Domestic Violence, Health, and International Law

DOMESTIC VIOLENCE, HEALTH, AND INTERNATIONAL LAW
Bonita Meyersfeld INTRODUCTION

Worldwide, one in three women has been beaten, coerced into unwanted sexual relations, or abusedoften by a family member or acquaintance. At the start of the 21st century, violence kills and harms as many women and girls between the ages of 15 and 44 as cancer. The costs to countriesin increased health care expenditures, demands on courts, police and schools and losses in educational achievement and productivityare enormous. In the United States, the figure adds up to some $12.6 billion each year.
United Nations Population Fund1 Violence against women causes more death and disability among women aged fifteen to forty-four than cancer, malaria, traffic accidents, and war.2
LL.B. (Wits); LL.M; J.S.D. (Yale); parliamentary legal advisor, House of Lords, U.K. The author is grateful for the assistance of Charles Michael Young, who read several drafts of the Article and whose intellectual integrity is a constant guide. The author is also grateful to Johan Van der Vyver, who organized the World Law and World Health Conference at the World Law Institute, where this Article was first presented, and Vivek Patel and Laura Huffman of the Emory International Law Review for their hard work. All errors are the authors own. 1 UNFPA, STATE OF WORLD POPULATION 2005, THE PROMISE OF EQUALITY: GENDER EQUITY, REPRODUCTIVE HEALTH, AND THE MILLENIUM DEVELOPMENT GOALS 5 (2005) [hereinafter UNFPA]. 2 HUMAN RIGHTS WATCH, WORLD REPORT 2000: WOMENS HUMAN RIGHTS, http://www.hrw.org/wr2k/ Wrd.htm#TopOfPage (The World Health Organization asserted that violence against women causes more death and disability among women aged fifteen to forty-four than cancer, malaria, traffic accidents, and war. . . . In Kenya, for example, the U.N. estimated that 42 percent of women were battered by husbands or partners. Kenyan laws do not specifically criminalize domestic violence, and offenders were seldom punished. In Pakistan, estimates of spousal abuse ranged as high as 90 percent of all married women. Despite occasional signs of progress[,] . . . everyday violence and discrimination against women remained among the most flagrant and overlooked of human rights abuses.). See also CARIN BENNINGER-BUDEL, VIOLENCE AGAINST WOMEN: FOR THE PROTECTION AND PROMOTION OF THE HUMAN RIGHTS OF WOMEN (10 REPORTS/YEAR 2000) 123 (2000) (identifying the three levels at which law may contribute to the oppression of women, namely the substantive level, the substance of the laws themselves; a structural level, the structures and organizations that
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More than half the worlds women experience violence in intimate relationships. The violence is severe, debilitating, and deadly. The acts of violence are extreme and the reaction of state institutions, such as the police, courts, and legislatures, often is disproportionate. And it is a problem in every country in the world. Why do women all over the world suffer the same type of violence at the hands of their intimate partners and endure the same feelings of helplessness and isolation when looking to the state for protection? Why does it continue, in the same form, with the same degree of pain, without respite? And if the same harm occurs over and over again, consistent through generations and uniform across borders, why then has the international community not yet developed effective means to address it? There are two reasons. The first is the vulnerability women experience as a result of institutionalized discrimination. The second is due to a misunderstanding of how domestic violence manifests itself. Some forms of domestic violence are so severe that, if left unattended, they result in death. These are two of several factors which have escalated domestic violence into a global pandemic. In this Article, I provide a legal analysis to substantiate the thesis that extreme and systemic forms of domestic violence are a human rights violation for which states are responsible. According to the principles of state responsibility, if a state fails to assist a vulnerable group from harm, it commits an internationally wrongful act through its repeated omission to protect. Domestic violence is the most common form of violence perpetrated against women and one of the major international health risks for women; women suffer domestic violence and its attendant consequences of poor health more than any other group.3 If such violence is universal, then so too should
enforce the law; and the cultural level, the culture and beliefs that inform society and its law makers and enforcers). 3 See, e.g., U.N. Econ. & Soc. Council, Commn on Human Rights, Report of the Special Rapporteur on Violence Against Women, Its Causes and Consequences, 5663, U.N. Doc. E/CN.4/1996/53 (Feb. 5, 1996) (prepared by Radhika Coomaraswamy, in accordance with Commission on Human Rights resolution 1995/85) [hereinafter Report of the Special Rapporteur on Violence Against Women]. Coomaraswamy maintains that all states have an international obligation to prevent domestic violence. Id. 40. See also HUMAN RIGHTS WATCH, WORLD REPORT 2002: WOMENS HUMAN RIGHTS, http://www.hrw.org/wr2k2/women.html# Violence%20Against%20Women; MARIJKE VELZEBOER ET AL., VIOLENCE AGAINST WOMEN: THE HEALTH SECTOR RESPONDS xi (2003). The global dimensions of this violence are alarming, as highlighted by studies on its incidence and prevalence. No society can claim to be free of such violence, the only variation is in the patterns and trends that exist in countries and regions. . . . [D]omestic violence [is] the most prevalent yet
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be the solution, at least in part. For this reason, I turn to world law as part of the legal approach to domestic violence. While law is only one tool in an array of necessary mechanisms (such as health, economics, and politics), I propose that international law, if properly combined with these other mechanisms, can help alleviate the pain and difficulties experienced by many victims of domestic violence. International law specifically is not engineered to change peoples behavior, and I do not propose that it will. The institution of international law will not stay the fist of a violent partner. However, international law is constructed to change the way states and communities respond to violent behavior, the way we react to a breach of rules, and, most importantly, the way we listen to a persons pain. There is an important caveat. Historically, the enforcement of so-called civil and political rights (e.g., the right to vote, freedom of speech, and the right to privacy) has fared better than that of social, cultural, and economic rights (such as the right to education, housing, and health). It seems that forcing the state to abstain from invasive behavior is more successful than insisting on proactive social and economic policies. Placing violence against women under the rubric of socio-economic rights arguably places a weaker obligation on states to protect women than identifying the violence as a violation of civil and political rights. While it is true that the economic and social abjection of women perpetuates gender-based violence, it is necessary to maintain an equal emphasis on the civil, political, social, and economic components of domestic violence. This Article: (i) demonstrates that domestic violence is a gendered problem; (ii) identifies the seriousness of domestic violence as a health epidemic and demonstrates that it is a human rights violation; (iii) argues that there is a growing norm in international law to be free from extreme and systemic forms of domestic violence; (iv) argues for a concomitant state obligation to mitigate its effects; and (v) proposes that international law is beneficial to improving state and non-state remedies to this health hazard,
relatively hidden and ignored form of violence against women and girls. UNICEF, Domestic Violence Against Women and Girls, 6 INNOCENTI DIGEST, June 2000, at 2, available at http://www.uniceficdc.org/publications/pdf/digest6e.pdf [hereinafter UNICEF, Domestic Violence]. In Japan, 58.7% of [women] reported physical abuse by a partner and 59.4% reported sexual abuse. . . . [I]n the Kissi district of Kenya, 42% of women said they had been beaten by their husbands; in Papua New Guinea, 67% of rural women and 56% of urban women had been victims of wife abuse. HUMAN RIGHTS WATCH WOMANS RIGHTS PROJECT, HUMAN RIGHTS WATCH GLOBAL REPORT ON WOMENS HUMAN RIGHTS 341 n.1 (Sarah Lai & Regan Ralph eds., 1995). A U.N. international survey estimates that in each country, twenty to fifty percent of women suffer domestic violence. See generally UNFPA, supra note 1.
