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The International Legal Framework
International law and policy on domestic violence has developed
in the United Nations and
in regional organizations such as the Council
of Europe, and is in the process of being developed in the
European
Union. The recognition that domestic violence is a human rights
violation under international law required decades of work by
activists around the world. Now, international legal instruments
and policy statements make clear that states have a duty under
international law to prevent domestic violence and punish domestic
violence offenders.
Contents:
The United Nations
State Responsibility for Private Acts of Violence
The United Nations
Treaties and Conventions
Early human rights law enacted by the United Nations is relevant to
domestic violence. The International
Bill of Human Rights consists of The Universal Declaration
of Human Rights, adopted by the United Nations General Assembly in
1948, and its implementing covenants, the International Covenant on
Civil and Political Rights (ICCPR) and the International Covenant on
Economic, Social and Cultural Rights (ICESCR), which entered into force
in 1976. While these documents do not explicitly address domestic violence,
they, along with the Optional Protocol to the ICCPR, articulate a state’s
duty to protect fundamental human rights that are commonly violated
in domestic violence cases. Those rights include the right to life,
the right to physical and mental integrity, the right to equal protection
of the laws and the right to be free from discrimination.
The Convention
on the Elimination of All Forms of Discrimination Against Women, entered into force in 1981, also does not explicitly
include language
on violence against women or domestic violence but guarantees the human
rights listed above. In 1992, the Committee on the Elimination of All
Forms of Discrimination Against Women (CEDAW), which is the United
Nations committee charged with monitoring the Convention, adopted General
Recommendation Number 19. General
Recommendation No. 19, Committee on the Elimination of Discrimination
Against Women, U.N. Doc A/47/38
(1992). This recommendation
addresses the Women’s Convention’s silence on violence
and states that gender-based violence is a “form of discrimination
which seriously inhibits women’s ability to enjoy rights and
freedoms on a basis of equality with men.” This recommendation
was the first time a human rights treaty or convention was officially
interpreted to prohibit violence against women. The recommendation
made clear that domestic violence was included.
United Nations’ Conference Documents
United Nations conference documents address the issue of domestic
violence. They are widely recognized as consensus documents—that
is, documents that reflect an international consensus on the state
of international law. While not legally enforceable, they are, as one
writer states, “signposts of the direction in which international
human rights law is developing and should influence states that have
accepted a commitment of progressive development toward enhanced respect
for human rights in their international conduct and domestic law.” Rebecca
J. Cook, The Elimination of Sexual Apartheid: Prospects for the Fourth
World Conference on Women 29 (1995).
The Report of the World Conference of the United Nations Decade for
Women: Equality, Development and Peace, Copenhagen, July 1980, U.N.
Doc A/CONF.94/35 (80.IV.30), was the first time domestic violence was
explicitly mentioned in an official document of the United Nations.
Domestic violence is referred to several times in the document. The
Legislative Measures section states:
Legislation should also be enacted and implemented in order to prevent
domestic and sexual violence against women. All appropriate measures,
including legislative ones, should be taken to allow victims to be
fairly treated in all criminal procedures.
At the 1985 Third World Conference on Women in Nairobi, Kenya, domestic
violence received significant attention. The final conference report
called on governments to “undertake effective measures, including
mobilizing community resources to identify, prevent and eliminate all
violence, including family violence, against women and to provide shelter,
support and reorientation services for abused women and children.” Report
of the World Conference to Review and Appraise the Achievements of
the United Nations Decade for Women: Equality, Development and Peace,
held in Nairobi, July 1985, including Nairobi Forward-Looking Strategies
for the Advancement of Women, U.N. Doc. A/CONF.116/28Rev.1 (85.IV.10).
The final conference document from Second World Conference on Human
Rights, held in Vienna in June 1993, was the Vienna
Declaration and Programme of Action
(A/CONF.157/23), 12 July 1993. The Vienna Declaration stated:
In particular, the World Conference on Human Rights stresses the importance
of working towards the elimination of violence against women in the
public and private life . . . the elimination of gender bias in the
administration of justice and the eradication of any conflicts which
may arise between the rights of women and the harmful effects of certain
traditional or customary practices.
Violence against women, including domestic violence, was a major focus
at the 1995 Fourth World Conference on Women in Beijing, China.
The conference document, the Beijing
Platform for Action,
identifies domestic violence as a human rights violation. The
Platform states: “Violence against women both violates and impairs or
nullifies the enjoyment by women of their human rights and fundamental
freedoms.” It addresses violence against women as a separate “Critical
Area of Concern” and includes it under the “Human Rights” section.
The Beijing Platform outlines many specific actions governments, nongovernmental
groups and others should take to confront and combat violence against
women, including strengthening legal systems’ response to domestic
violence.
