International human rights law

CHAPTER 2: INTERNATIONAL STANDARDS ON ENSURING JUSTICE FOR GBV SURVIVORS

Situations of crisis often have different and complex legal “regimes” concurrently applying at the same time. In times of conflict, for example, international human rights law operates alongside international humanitarian law, refugee law, international criminal law and the imperatives of the women, peace and security agenda.61 This is reaffirmed by the CEDAW Committee in its General Recommendation 30 on women in conflict prevention, conflict and post-conflict situations where it urges states to “give due consideration to the complementary protections for women and girls stemming from international humanitarian, refugee and criminal law, when implementing their obligations under the [Convention for the Elimination of All Forms of Discrimination against Women]”. 62

INTERNATIONAL HUMAN RIGHTS LAW

Women’s right to access to justice in response to GBV is a principle of international human rights law, which serves as a foundation for national laws and policies. The prohibition of GBV is based on the right to life and the right not to be subjected to torture and ill-treatment, therefore requiring the highest priority to be given to ensuring its enforcement. The prohibition of GBV in international human rights law is also guided by the principle of nondiscrimination and the need to protect the rights to personal integrity and to a dignified life.

UNDERSTANDING GBV AS A VIOLATION OF HUMAN RIGHTS AND A FORM OF DISCRIMINATION AGAINST WOMEN

While the prohibition of violence against women was not an integral part of recognized women’s rights at the 1979 adoption of CEDAW, today it is a core treaty obligation, with most governments around the world adopting measures to address the problem. This change has taken place due to decades of transnational women’s mobilization. Placing violence against women on the global human rights agenda is indeed one of the most impressive successes of the international women’s rights movement over the last half a century.63

Within the United Nations Decade for Women (1975–1985), a process of “transnational consensus building” had been unfolding around the sweeping agreement that “gender equality is the optimum approach to protecting women from violence”.64 In that important period for women’s rights, CEDAW was adopted (1979), informed by ideas about women’s status that had been developed earlier, in the 1950s, 1960s and 1970s.65 Despite the fact that CEDAW is a women’s human rights treaty promoting gender equality

and non-discrimination, it does not refer to violence against women explicitly. By the end of the United Nations Decade for Women, however, a movement to name violence against women had gained momentum around the world, starting from the Global South. The Nairobi Forward-looking Strategies (1985), which assessed progress made in the Decade and set out the directions ahead, made extensive references to violence against women.66

In the 1990s, the notion of violence against women as a form of subordination and discrimination found powerful expression in a body of “soft law” epitomized by the 1992 General Recommendation 19 of the CEDAW Committee and the 1993 United Nations General Assembly Declaration on the Elimination of Violence against Women. General Recommendation 19 defined GBV as a form of discrimination against women and triggered the application of a resolutely human rights connotation to violence against women in international documents. According to this General Recommendation, “GBV is violence committed against a woman because she is a woman or that affects women disproportionately”.67

General Recommendation 19 of the CEDAW Committee was followed by the United Nations General Assembly Declaration on the Elimination of Violence against Women in 1993, which at the time was considered “one of the most significant efforts to combat violence against women”.68 While CEDAW General Recommendation 19 and the United Nations General Assembly Declaration were both legally non-binding documents, the former carried significant legitimacy as authoritative interpretation of CEDAW, and the latter as a policy statement that expressed the collective agreement of the Member States of the United Nations. The language in these two documents significantly informed the formulation of the theories, objectives and concrete measures that United Nations Member States and international human rights bodies integrated in their agenda, also in response to growing advocacy from the global women’s movement.69

The new understanding of violence against women as a human rights violation was crystallized by the appointment by the United Nations Human Rights Council (formerly the Human Rights Commission) of a Special Rapporteur on violence against women, its causes and consequences in its resolution 1994/45.

The 1990s and 2000s saw a dramatic expansion of the movement against GBV, through global conferences, United Nations declarations, and international non-governmental organization (NGO) activism. Significant distance was covered by defining violence against women as a human rights violation. Yet, the new understanding was enshrined in a body of “soft law” mainly originating from the reinterpretation of CEDAW through General Recommendation 19. The absence of an explicit treaty right against violence against women is considered by some as an important gap in international human rights treaty law.70 This gap was subsequently filled by several regional treaties.