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referencing the development of domestic violence legislation in Mexico, Nicaragua, and Sweden. I do not maintain that international law has the same force as a states national laws.4 Nor do I propose that international human rights law is an additional body of law with which states must comply. Rather, I turn to international law as an institution designed to induce and guide states to remedy the deficiencies within their domestic legal systems.5 I. IS THIS PANDEMIC A GENDERED HEALTH PROBLEM? Before discussing the interconnectedness of international law and domestic violence, it is necessary to explain why this discussion revolves around domestic violence against women as opposed to other victims of intimate violence. While children, men, the elderly, the disabled, and non-human animals suffer from such harm, I have not included them within this analysis because it is the coalescence of violence and gender-discrimination that occupies this discussion.6 I seek to explain the absence of effective legislation against domestic violence with reference to sex and gender discrimination, highlighting the role gender plays in the etiology of domestic violence.7 As such, I acknowledge but do not focus on the numerous other groups that suffer
Oona Hathaway, Do Human Rights Treaties Make a Difference?, 111 YALE L.J. 1935, 1938 (2002). LOUIS HENKIN, THE AGE OF RIGHTS 17 (1990). 6 See MARYLAND INST. FOR CONTINUING PROFL EDUC. OF LAWYERS, INC., DOMESTIC VIOLENCE CASES: HANDLING THEM EFFECTIVELY IN CIRCUIT AND DISTRICT COURT 56 (2001). While the plight of children who suffer indescribable harm remains a reality, the discussion falls outside the purview of this article. There is no doubt that domestic violence includes violence by women against men. The statistics most likely are underreported, perhaps even more so than those of violence against women, since the stigma of assault by women of men is certainly charged and will dissuade reporting to the police. For a discussion of the way in which male-on-female violence differs from female-on-male violence, see Michael P. Johnson, Patriarchal Terrorism and Common Couple Violence: Two Forms of Violence Against Women, 57 J. MARRIAGE & FAM. 283, 28586 (1995) (explaining that statistics obtained in general national surveys differ dramatically from those obtained from shelter populations). As Johnson explains the distinction:
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[T]he two information sources deal with nearly nonoverlapping phenomena. The common couple violence that is assessed by the large-scale random survey methodology is in fact gender balanced, and is a product of a violence-prone culture and the privatized setting of most U.S. households. The patriarchal terrorism that is tapped in research with the families encountered by public agencies is a pattern perpetrated almost exclusively by men, and rooted deeply in the patriarchal traditions of the Western family. Id. This leads to the inescapable and alarming conclusion that [d]omestic violence is not gender-neutral. Rhonda Copelon, Intimate Terror: Understanding Domestic Violence as Torture, in HUMAN RIGHTS OF WOMEN: NATIONAL AND INTERNATIONAL PERSPECTIVES 116, 120 (Rebecca J. Cook ed., 1994). 7 ELIZABETH M. SCHNEIDER, BATTERED WOMEN & FEMINIST LAWMAKING 25 (2000) (citing Russell P. Dobash et al., The Myth of Sexual Symmetry in Marital Violence, 39 SOC. PROBLEMS 71, 9596 (1992)).
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similar forms of abuse.8 While I emphasize the mooring of domestic violence in its historical roots of gender subordination and feminist activism, I do not dismiss or trivialize other forms of violence.9 They simply fall outside the narrow purview of this discussion. Domestic violence is neither harmless nor gender-neutral.10 Intimate violence against women is not a case-by-case peculiarity. In many ways, it is a manifestation of social views, perceptions, priorities, and custom.11 The societal system of explicit and implicit gender discrimination in most states makes women particularly vulnerable to violence; while this vulnerability ought to trigger greater state assistance, there is a flailing legal system and, all too often, abandonment.12 Women suffer domestic violence and are unable to escape it, in part because of this gender-based differentiation.13 The distinction between the
8 SCHNEIDER, supra note 7, at 7071 (noting that elder abuse is vastly underreported). For a discussion of worldwide elder abuse, see WORLD HEALTH ORGANIZATION, WORLD REPORT ON VIOLENCE AND HEALTH 12545 (Etienne G. Krug et al. eds., 2002) [hereinafter WORLD REPORT ON VIOLENCE AND HEALTH]. 9 SCHNEIDER, supra note 7, at 28. Some academics have denounced this connection, arguing that [o]ne should not assume that a special explanation is required when men hit women. The study of violence against women belongs under the study of violence, not gender. RICHARD B. FELSON, VIOLENCE & GENDER REEXAMINED 4 (2002). 10 See supra note 3 and accompanying text. 11 Copelon, supra note 6, at 120 (noting that domestic violence is systemic and structural and built on . . . economic, social, and political predominance of men and dependency of women.). 12 See supra note 3. 13 SCHNEIDER, supra note 7. That women are sometimes violent in intimate relationships does not diminish the importance of discerning the role gender plays when considering the make-up of domestic violence. Id. For this reason, I refer to the abuser as male and the victim female. See Jennifer M. Mason, Note, Buying Time for Survivors of Domestic Violence: A Proposal for Implementing an Exception to Welfare Time Limits, 73 N.Y.U. L. REV. 621, 621 n.4 (1998) (using feminine pronouns to refer to survivors of domestic violence in recognition of the high incidence of violence against women). See also KRISTIN A. KELLY, DOMESTIC VIOLENCE AND THE POLITICS OF PRIVACY 165 n.1 (2003). Kelly provides two reasons for her decision to use the feminine pronoun to refer to victims and the masculine to designate perpetrators.
First, although it is true that women are sometimes the perpetrators of violence in the home, in both heterosexual and homosexual relationships, it remains the case that the vast majority of individuals who are seriously injured or killed by domestic violence are female. Second, the perpetration of domestic violence by men against women involves patterns of domination that are directly tied to the victims gendered status. Id. Harvey Wallace acknowledges that family violence against men exists, probably more than is imagined. However, he explains that he uses the female to denote the victim because the abuse visited on women is more severe and long-lasting than the type of abuse men suffer. Additionally, research has shown that men have far greater opportunities to leave the abusive situation than women. HARVEY WALLACE, FAMILY VIOLENCE: LEGAL, MEDICAL, AND SOCIAL PERSPECTIVES 180 (2005) (indicating that women have fewer capabilities to escape than men). The gendered dyad does not reflect a particular bias; rather, it simply
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public and the private sphere historically has correlated with the role differentiation between gendersthe public sphere has been male-dominated and women generally are expected to operate in the private sphere.14 Although gender differentiation may be denied in many legal systems today, the public/private distinction endures and informs our view of domestic violence cases after they have passed through the apparently neutral filtering process of law. In many ways, current state law regulating private affairs stems from a culture in which, for a host of reasons, the parity of male and female citizens is still to be realized. In other words, the perception of domestic violence and the types of laws created to address it are based on a number of bad habits.15 An adherence to law in its current form may constitute our deepest political myth,16 which allows us to ignore the invisible pattern of order in law,17 a pattern that facilitates a discord between legal and actual redress for many harmed women. This pattern of order is historically hierarchical, placing the empowered in positions to retain power and the disempowered in a correspondingly weak position.18 According to Professor Kahn, when embarking on an analysis of
reflects the statistical reality of domestic violence. Id. See Developments in the Law: Legal Responses to Domestic Violence, 106 HARV. L. REV. 1498, 1501 (1993) [hereinafter Legal Responses]. There are also studies that indicate that women are more than ten times as likely as men to be the victims of domestic violence. Id. In reality, the discrepancy may be narrower, as the reporting of domestic violence by men is undermined by the social stigma against male victims. 14 The role distinctions between men and women were linked to a separation between the public and private spheres in the past and this divide remains today. Judith Resnik points out that while [b]oundaries of role are . . . shifting, . . . [g]ender systems work through assumptions about the intelligibility of the categories of women and men, which in turn depend upon demarcations of the family from the market and of the private from the public. Judith Resnik, Categorical Federalism: Jurisdiction, Gender, and the Globe, 111 YALE L.J. 619, 62021 (2001). See also Susan B. Boyd, Challenging the Public/Private Divide: An Overview, in CHALLENGING THE PUBLIC/PRIVATE DIVIDE: FEMINISM, LAW, AND PUBLIC POLICY 3, 57, 9 (Susan B. Boyd ed., 1997). Boyd describes the various manifestations of the public/private dyad and refers to the example of the states failure to deal with mens violence against women in the private sphere of family relations that rests on a ratification of unequal power relations between men and women in heterosexual families. Id. at 10. 15 Often national laws are the result and reflection of a culture, an order, or a way of life. See Anthony V. Alfieri, Retrying Race, 101 MICH. L. REV. 1141, 1145 (2003). Race colors law, crime, and community. It shadows the performance of public and private roles. It shades the meaning of relationships. And it stains the operating norms of institutions. Id. I propose that the same infiltrating tendency exists with respect to gender. 16 PAUL W. KAHN, THE REIGN OF LAW: MARBURY V. MADISON AND THE CONSTRUCTION OF AMERICA xi (1997). 17 Bernhard Grossfeld & Edward J. Eberle, Patterns of Order in Comparative Law: Discovering and Decoding Invisible Powers, 38 TEX. INTL L.J. 291, 294 (2003) (maintaining that invisible phenomena that influence the path of law include a range of tangible, intangible, intuitional, or rational factors). 18 See generally id.