Five years later, at the United Nations’ conference, Beijing
plus 5: A Special Session on Women 2000: Gender Equality, Development
and Peace for the Twenty-First Century, the final
document detailed
obstacles for women and included domestic violence. The language
of the document is strong and very specific:
14. Obstacles. Women continue to be victims of various
forms of violence. Inadequate understanding of the root causes of all
forms of violence
against women and girls hinders efforts to eliminate violence
against women and girls. There is a lack of comprehensive programs
dealing
with the perpetrators, including programs, where appropriate,
which would enable them to solve problems without violence. Inadequate
data
on violence further impedes informed policy-making and analysis.
Sociocultural attitudes which are discriminatory and economic inequalities
reinforce
women’s subordinate place in society. This makes women
and girls vulnerable to many forms of violence, such as physical,
sexual and
psychological violence occurring in the family, including
battering, sexual abuse of female children in the household,
dowry-related violence,
marital rape, female genital mutilation and other traditional
practices harmful to women, non-spousal violence and violence
related to exploitation.
In many countries, a coordinated multidisciplinary approach
to responding to violence which includes the health system,
workplaces, the media,
the education system, as well as the justice system, is still
limited. Domestic violence, including sexual violence in
marriage, is still
treated as a private matter in some countries. Insufficient
awareness of the consequences of domestic violence, how to
prevent it and the
rights of victims still exists. Although improving, the legal
and legislative measures, especially in the criminal justice
area, to eliminate different
forms of violence against women and children, including domestic
violence and child pornography, are weak in many countries.
Prevention strategies
also remain fragmented and reactive and there is a lack of
programs on these issues . . . .
69. (a) As a matter of priority, review and revise legislation, were
appropriate, with a view to introducing effective legislation, including
on violence against women, and take other necessary measures to ensure
that all women and girls are protected against all forms of physical,
psychological and sexual violence, and are provided recourse to justice;
(b) Prosecute the perpetrators of all forms of violence
against women and girls and sentence them appropriately, and introduce
actions aimed
at helping and motivating perpetrators to break the cycle of
violence and take measures to provide avenues for redress to victims;
(c)
Treat all forms of violence against women and girls of all ages
as a criminal offence punishable by law, including violence
based on all forms of discrimination;
(d) Establish legislation and/or strengthen appropriate mechanisms
to handle criminal matters relating to all forms of domestic violence,
including marital rape and sexual abuse of women and girls, and ensure
that such cases are brought to justice swiftly . . .
Other United Nations conference documents address the issue of domestic
violence. The Programme
of Action
from the 1994 International Conference on Population and Development
(ICPD) in Cairo, Egypt, articulates the need for government
attention to all forms of violence against women. This need was emphasized
again
in the “Cairo plus 5” document, the Programme
for Action, from the second International
Conference on Population and Development (ICPD) in 1999. The Copenhagen
Declaration on Social Development
from the 1995 World Summit for Social Development in Copenhagen
also
calls on governments to take effective measures to combat and
eliminate all forms of violence against women.
The Durban
Declaration and Program of Action from the 2001 World Conference against Racism, Racial Discrimination,
Xenophobia and Related Intolerance in Durban, recognizes that
the intersection of gender and race, ethnicity or other status can
make women particularly
vulnerable to certain kinds of violence and calls on governments “[t]o
consider adopting and implementing immigration policies and programs
that would enable immigrants, in particular women and children who
are victims of spousal or domestic violence, to free themselves from
abusive relationships.”
The Declaration on the Elimination of Violence
Against Women
In 1993, the United Nations General Assembly adopted the Declaration
on the Elimination of Violence Against Women
(DEVAW). This landmark document was a result of efforts within
the United Nations Commission on the Status of Women (CSW) and the
Economic
and Social Council (ECOSOC). While DEVAW does not have the
binding legal authority of a convention or treaty, as a United Nations
General
Assembly declaration, it is universal in coverage and a strong
statement of principle to the international community. Identifying
the subordination
of women as a principle cause of domestic violence, DEVAW states, “violence
against women is a manifestation of historically unequal power relations
between men and women, which have led to domination over and discrimination
against women by men.” DEVAW condemns the crucial social mechanisms
by which women are forced into a subordinate position as compared with
men” and defines violence as that occurring both in “private
or public life.” Importantly, DEVAW provides specific steps member
states should take to combat domestic violence, including legal system
reform. DEVAW provides that states should investigate and punish acts
of domestic violence, develop comprehensive legal, political, administrative
and cultural programs to prevent violence against women, provide training
to law enforcement officials and promote research and collect statistics
relating to the prevalence of domestic violence.
