most countries and have bodies that review countries? compliance with their treaty obligations. 

The Beijing Platform of Action provides countries direction in how to comply with human rights treaties addressing GBV.  Beijing noted ?violence against women? as one of its areas of critical concern and, in Section D, elaborated several guidelines to eliminate and prevent gender-based violence.

Key Human Rights Arguments You Could Use

Under international human rights law, states are required not only to avoid violating human rights, but also to prevent and respond to human rights abuses.  This concept of state responsibility also obligates countries to prevent and punish rights violations by private actors.  The following three doctrines must be considered when dealing with violence against women by private actors:[1]

• Due Diligence

Advocates should call for countries? due diligence in investigating and punishing acts of violence; the existence of a national legal system criminalizing and providing sanctions for GBV is not sufficient.[2]  States must ?pursue by all appropriate means and without delay a policy of eliminating violence against women? and ?exercise due diligence to prevent, investigate and, in accordance with national legislation, punish acts of violence against women, whether those acts are perpetrated by the State or by private persons.?[3]  Victims of gender-based violence must also be assured adequate compensation from their abusers.[4]  In GR 19, the Committee for Elimination of All Forms of Discrimination Against Women (the CEDAW treaty body) recommends measures states should take to provide effective protection of women against violence.  Similarly, The Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women (or the Convention of Belem do Para) provides State Parties a detailed list of duties to prevent and punish GBV.

• Equal protection of the law

If a country?s law enforcement discriminates against the victims in cases involving violence against women, then advocates may ask an international treaty body or court to hold the State liable for violating international human rights standards of equality.  CEDAW requires State parties to ?pursue by all appropriate means and without delay a policy of eliminating discrimination against women.?[5]  This obligation includes a duty to ?refrain from engaging in any act or practice of discrimination against women and to ensure that public authorities and institutions shall act in conformity with this obligation? and ?to take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices which constitute discrimination against women.?

• GBV as torture

Depending on the severity and the circumstances, GBV can constitute torture or cruel, inhuman and degrading treatment or punishment actionable under human rights treaties such as The International Covenant on Civil and Political Rights, and The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT).  Some GBV involves the four critical elements that constitute torture: (a) it causes severe physical and or mental pain, it is (b) intentionally inflicted, (c) for specified purposes and (d) with some form of official involvement, whether active or passive.  Rape, for example, is a form of torture, and courts have required used CAT to require countries to prevent and punish rape.

Legal Remedies You Could Try

Subjecting a country to international scrutiny is an effective way of pressing a country to modify laws and policies that permit human rights abuse.  The international legal system offers advocates several ways to address GBV in their own countries.

• The United Nations Special Rapporteur on Violence against Women analyzes and documents incidents of gender-based violence and reports her findings to the U.N. Commission on Human Rights.  The Special Rapporteur may receive and request information from Governments, organizations, and individuals on violence against women and can initiate relevant investigations.

• Under the 1999 Optional Protocol to CEDAW, the treaty?s monitoring Committee may receive and consider complaints from individuals or groups from a State Party.  The Committee can then conduct confidential investigations and issue urgent requests for a government to take action to protect victims from harm and to comply with CEDAW.

• The Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women also permits individuals and groups from ratifying countries to submit complaints regarding State inaction to protect women from violence.  The Inter-American Commission on Human Rights receives these complaints and monitors treaty compliance.