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legal doctrine, it is necessary to examin[e] . . . the rule of law as an expression of our political culture.19 If one is not an equal member of society, whether by express law or implied habits, one is not able to utilize the instruments of that society with full equality. The existence of gender discrimination, be it latent or patent, negatively affects the ability of women to engage public assistance.20 There is also a state resistance to regulating private matters, which stems in part from the difficulty in penetrating the private realm, which continues to be guarded by these invisible assumptions.21 In many societies, progressive legislation (where such exists) still meets the difficulties imposed by the division between private and public and the concomitant allocation of gendered roles to the two spheres.22 This compartmentalizing reflects a well-documented stratification that places women throughout the world in a weaker, more vulnerable position.23 It is tempting to discount this phenomenon as a characteristic of the past, an abandoned mode of living that exited societies when inclusive and transparent governance entered. However, true equality, meaningful choice, and a sophisticated equivalency between men and women do not exist, even in the most egalitarian of societies. This is evidenced by a decision in Sweden on November 3, 2003, where the Stockholm appeals court acquitted four men, who were accused of gang raping a woman for five hours, on the basis that the
KAHN, supra note 16, at xxi. See Sara Hlupekile Longue, Education for Womans Empowerment or Schooling for Womens Subordination?, in GENDER, EDUCATION, & TRAINING 19, 22 (Caroline Sweetman ed., 1998). 21 See generally Celina Romany, State Responsibility Goes Private: A Feminist Critique of the Public/Private Distinction in International Human Rights Law, in HUMAN RIGHTS OF WOMEN: NATIONAL AND INTERNATIONAL PERSPECTIVES 85, 99 (Rebecca J. Cook ed., 1994); Jo Dixon, The Nexus of Sex, Spousal Violence, and the State, 29 L. & SOCY REV. 359, 359 (1995) (demonstrating the silence of the social and legal system by quoting one courts sentiments on spousal violence: if no permanent injury has been inflicted, nor malice, cruelty, nor dangerous violence shown by the husband, it is better to draw the curtain, shut out the public gaze, and leave the parties to forgive and forget.). 22 Resnik, supra note 14, at 649 (indicating that in early federal family policy, [f]athers were identified as the primary wage earners; mothers were situated as caregivers.). Resnik also cites Ruth Bader Ginsburg and Deborah Jones Merritt who explain that for every one man who is illiterate around the world, two women are, and seventy percent of the worlds poor are women. Womens risk of violence, their poverty, and their high illiteracy rates relate to womens roles within families. Id. at 658. 23 See CATHARINE A. MACKINNON, SEX EQUALITY 2024, 8894 (1979). The notion that women and men are defined as gendered by their differences from one another, and the equation of womens so-called differences with inferiority or naturally lower status, has pervaded philosophy and law. . . . Gender in most societies has defined women as such in terms of differences, real and imagined, from menusually to womens detriment in resources, roles, respect, and rights. Id. at 20.
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victims prior sexual experiences led the men to believe that she was game for their sexual advances.24 On the basis that domestic violence is gendered, I now turn to discuss whether or not it is a human rights violation. II. IS EXTREME DOMESTIC VIOLENCE A HUMAN RIGHTS VIOLATION? A. Systemic Intimate Violence Not all forms of domestic violence are appropriate for regulation by international law. While it is uncomfortable to distinguish between degrees of violence, it would be wrong to hold a state liable for acts of domestic violence that are neither extreme nor systemic. However, at some point an unhappy relationship transmutes into action, which violates an individuals basic rights, freedom, humanity, and health. Where is that point? There are forms of violence that, on the one hand, are egregious and systemic and receive no state response. On the other hand, there is abuse that is intermittent and involves only minor and/or one-off incidents. I discuss the duty of states to react to the former only, that is, extreme and systemic forms of physical and non-physical cumulative violence. I refer to this type of violence as systemic intimate violence.25
24 See They Said, She Said in Swedish Rape Outrage, IOL, Nov. 5, 2003, http://www.iol.co.za/index. php?click_id=3&art_id=iol1068028343530S352&set_id=1. Judge Bengt Sjoegren responded to criticism of the decision:
Even if it would be very strange for a woman to want to subject herself to this kind of treatment, it is still not so abnormal that the men would have had to realize that. . . . Given the circumstances, we came to the conclusion that it was not clear that the men realized that the woman was in a helpless state. Acquittal in Swedish Gang Rape Trial Sparks Uproar, ClariNet (AFP), Nov. 5, 2003, http://quickstart.clari. net/qs_se/webnews/wed/ca/Qsweden-justice.Rz-q_DN5.html. 25 See Isabel Marcus, Reframing Domestic Violence: Terrorism in the Home, in THE PUBLIC NATURE OF PRIVATE VIOLENCE: THE DISCOVERY OF DOMESTIC ABUSE 11, 2627 (Martha A. Fineman & Roxanne Mykitiuk eds., 1994) (explaining that the word domestic in domestic violence causes state officials to trivialize the violence). There are many labels for this violence, including the traditional terms family violence, domestic violence, or violence at home. These labels portray the fact that the violence takes place between intimates but they do not reveal the systemic nature of the violence. A significant component of the harm emanates directly from the failure of states to provide appropriate resources and infrastructure to help remedy such violence, which is not evident in these labels. In addition, words such as family or domestic limit the violence spatially or fail to translate the real danger inherent in the harm. For example, the United States emergency number officials have a tendency to give a lower priority to calls labeled domestic violence. Id. Others have preferred a wider definition that includes a broad range of violence against women. See, e.g., VELZEBOER ET AL., supra note 3, at 4 (using the term gender-based violence as a reference to the
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Systemic intimate violence is repetitive emotional or physical harm, or the threat thereof, committed between intimates, which forms a continuum of violence from which the victim, due to her isolation and/or incapacitation, is unable to procure traditional legal assistance.26 It therefore has the following elements: (i) severe harm, physical or emotional or the threat thereof; (ii) the existence of an intimate relationship between adults; (iii) a continuum of violence; and (iv) the absence of effective state assistance. The combination of these factors creates a severe form of harm, which, in the face of impunity is endorsed by the state, resulting in its systemic nature. By analyzing the constitutive elements of systemic intimate violence, it becomes clear that it is a human rights violation. I now proceed to examine these elements. B. Severity Domestic violence comprises a spectrum of deterioration: there are instances where the violence causes temporary harm that is remediable and remedied. However, at the other end of the spectrum (which is the harm discussed in this article), the violence destabilizes the body, mind, and wellbeing of the victim. The manifestation of this disease includes, among other things, broken bones, perforated organs, depression and other mental ill-health, and death.27 C. Continuum The second main component of systemic intimate violence is a continuum of harm. While individual instances may not necessarily be alarming, acts of abuse may accumulate to create an impenetrable and debilitating cycle of harm.28 Often, a bout of violence may appear erratic or sublime in a vacuum,
broader range of acts that women and girls commonly suffer from intimate partners and family members, as well as individuals outside the family.). 26 This definition is based on a review of academic and legislative definitions from a variety of national jurisdictions, a methodology that was adopted during Furundija. Prosecutor v. Furundija, Case No. IT-9517/1-T, Judgment, 159164, 174, 186 (Dec. 10, 1998). 27 Amnesty Intl, Broken Bodies, Shattered Minds: Torture and Ill-treatment of Women, AI Index ACT 40/001/2001, Mar. 6, 2001, available at http://web.amnesty.org/library/Index/engact400012001 [hereinafter Broken Bodies, Shattered Minds] (documenting the worldwide torture of women, observing that states all around the world have allowed beatings, rape and other acts of torture to continue unchecked.). 28 See EVA LUNDGREN ET AL., CAPTURED QUEEN: MENS VIOLENCE AGAINST WOMEN IN EQUAL SWEDENA PREVALENCE STUDY 17 (Julia Mikaelsson & Geoffrey French trans., 2002) (discussing the notion of a continuum of violence, which is not to be construed as a method of creating hierarchies of more or less serious abuse.). The notion of a continuum of harm is necessary because it is difficult to determine the extent
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but if it is brought into the context of a continuum, it takes on a far more pernicious character.29 Systemic intimate violence is a part of a pattern, a notch on a sliding scale, a continuum, rather than an isolated and inexplicable incident.30 A state cannot reasonably be blamed for a single incident of violence that neither leaves any lasting physical or emotional damage nor creates a climate of fear. By contrast, where a victim suffers long-term systematic violence and the state fails to provide effective police intervention and basic shelters to
of the violence based on one incident alone. See Johnson, supra note 6, at 286 (describing the same difference between patriarchal terrorism and common couple violence, the former evidencing an escalation in frequency and intensity over time); SCHNEIDER, supra note 7, at 6566. See also Copelon, supra note 6, at 11633 (drawing a comparison between the physical and mental harm caused by domestic violence and the combination of physical and mental harm used in official torture). In Nicaragua, analysts identify a series of characteristics which define the experience of battering for women, and conceptualize violent relationships as an ongoing process of entrapment and diminished coping capacity. Mary Ellsberg et al., Candies in Hell: Womens Experience of Violence in Nicaragua, 51 SOC. SCI. & MED. 1595, 1596 (2000). 29 See LUNDGREN ET AL., supra note 28, at 17. The Captured Queen Report and Amnesty International Report on Intimate Violence in Sweden describe domestic violence as forming a continuum of harm, involving many stages and not a single episode. Id. (indicating that the continuum approach to gender-related violence views threats, violence and sexual abuse as actions impossible to isolate from one another; characteristically the boundaries between them are fluid and actions merge into one another); AMNESTY INTL, MENS VIOLENCE AGAINST WOMEN IN INTIMATE RELATIONSHIPS: AN ACCOUNT OF THE SITUATION IN SWEDEN 6 (2004), available at http://www2.amnesty.se/svaw.nsf/mvaw/$File/mvaw.pdf [hereinafter MENS VIOLENCE]. The demarcation lines between the different forms of violence are vague, and gender-based violence is often described as a continuum where men expose women to a continuous sequence of psychological, physical and sexual violations, such as controlling behaviour, threats, restriction of the freedom of movement, sexual harassment, battering, sexual violations and rape. Psychological assault often includes threats of physical and sexual violence. Sexual violations and rape often involve both physical and psychological violence. Physical abuse is often combined with threats and sexual violations or rape. Id. MENS VIOLENCE, supra note 29, at 6. Two years after the Captured Queen Report, Amnesty International conducted an investigation of domestic violence in Sweden. See id. This report also highlighted the nature of domestic violence as a continuum, indicating that the violence against women in abusive relationships is often recurrent and has almost always been preceded by a pattern of increasing dominance and control over the woman by the man. Id. See LUNDGREN ET AL., supra note 28, at 13. In an attempt to target domestic violence more precisely, Sweden appointed a committee to scrutinize all sex crime legislation [for the] protection for women and children exposed to violence. Id. This committee proposed the introduction of a new crime entitled Protection of Womens Integrity. Id. The objective of the legislation was to mitigate the effects of the normalization process and the impact of repeated violations on women subjected to them. Id. The legislation takes account of the changes which a woman gradually experiences while being subjected to violence. Id. It also takes the position that violations which may seem fairly minor when viewed separately have a grave negative effect on a woman when they are part of a process, thus meriting severe punishment. Id. This is reinforced in the punitive component of the legislation, which penalizes acts that, when viewed separately, are relatively minor but when repeated may lead to substantial violation of the victims integrity. Id.