The Special Rapporteur on Violence Against Women
In 1994, the Commission on Human Rights appointed Radhika Coomaraswamy,
from Sri Lanka, to the position of Special
Rapporteur on Violence Against Women, Including Its Causes
and Consequences. The mandate of the Special Rapporteur
as articulated by the Commission is to “see and receive information
on violence against women, its causes and consequences, from Governments,
treaty bodies, specialized agencies and other special rapporteurs .
. . [and] recommend measures, ways and means, at the national, regional
and international level to eliminate violence against women and its
causes, and to remedy its consequences . . . .” U.N.C.H.R. Res.
1994/45 (ESCOR 1994), paras. 6 and 7. Rapporteurs are seen as one of
the most effective tools within the United Nations to monitor human
rights violations. Since taking office in 1994, Ms. Coomaraswamy has
issued 28 reports (as of February 2003) on violence against women.
The reports focus on many different forms of violence, in many different
countries and many include references to domestic violence.
In 1996, Ms. Coomaraswamy’s reports addressed domestic violence
at length and included model
legislation
on domestic violence. The model legislation includes a definition
of domestic violence, a declaration of purpose and both civil and
criminal
provisions. It is discussed further below in the Model Legislation
section.
Ms. Coomaraswamy’s 2001 report to the Preparatory Committee
for the 2001 World Conference against Racism, Racial Discrimination,
Xenophobia and Related Intolerance in Durban, Racial
Discrimination, Xenophobia and Related Intolerance on the subject
of race,
gender and violence against women
(A/CONF.189/PC.3/5), 27 July 2001, describes some of the ways
in which race, gender and violence against women intersect and emphasizes
that
battered women who belong to marginalized groups often confront
additional obstacles, such as language barriers or cultural insensitivity,
to
protecting themselves from violence.
Links to the Special Rapporteur’s reports on violence against
women are available under the Domestic
Violence: Research and Reports section of this website.
State Responsibility for Private Acts of Violence
One of the most significant obstacles to overcome in the effort to
define domestic violence as a human rights violation was the traditional
view that international law is applicable only to governments and their
representatives, but not to private actors as in the case of intimate
partner assault. In fact, even before the United Nations and other
institutions explicitly named domestic violence as a human rights violation,
there was significant authority that states have a duty to protect
individuals from offenses by private actors. When the International
Covenant on Civil and Political Rights was drafted, it was contemplated
that governments had a duty to protect individuals from violations
by private citizens. The Human Rights Committee of the United Nations,
the European Commission of Human Rights and the European Court of Human
Rights have concurred with this view. From Andrew Byrnes, Women,
Feminism and International Human Rights Law—Methodological Myopia,
Fundamental Flaws or Meaningful Marginalisation?,
12 Austl. Y.B. Int’l Law 205 (1992).
Case law interpreting international and regional human rights law
also supported this position. In the Velasquez Rodriguez Case, Inter-American
Court of Human Rights, Ser. C, No. 4, Judgment of 29 July 1988, 1989
28 ILM 291, for example, the Inter-American Court of Human Rights held
that Honduras was required to “take reasonable steps to prevent
human rights violations and to use the means at its disposal to carry
out a serious investigation of violations committed within [its] jurisdiction,
to identify those response, to impose the appropriate punishment and
to ensure the victim adequate compensation.” Other cases supporting
this position include the Case of Plattform Arzte fuer das Leben v.
Austria, Judgment of 21 June 1988, Ser. A, No. 139, 32, 13 EHRR 204;
and X and Y v. Netherlands, Judgment of 26 March 1985, Ser. A, No.
91, 23, 8 EHRR 235, 81 ILR 103.
This human rights law dictates that, although one act of domestic
violence may not invoke the protections of international law, a state’s
institutionalized inaction in the face of a pervasive domestic violence
problem violates its international obligations. From Kenneth Roth,
Domestic Violence as an International Human Rights Issue, in Human
Rights of Women 326 (Rebecca Cook ed.,1994); Dorothy Q. Thomas & Michele
E. Beasley, Domestic Violence as a Human Rights Issue, Hum. Rts. Q.
15 (1993). In addition, a state may violate its international legal
obligations if it applies its laws in a discriminatory fashion, giving
more attention and resources to crimes other than domestic violence.
However, Joan Fitzpatrick, in her article, The Use of International
Human Rights Norms to Combat Violence Against Women, in Human Rights
of Women 532, 539 (Rebecca Cook ed., 1994), makes the important point
that an equal treatment approach for battered women leaves important
issues unaddressed. She emphasizes that domestic violence survivors “operate
under pressures not felt by other crime victims.” They may not
be able to sever ties to their assailants in a way that accommodates
the application of general criminal laws. Instead, domestic violence
survivors may require additional services to truly achieve equal treatment.
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