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mitigate its consequences, the state reasonably can and should be held accountable for its failings. It is the repetition and the predictability of this violence that requires emphasis. How does the continuum operate? Emotional and physical harm may operate separately, but generally are combined to spin a web of abuse in which the exigency of violence escalates.31 Threats, physical harm, and sexual abuse are impossible to isolate from one another; characteristically the boundaries between them are fluid and actions merge into one another. 32 This is referred to as a cycle of abuse. Theorists first identified the so-called cycle of abuse as containing instances of violence, followed by apologies, gifts, and expressions of remorse.33 Slowly, the tension intensifies and rebuilds itself, first in the form of verbal denigration and ultimately in another episode of anger and physical violence.34 As the cycle repeats itself, the severity of the violence intensifies and there are fewer and shorter periods of remorse.35 The emotional stress caused by this cycle results in dependency, depression, sleeplessness, and symptoms of post-traumatic stress disorder. 36 The continual nature of systemic intimate violence has been recognized to varying degrees in the legislation of a number of jurisdictions. Mexico has
31 In Nicaragua, 94% of physically abused women reported that verbal abuse and insults usually accompanied the physical violence. Ellsberg et al., supra note 28, at 160001. The report indicated a significant overlap between physical and emotional violence, and 21% of ever-abused women reported all three kinds of abuse (i.e., physical, emotional, and sexual). Thirty-six percent of abused women reported that they were forced to have sex while being beaten. [P]hysical abuse is so often intertwined with acts of psychological and sexual degradation as to be virtually indistinguishable. Id. at 1602. Ninety-four percent of the abused women in Nicaragua reported that physical violence had been accompanied by verbal humiliation and control of daily activities. See WORLD ORGANIZATION AGAINST TORTURE [OMCT], VIOLENCE AGAINST WOMEN IN NICARAGUA: IMPLEMENTATION OF THE CONVENTION ON THE ELIMINATION OF ALL FORMS OF DISCRIMINATION AGAINST WOMEN BY NICARAGUA, 12 (2001), available at http://www.omct.org/pdf/VAW/ NicaraguaEng2001.pdf [hereinafter OMCT CEDAW REPORT ON NICARAGUA]. See also SCHNEIDER, supra note 7, at 6566; LUNDGREN ET AL., supra note 28, at 17 (describing the continuum of violence that enables us to see the linkages between its various forms, putting serious violence on the same scale as acts which are less serious, perhaps not criminalized, or even considered acceptable. The concept thus links together commonly used expressions of sexism and acts of criminal violence.). 32 LUNDGREN ET AL., supra note 28, at 17. 33 See id. (describing how actions which the law defines as minor may signify an explicit or implicit threat to an abused woman, i.e. that they are anything but minor to her.). 34 Id. at 4245. 35 Id. at 46. 36 Copelon, supra note 6, at 125 (noting that domestic violence often produces anxiety, depression, and sleeplessness. It can produce extreme states of dependency, debility, and dread as well as the same intense symptoms that comprise the post-traumatic stress disorders experienced by victims of official violence as well as by victims of rape.). Often, abused women find the psychological terror the most unbearable and will precipitate battering as opposed to enduring the fear. Id. at 124.
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defined domestic violence with reference to acts that are recurring, intentional, and cyclical.37 According to the South African Constitutional Court, domestic violence is distinguished from other crimes because of its hidden, repetitive character and its immeasurable ripple effects on our society and, in particular, on family life.38 In Sweden, legislation targets not only physical violence, but the full fabric of harm that results in the gross violation of a womans integrity. 39 D. Between Intimates The intimate context of the violence produces an almost visceral reaction that what happens within the boundaries of a home is venerable, impervious to the strictures of law and law enforcement. The opposite, however, is true. Encapsulated within the relationship, the recurrent violence becomes normalized, preventing both the abused from reporting the violence and the authorities from recognizing it.40 The intimacy complicates the victims understanding of the violence, her ability to escape it, and the approach of society to her experience.41 A further complication is the principle of privacy and the constitutional injunction against state interference with ones personal affairs. It is difficult
37 CENTER FOR REPRODUCTIVE LAW AND POLICY, WOMENS REPRODUCTIVE RIGHTS IN MEXICO: A SHADOW REPORT 23 (1997), available at http://www.crlp.org/pdf/sr_mex_1297_eng.pdf [hereinafter WOMENS REPRODUCTIVE RIGHTS IN MEXICO: A SHADOW REPORT] (citing Ley de asistencia y prevencion de la violencia intrafamiliar del distrito federal, D.O., July 9, 1996). In Mexico, the Law of Assistance and Prevention of Domestic Violence defines the violence as an act of power or omission that is recurring, intentional and cyclical, and is aimed at dominating, subordinating, controlling or harming any member of the family through physical, verbal, psycho-emotional, or sexual violence. Id. See also Ellsberg et al., supra note 28, at 1596. 38 State v. Godfrey Baloyi 2000 (1) BCLR 86 (CC) at 11 (S. Afr.). 39 See also LUNDGREN ET AL., supra note 28, at 13. 40 The victim may have become accustomed to the abuse, and through the process of normalization, she no longer is able to distinguish between acceptable and unacceptable behavior.
For the woman, the process of normalisation means . . . that her own limits gradually disappear and that the mans violence becomes a normal part of everyday life . . . her sense of reality is blurred and she starts seeing herself through the eyes of the man, blaming herself as the cause of the violence. MENS VIOLENCE, supra note 29, at 8. 41 Id. at 12 (noting that domestic violence is different from other forms of violent crime because the woman has an emotional relationship with the perpetrator and . . . because the violence is generally planned, controlled and carried out in the home, out of sight of other people.). LUNDGREN ET AL., supra note 28. Systemic intimate violence compels many women to change their ways of life and to limit their freedom of movement in order to avoid or reduce the risk of being subjected to abuse. MENS VIOLENCE, supra note 29, at 23.
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to draw a line between an improper state presence in ones personal affairs and meaningful state protection, yet this difficulty is not new to international law. Similar sensitivities arise in the regulation of child pornography and the protection of an individuals privacy, for example.42 It is crucial that proper procedural guidelines are employed when proposing state intervention, albeit for protective purposes. Still, state protection remains necessary, especially in light of the fact that the predominant harm for a woman emanates from her private, and not public, world.43 Therefore, not only is the cycle of abuse pernicious because of the almost subliminal increment of harm, but also the context of the relationship masks the harm, distorts the victims and societys view of the violence, and divorces the abused in her private world from the remedies that exist in the public one. E. Group Vulnerability of Women The fourth element is the vulnerability of women as a group to systemic intimate violence. Systemic intimate violence against women is not a case-bycase peculiarity, but often a manifestation of social views, perceptions, priorities, and customs, as discussed above. A question that often arises is why the female victim does not just leave. While it appears that abused women have the freedom to leave, this is a myth. Flight is a fallacy. This may be due to factors that are external to the victim. She may be locked up by the abuser or so closely controlled and monitored that effectively she is imprisoned. Her abuser may threaten to kill her, her children, loved ones, or companion animals. These threats are confirmed by the fact that the most deadly incidents of violence occur when the abused leaves the relationship. She also may not have the finances or earning potential to support herself or her dependents. There are also factors internal to the victim that may prohibit her escape. The onset of depression is one of the side effects of repeated acts of assault; it reduces an individuals ability to perform ordinary daily functions and makes long-term planning a task that is beyond the victims ability.44 Merely making
See John Quigley, Child Pornography and the Right to Privacy, 43 FLA. L. REV. 347, 348 (1991). State v. Godfrey Baloyi 2000 (1) BCLR 86 (CC) at 96 (S. Afr.). Despite the high value set on the privacy of the home and the centrality attributed to intimate relations, all too often the privacy and intimacy end up providing both the opportunity for violence and the justification for non-interference. Id. 44 See Bonita C. Meyersfeld, Reconceptualizing Domestic Violence in International Law, 67 ALB. L. REV. 371, 389 (2003).
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a phone call can take significant energy. Accepting ones situation and not involving the authorities may be the easiest way of surviving.45 Most often, she does not leave simply because she has nowhere to go. Unlike any other violent crime, the victim of systemic intimate violence has no place of refuge. Her home is the locus of the crime. Safe housesbe they private or state operatedoften do not accept women with their children or companion animals or, quite simply, do not exist.46 One of the major impediments in the United Kingdom to victims escaping systemic intimate violence is the status of women with so-called questionable or uncertain immigration status.47 Individuals falling into this opaque status are not entitled to receive state benefits, including housing, health care, and financial assistance.48 Women who risk their and their childrens immigration status by going to the authorities for assistance are told that they cannot access safe houses or be given food or work. The only assistance offered by the state is to take their children into state care and begin deportation proceedings.49 F. State Failure Domestic violence has all the characteristics of a global pandemic. Despite the seriousness of this problem, there has been a grand failure on the part of
45 See MENS VIOLENCE, supra note 29, at 9. For the victim, it takes effort to keep the violence a secret in order to ensure appearances of working order. Her own needs are restrained; she tries to avoid annoying the man, and controls her facial expressions and body language. Enormous amounts of activity, planning, and strength are required, simply to cope with everyday life. Id. at 31. The results of a study of a psychiatric facility in Sweden showed:
[A]s many as 70 per cent of the women interviewed (1,382) stated that they had at some point been subjected to physical, sexual or psychological abuse. Among those who indicated that they had experiences of violence, some 70 per cent believed that their mental illness was linked to the violence. Id.
46 See, e.g., WORLD REPORT ON VIOLENCE AND HEALTH, supra note 8, at 99. [S]ocieties with the lowest levels of partner violence were those that had community sanctions against partner violence and those where abused women had access to sanctuary, either in the form of shelters or family support. Id. 47 See AMNESTY INTL & SOUTHALL BLACK SISTERS, NO RECOURSE NO SAFETY: THE GOVERNMENTS FAILURE TO PROTECT WOMEN FROM VIOLENCE 69 (2008), available at http://www.amnesty.org.uk/uploads/ documents/doc_18308.pdf. 48 See id. 49 See id.
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governments to address it. This failure of states to intervene is a key ingredient in the perpetuation of this pandemic.50 State omission usually manifests in deficient police services, inaccessible or inefficient court processes, poor health services, and a lack of economic assistance, either in the form of welfare systems or protective labor laws.51 In many countries, the courtroom is no friend to women, let alone women who are survivors of systemic intimate violence.52 Women experience explicit and implicit discrimination in the legal system; they are humiliated, re-victimized, misunderstood, and patronized.53 The criminal justice system may be too heavy handed for victims who do not want to send their partners to jail (because, for example, the abuser may be the breadwinner, the father of the victims children, or, more poignantly, the victim continues to love the abuser). At the same time, police officials may underestimate the fatal seriousness of the violence or, frustrated with victims reuniting with abusers, they may lack the resources to assist the same victims repeatedly.
50 See Report of the Special Rapporteur on Violence Against Women, supra note 3, at 1618 (presenting statistical data on the battering of women in various countries and attributing this to the inadequacy of governmental and societal responses); UNICEF, Domestic Violence, supra note 3; Celina Romany, Killing The Angel in the House: Digging for the Political Vortex of Male Violence Against Women, in THE PUBLIC NATURE OF PRIVATE VIOLENCE: THE DISCOVERY OF DOMESTIC ABUSE 285, 293 (Martha A. Fineman & Roxanne Mykitiuk eds., 1994) (describing the deficiency of Puerto Ricos domestic violence legislation). Romany states:
The experience with protective orders is a showcase of the resistance displayed by enforcement agents. Women engage in forum shopping for sympathetic judges, since they are frequently confronted with judges reluctance to deal with the serious implications of violence with its lethal nature. At times judges make derogatory comments about Law 54, revoke orders granted by other courts, while granting the batterer temporary custody of the children. They attempt to reconcile the couple, advising women to give their husbands or partners another opportunity; grant the order for a relatively short period of time; grant mutual orders of protection ordering both parties to refrain from harming each other. In short, battered women are not given adequate protection. Id. at 293. 51 See generally Pualani Enos, Prosecuting Battered Mothers: State Laws Failure to Protect Battered Women and Abused Children, 19 HARV. WOMENS L.J. 229, 231 (1996). 52 SCHNEIDER, supra note 7, at 91. 53 See Vicki Jackson, What Judges Can Learn from Gender Bias Task Force Studies, 81 JUDICATURE 15 (JulyAug. 1997) (describing sexist conduct in court rooms, such as addressing female witnesses and attorneys by their first names or as pretty, young, or girls). Jackson maintains that the perception of gender bias in a judge is more harmful to the legal system than its appearance in other participants. Id at 16. See also Romany, supra note 50, at 289 (explaining that what drives judicial officers in their discrimination against women in cases of domestic violence is the need to preserve, at all costs, the family unit, the most revered of all social institutions).
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If a victim is unable to procure help from state sources, there is a clear deficiency on the part of the states service provision. This may be due to a financial inability to provide resources, but is often also the result of the states misconception of the fluid and cyclical pattern of systemic intimate violence. This approach of inertia and ignorance on the part of states becomes systemic, and the intimate violence, which we perceive as private, develops a very public dimension. The characteristics of systemic intimate violence are such that they violate several aspects of an individuals recognized human rights. What is not clear, however, is whether there is a principle of international law that requires states to protect vulnerable groups, such as women, from systemic intimate violence. III. IS THERE AN INTERNATIONAL RIGHT TO BE FREE FROM SYSTEMIC INTIMATE VIOLENCE? A. General The international community currently is in the process of articulating a new norm regarding domestic violence. However, this norm has not yet developed; it is in an embryonic state and requires maturation, both in substance and in authoritative endorsement. While there are international treaties, which, through interpretation and extrapolation, can be said to prohibit domestic violence implicitly, such legal standards are at a general and inadequate level of abstraction. In addition, while international instruments (e.g., U.N. declarations and statements by U.N. agencies) contain more direct prohibitions against domestic violence, such prohibitions do not adequately articulate a corresponding responsibility of states to take steps toward prevention of domestic violence; the prohibitions are not as absolute and categorical as other condemnations of human rights violations in international law. The history of violence against women in international law, and domestic violence specifically, reveals how this growing norm has developed. B. History The movement to recognize gender-based violence as a human rights violation is a relatively recent global development. Five decades ago, after World War II, the persecution of women did not receive specific attention in
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the Nuremberg or Tokyo tribunals, but rather was subsumed within the general horror of the crimes committed against Jews, Gypsies, homosexuals, the disabled, and other targeted groups.54 For the most part, violence against women was considered a private matter, perpetrated by individuals over whom the state had no authority. However, over the last fifty years, evolution in international law, combined with a truly remarkable struggle by the feminist movement, have changed the way human rights lawyers see violence against women. The principle of state sovereigntythe notion that what happens within the borders of a state remains its exclusive concernalso started to wane, and the community of nations began holding states accountable for the way they treat their citizens.55 The core values of dignity, equality, physical integrity, and freedom from fear were refined. International law began to recognize the peculiar way in which violence and sexism intersect, and how violence against women is used as a technique of subordination, a method of inculcating fear, and an instrument that impedes womens ability to flourish. Domestic violence was one of the earliest forms of gender-based violence to generate international action.56 In the early 1970s, the U.N. General Assembly proclaimed 1975 as International Womens Year, which was expanded to the United Nations Decade for Women from 1975 to 1985.57 During this period, three of the four world conferences on women were held in Mexico, Copenhagen, and Nairobi (Beijing, the most recent, was held in 1995).58
54 Catherine Phoung, Rape and Other Acts of Sexual Violence as Crimes Against Humanity, WELTPOLITIK.NET, Dec. 5, 2005, http://www.weltpolitik.net (follow suche hyperlink; then search for Phuong; then follow WeltpolitikRape and Other Acts . . . hyperlink). 55 Richard Falk, Sovereignty and Human Rights: The Search for Reconciliation, GLOBAL POLICY FORUM, May 2000, http://www.globalpolicy.org/nations/future/0312falk.htm. 56 See Division for the Advancement of Women, United Nations Work on Violence Against Women, http://www.un.org/womenwatch/daw/news/unwvaw.html [hereinafter DAW Information Note]. Initially the development of policy within the United Nations with regard to violence against women was concentrated on violence against women in the family. Id. 57 Id. In 1972, the General Assembly, in its resolution 3010 (XXVII), proclaimed 1975 International Womens Year, to be devoted to intensified action to promote equality between men and women, to ensure the full integration of women in the total development effort and to increase womens contribution to the strengthening of world peace. Third World Conference on the Advancement of Women, Nairobi, July 1526, 1985, Report of the World Conference to Review and Appraise the Achievements of the United Nations Decade for Women: Equality, Development and Peace, 2, available at http://domino.un.org/UNISPAL.nsf/ 361eea1cc08301c485256cf600606959/7b02825848cc2afa85256dcd007534d2!OpenDocument [hereinafter Nairobi Principles]. 58 Nairobi Principles, supra note 57.
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In 1975, Mexico was the site of the first World Conference on Women. The World Plan of Action adopted at this conference did not refer explicitly to violence, but drew attention to the need for the family to ensure dignity, equality and security of each of its members.59 It is clear that violence against women was not on the radar of international law at this stage, and when the Convention on the Elimination of Violence Against Women (CEDAW) was adopted four years later in 1979, violence against women was not incorporated into the original text.60 At the second World Conference on Women in Copenhagen in 1980, however, reference was made to family violence, and the conference participants adopted a resolution on battered women and violence in the family.61 At the third World Conference, which took place in Nairobi in 1985, violence against women was a far more prominent theme, emerging as a serious international concern.62 The Forward-looking Strategies adopted by
DAW Information Note, supra note 56. Convention on the Elimination of All Forms of Discrimination Against Women, G.A. Res. 34/180, at 193, U.N. GAOR, 34th Sess., Supp. No. 46, U.N. Doc. A/34/830 (Dec. 18, 1979) [hereinafter CEDAW] (establishing the Committee, [f]or the purpose of considering the progress made in the implementation of the present Convention.). I refer to the Convention Committee as the CEDAW Committee. For a list of States that have signed and ratified CEDAW, see CEDAW: State Parties, http://www.un.org/womenwatch/daw/ cedaw/states.htm. For Parties that have entered reservations to CEDAW, see CEDAW Sessions: Declarations, Reservations, and Objections to CEDAW, http://www.un.org/womenwatch/daw/cedaw/reservations-country. htm. The document was aimed at preventing discrimination against women and not violence against women. 61 DAW Information Note, supra note 56. 62 Id. See also Nairobi Principles, supra note 57. Some of the specific references to violence against women include: the requirement that governments
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undertake effective measures, including mobilizing community resources to identify, prevent and eliminate all violence, including family violence, against women and children and to provide shelter, support and reorientation services for abused women and children Id. 231; the demand for [i]mmediate and special priority . . . to the promotion and the effective enjoyment of human rights and fundamental freedoms for all without distinction as to sex, the full application of the rights of peoples to self-determination and the elimination of colonialism, neo-colonialism, apartheid, of all forms of racism and racial discrimination, oppression and aggression, foreign occupation, as well as domestic violence and violence against women Id. 245; the acknowledgement that violence against women exists in various forms in everyday life in all societies. Women are beaten, mutilated, burned, sexually abused and raped. Such violence is a major obstacle to the achievement of peace and the other objectives of the Decade and should be given special attention. Women victims of violence should be given particular attention and comprehensive assistance. To this end, legal measures should be formulated to prevent violence and to assist
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the Conference linked peace and equality to the eradication of violence against women in both the public and private spheres.63 Meanwhile, one year prior to Nairobi, in 1984, the U.N. Economic and Social Council passed Resolution 1984/14 on violence in the family.64 Based on this resolution, the U.N. General Assembly passed Resolution 40/36 on domestic violence one year later, inviting states to take specific action urgently in order to prevent domestic violence and to render the appropriate assistance to the victims thereof.65 The Resolution also called for U.N. research on domestic violence from a criminological perspective to formulate distinct action-oriented strategies.66 The Resolution laid the foundation for compelling legislative reform. At this stage, however, the Resolution invites member states to enact and implement criminal and civil legislation, provide temporary shelter relief for victims, curb domestic violence through a process of education and research, and improve the accessibility of social, legal, and health services.67 The Resolution was not authoritative or mandatory, using the language only of invitation and suggestion. However, it did lead to an Expert Group Meeting on Violence in the Family in 1986, which focused on how domestic violence affects women.68
women victims. National machinery should be established in order to deal with the question of violence against women within the family and society. Preventive policies should be elaborated, and institutionalized forms of assistance to women victims provided Id. 258; and, that because of the increase of gender-based violence, governments must affirm the dignity of women, as a priority action. Governments should therefore intensify efforts to establish or strengthen forms of assistance to victims of such violence through the provision of shelter, support, legal and other services. In addition to immediate assistance to victims of violence against women in the family and in society, Governments should undertake to increase public awareness of violence against women as a societal problem, establish policies and legislative measures to ascertain its causes and prevent and eliminate such violence in particular by suppressing degrading images and representations of women in society, and finally encourage the development of educational and re-educational measures for offenders. Id. 288. 63 DAW Information Note, supra note 56 (stating that [t]he conference included violence as a major obstacle to the achievement of development, equality and peace, the three objectives of the Decade.). See also Nairobi Principles, supra note 57. 64 Violence in the Family, E.S.C. Res. 1984/14, U.N. ESCOR, 19th plen. mtg. (May 24, 1984). 65 G.A. Res. 40/36, art. 2, U.N. Doc A/RES/40/36 (Nov. 29, 1985). 66 Id. art. 3. Article 5 also calls for inter-agency support for domestic violence within the U.N. See id. art. 5. 67 Id. art. 7(a). See also id. art. 7(f) (dealing with providing temporary shelters); art. 7(c) (dealing with education); & art. 7(j) (dealing with improved services). 68 See DAW Information Note, supra note 56.
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In 1989, the United Nations released a report on Violence Against Women in the Family, which became one of the significant markers of change on the international legal landscape.69 The report established four important factors. First, it described domestic violence as a problem in almost every country, giving it an international profile.70 Second, domestic violence was cited as one of the more serious causes of ill health amongst women, thereby linking it to the existing international right to health.71 Third, the report established that domestic violence is not random but is associated with inequality between women and men, and strategies to perpetuate or entrench that inequality.72 Finally, the report initiated a change in the emphasis in international law from protection of the family to protection of individuals within the family.73 This is important because many human rights instruments promote the protection of the family unit because it is the natural and fundamental group unit of society [that] is entitled to protection by society and the State.74 As far as domestic violence is concerned, the family is the location of the harm. The emphasis on the protection and sanctity of the family unit in basic international human rights instruments sheds some light on the tendency of so many people to see all family activity, including domestic violence, as a private issue that falls outside the purview of the law. Therefore, the report, by acknowledging that domestic violence is both a manifestation of discrimination against women
U.N. CENTRE FOR SOCIAL DEVELOPMENT AND HUMANITARIAN AFFAIRS, VIOLENCE AGAINST WOMEN FAMILY at 14, U.N. Doc. ST/CSDHA/2, U.N. Sales No. E.89.IV.5 (1989) [hereinafter UNITED NATIONS, VIOLENCE AGAINST WOMEN IN THE FAMILY]. It was also at this time that the CEDAW Committee recommended that states include a discussion of violence against women in their reports to the CEDAW Committee. Comm. on the Elimination of Discrimination Against Women, Gen. Recommendation 19, Violence Against Women, art. 2, U.N. Doc. A/47/38 (1993) [hereinafter Gen. Recommendation 19]. 70 UNITED NATIONS, VIOLENCE AGAINST WOMEN IN THE FAMILY, supra note 69. Violence against women is a problem worldwide, occurring, to a greater or lesser degree, in all regions, countries, societies and cultures, and affecting women irrespective of income, class, race or ethnicity. DAW Information Note, supra note 56. 71 UNITED NATIONS, VIOLENCE AGAINST WOMEN IN THE FAMILY, supra note 69, at 2122. 72 DAW Information Note, supra note 56. See also HELEN OCONNELL, EQUALITY POSTPONED: GENDER, RIGHTS AND DEVELOPMENT 11 (1996). 73 UNITED NATIONS, VIOLENCE AGAINST WOMEN IN THE FAMILY, supra note 69, at 14. 74 Universal Declaration of Human Rights, G.A. Res. 217A (III), art. 16(3), U.N. GAOR, 3d Sess., 1st plen. mtg., U.N. Doc A/810 at 71 (Dec. 10, 1948) [hereinafter UDHR]. See also African [Banjul] Charter on Human and Peoples Rights, art. 18(1), June 27, 1981, OAU Doc. CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (describing the family as the natural unit and basis of society). The individual shall also have the duty . . . to preserve the harmonious development of the family and to work for the cohesion and respect of the family. Id. art. 29(1). No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation. International Covenant on Civil and Political Rights, G.A. Res. 2200A (XXI), art. 17(1), U.N. GAOR, 21st Sess., Supp. No. 16, U.N. Doc. A/6316 (Dec. 16, 1966) [hereinafter ICCPR].
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and a perpetuating force of gender inequality, helped to mitigate some of the exaggerated respect for the family unit.75 In 1990, the U.N. General Assembly adopted General Resolution 45/114 on domestic violence, which noted the serious lack of information and research on domestic violence globally and the need for exchange of information on ways of dealing with this problem.76 This Resolution was nuanced, identifying the need to articulate common policies; specialized approaches; the particular needs of women, children, and the elderly; the diverse approaches of different cultures to domestic violence; and the impact of domestic violence on attitudes and behaviour, such as increased tolerance to violence in society as a whole.77 Once again, using suggestive language, the Resolution urged, but did not require, states to adopt and implement multidisciplinary policies to prevent domestic violence, protect the victims, and provide appropriate treatment for offenders.78 Possibly the most important aspect of the 1990 Resolution was its globalizing effect. In urging member states to exchange information, experience and research findings, the Resolution shifted domestic violence into the mainstream realm of international justice and public affairs and acknowledged the global pervasiveness of this problem.79 Domestic violence was now a recognized pandemic. In 1992, the CEDAW Committee incorporated violence against women into its jurisprudence with the adoption of General Recommendation 19.80 General Recommendation 19 expressly confirmed that domestic violence impedes gender equality and that the full implementation of the Convention required states to take positive measures to eliminate all forms of violence against women.81
75 For a discussion of the report, see Hilary Charlesworth et al., Feminist Approaches to International Law, 85 AM. J. INTL L. 613, 636 (1991) (describing how protection of the family also preserves the power structure within the family, which can lead to subjugation and dominance by men over women and children.). 76 G.A. Res. 45/114, pmbl., U.N. Doc. A/RES/45/114 (Dec. 14, 1990). 77 Id. However, Article 2 emphasizes criminal sanctions for domestic violence, which is not necessarily the ideal approach. See id. art. 2. 78 Id. art. 1(a)(d). 79 Id. art. 3. See also id. art. 4 (urging Member States, the Secretary-General and concerned intergovernmental and non-governmental organizations to include the problem of domestic violence in the preparations for and observance of the International Year of the Family, within the crime prevention and criminal justice area.). 80 See Gen. Recommendation 19, supra note 69. 81 Id.
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General Recommendation 19 laid a framework, the value of which cannot be discounted. It broadened the definition of violence against women to include physical, sexual, and psychological harm, including threats of such acts, coercion and other deprivations of liberty, whether occurring in public or private life.82 Moreover, it demonstrated that violence between intimates affects women disproportionately, demarcating women as a group in need of proactive state protection.83 To this end, General Recommendation 19 suggested that states take specific steps to reduce domestic violence, namely improving the legal protection of women through legislative amendments and gender-sensitive training for the judiciary,84 gathering statistics in order to identify the nature and extent of the problem,85 and creating complaint mechanisms86 and places of refuge for women escaping violent circumstances.87 Finally, it incorporated reference to the due diligence standard to determine what conscientious states should do to fulfill the objectives contained in General Recommendation 19.88 Then, in 1993, the World Conference on Human Rights in Vienna witnessed one of the strongest global calls for the recognition of violence against women as an international human rights violation.89 The incorporation of the human rights of women in the Vienna Declaration and Programme of Action led to the appointment of the Special Rapporteur on Violence Against Women and the emergence of female genital cutting (FGC) as an international human rights violation.90
Id. 6, 24(a). See id. 2324. 84 Id. 24(b). 85 Id. 24(c). 86 See id. 24(i). 87 Id. 24(k), 24(r)(iii). 88 Id. 9. 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. Id. 89 See Office of the High Commissioner for Human Rights, World Conference on Human Rights, 1425 June 1993, Vienna, Austria, http://www.unhchr.ch/html/menu5/wchr.htm (stating that the Conference took historic new steps to promote and protect the rights of women.). See also World Conference on Human Rights, June 1425, 1993, Vienna Declaration and Programme of Action, 3644, U.N. Doc. A/CONF.157/23 (July 12, 1993) [hereinafter Vienna Declaration]. 90 See DAW Information Note, supra note 56. The Mandate of the Special Rapporteur on Violence Against Women was to
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seek and receive information on violence against women and to recommend measures to eliminate violence. In her reports she has covered, inter alia, military sexual slavery in wartime, rape in the community, domestic violence, trafficking and forced prostitution of women, [and] womens reproductive rights. She has also embarked on missions to Member States of the
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The internationalization of the movement to stop violence against women gained significant momentum in the 1993 U.N. Declaration on the Elimination of Violence Against Women (DEVAW).91 DEVAW adopted the same principles as the CEDAW Committees General Recommendation 19, identifying the need for:
a clear and comprehensive definition of violence against women, a clear statement of the rights to be applied to ensure the elimination of violence against women in all its forms, a commitment by States in respect of their responsibilities, and a commitment by the international community at large to the elimination of violence 92 against women.
In the same year, the General Assembly of the Organization of American States (OAS) adopted the Inter-American Convention on the Prevention, Punishment and Eradication of Violence Against Women, which became known as the Convention of Belem Do Para.93
United Nations to investigate and propose strategies to address gender-based violence against women. Id. The political bodies of the United Nations have continued to adopt resolutions on gender-based violence against women . . . and traditional practices affecting the health of women and girls, such as female genital mutilation. Id. 91 Declaration on the Elimination of Violence Against Women, G.A. Res. 48/104, at 217, U.N. Doc. A/48/49 (Dec. 20, 1993) [hereinafter DEVAW]. Article 1 defines violence against women as including public and private violence: For the purposes of this Declaration, the term violence against women means any act of gender-based violence 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 deprivation of liberty, whether occurring in public or in private life. Id. Article 4(k) requires States to [p]romote research, collect data and compile statistics, especially concerning domestic violence, relating to the prevalence of different forms of violence against women and encourage research on the causes, nature, seriousness and consequences of violence against women and on the effectiveness of measures implemented to prevent and redress violence against women; those statistics and findings of the research will be made public. Id. art. 4(k). Article 4(c) requires States to [e]xercise 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. Id. art. 4(c). See generally Report of the Committee on the Elimination of Discrimination Against Women (Fourteenth Session), U.N. Doc. A/50/38 (May 31, 1995), available at http://www.un.org/esa/gopher-data/ga/cedaw/14/a5038.en. Specifically, Article 5 enjoins the U.N. bodies and other international organizations to include the protection of women from violence in their respective fields of competence. See DEVAW, supra, art. 5. 92 DEVAW, supra note 91, pmbl. 93 Inter-American Convention on the Prevention, Punishment and Eradication of Violence Against Women, June 9, 1994, 33 I.L.M. 1534 [hereinafter Convention of Belem Do Para].
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In 1995, at the Fourth World Conference on Women in Beijing, violence against women was identified as one of the twelve areas of womens lives requiring urgent action.94 The subsequent Beijing Declaration and Platform for Action adopted the definition of violence against women in DEVAW and expanded it to include violence perpetrated against women in war.95 At this point, the focus of violence against women shifted from non-state violence to crimes of conflict and mass rape as a weapon of war, which characterized the genocides in Rwanda and the former Yugoslavia during the 1990s.96 If the practice of FGC was one of the first specific acts of violence against women to receive international admonishment,97 mass rape was the second.98 The jurisprudence of womens international rights was further augmented by the decisions of the International Criminal Tribunals for the Former Yugoslavia99 and Rwanda,100 which established the precedent and legal rationale that led to the criminalization of mass rape as a weapon of war, a crime against humanity, and an instrument of genocide under the Rome Statute in 1998.101
94 See Fourth World Conference on Women, Sept. 415, 1995, Report of the Fourth World Conference on Women, 44, U.N. Doc. A/CONF.177/20 (Oct. 17, 1995) [hereinafter Beijing Declaration]. 95 Id. 113, 114. 96 See Sherrie L. Russell-Brown, Rape as an Act of Genocide, 21 BERKELEY J. INTL L. 350, 350 (2003). See also Kelly D. Askin, Prosecuting Wartime Rape and Other Gender-Related Crimes under International Law: Extraordinary Advances, Enduring Obstacles, 21 BERKELEY J. INTL L. 288, 31746 (2003). 97 See Anika Rahman & Nahid Tubia, Female Genital Mutilation: Have We Made Progress?, 82 INTL J. GYNECOLOGY AND OBSTETRICS 251, 253 (2003). FGC was specifically prohibited in DEVAW, which includes female genital mutilation in the definition of violence against women. DEVAW, supra note 91, art. 2(a). See also Report of the Special Rapporteur on Violence Against Women, supra note 3, 10415. 98 See generally Askin, supra note 96, at 347 (discussing the jurisprudence on rape as a weapon of war or genocide or as a crime against humanity). See Vienna Declaration, supra note 89, 28, 38. Elizabeth Schneider addressed the culmination of these developments in her examination of the law regarding battered women from the feminist perspective, where the various motivations for and implications of domestic violence as an international human rights violation are garnered. See SCHNEIDER, supra note 7, at 95. 99 S.C. Res. 808, 1, U.N. Doc. S/RES/808 (Feb. 22, 1993) (establishing the International Criminal Tribunal for the Former Yugoslavia); S.C. Res. 827, 1, U.N. Doc. S/RES/827 (May 25, 1993) (establishing the International Criminal Tribunal for the Former Yugoslavia). See also Statute of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law in the Territory of the Former Yugoslavia Since 1991, U.N. Doc. S/25704, Annex, reprinted in 32 I.L.M. 1159 (1993). 100 S.C. Res. 955, 1, U.N. Doc. S/RES/955 (Nov. 8, 1994) (establishing the International Criminal Tribunal for Rwanda). See also Statute of the International Criminal Tribunal for Rwanda, Nov. 8, 1994, 33 I.L.M. 1602. 101 See Prosecutor v. Furundija, Case No. IT-95-17/1-T, Judgment, 170171 (Dec. 10, 1998) (indicating that although [n]o international human rights instrument specifically prohibits rape[,] . . . [i]n certain circumstances . . . rape can amount to torture.). See also Prosecutor v. Rutaganda, Case No. ICTR-963-T, Judgment & Sentence, 65 (Dec. 6, 1999) (identifying rape and torture as crimes against humanity). See United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal
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In 2000, the U.N. General Assembly adopted the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination Against Women.102 This enabled the CEDAW Committee to receive communications by or on behalf of individuals who have grievances falling within the scope of CEDAW.103 It also gave the CEDAW Committee investigative powers, significantly augmenting the status of CEDAW.104 In March of the same year, the U.N. Human Rights Committee adopted General Comment No. 28, entrenching equality of rights between men and women.105 This was an important moment in womens rights jurisprudence. The U.N. Human Rights Committee authorized the interpretation of Article 3 of the ICCPR as requiring proactive conduct by states to ensure to men and women equally the enjoyment of all rights provided for in the Covenant.106 General Comment No. 28 acknowledged what feminists had claimed for over three decades: harm and inequality, which are unique to women, had not been addressed by mainstream international law and that positive action was necessary to offset the negative effects of the historic legacy of gender discrimination and differentiation.107 On October 9, 2006, the Office of the Secretary-General Kofi Annan issued a report classifying violence against womenwhether in the home or
Court, Rome, Italy, June 15July 17, 1998, Rome Statute of the International Criminal Court, art. 7, 1, U.N. Doc. A/CONF.183/9 [hereinafter Rome Statute]. Article 7 of the Rome Statute defines crimes against humanity as conduct that is widespread, systematic and focused on a segment of a population, including: [r]ape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity; [p]ersecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender . . . or other grounds that are universally recognized as impermissible under international law; [o]ther inhumane acts of a similar character intentionally causing great suffering, or serious injury to body and to mental or physical health. Id. art. 7(1)(g), (h), (k). 102 Optional Protocol to the Convention on the Elimination of All Forms of Discrimination Against Women, G.A. Res. 54/4, U.N. GAOR, 54th Sess., Supp. No. 49, Vol. 1, U.N. Doc. A/54/49 (Oct. 6, 1999) [hereinafter CEDAW Optional Protocol]. 103 Id. art. 1. 104 Id. art. 8(2). For a description of the history of the CEDAW Optional Protocol, see the U.N. Division for the Advancement of Women, Department of Economic and Social Affairs, http://www.un.org/ womenwatch/daw/cedaw/protocol/. 105 Human Rights Committee, General Comment No. 28: Equality of Rights Between Men and Women, U.N. Doc. CCPR/C/21/Rev.1/Add.10 (Mar. 29, 2000), available at http://www.unhchr.ch/tbs/doc.nsf/0/ 13b02776122d4838802568b900360e80?Opendocument [hereinafter General Comment No. 28]. See also BENNINGER-BUDEL, supra note 2, at 1114. 106 General Comment No. 28, supra note 105, at 23. 107 See id. 3.
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elsewhereas a human rights violation.108 The report confirmed that states are obliged by international human rights standards to hold perpetrators accountable.109 The report was a breakthrough, confirming that (i) violence against women is not inevitable; (ii) violence against women continues because of discrimination against women; and (iii) the continued prevalence of violence against women indicates that States have yet to tackle it with the necessary political commitment, visibility and resources.110 Today, the United Nations distributes its policy on violence against women via a resource manual on strategies for confronting domestic violence, prepared under the supervision of the United Nations Centre for Crime Prevention and Criminal Justice.111 In addition, the United Nations Children Fund has produced a report on Domestic Violence Against Women and Girls, describing the types, causes, and consequences of domestic violence.112 Notwithstanding these developments, however, there is no treaty in international law prohibiting systemic intimate violence. Whether or not there is a principle of customary international law depends very much on ones interpretation of this area of international law. The next section of the Article addresses these deficiencies. C. Deficiencies It is my view that there is evidence only of a norm developing in international law. We are in the midst of the amorphous process of normcrystallization through custom. Thus, it is unclear whether there is an absolute norm obliging states to prevent systemic intimate violence in international law. But it is possible to claim that the norm is developing. The more precise, certain, and authoritative international instruments are, the easier it will be to
108 THE SECRETARY-GENERAL, ENDING VIOLENCE AGAINST WOMEN: FROM WORDS TO ACTION, at iv, U.N. Sales No. E.06.IV.8 (2006), available at http://www.un.org/womenwatch/daw/public/VAW_Study/ VAWstudyE.pdf [hereinafter STUDY OF THE SECRETARY-GENERAL]. 109 Id. 110 Id. at i. 111 See DAW Information Note, supra note 56. Other parts of the United Nations system and its related entities, such as the International Labour Organization and the World Health Organization, addressed specific forms of violence against women within their specific mandates. Id. 112 UNICEF, Domestic Violence, supra note 3. UNIFEM also administers the Trust Fund in Support of Action to Eliminate Violence Against Women, which provides financial support for projects to eradicate gender-based violence, as well as mounting innovative regional and international advocacy campaigns involving grassroots activists on the issue. See UNIFEM, UN Trust Fund to End VAW, http://www.unifem. org/gender_issues/violence_against_women/trust_fund.php (last visited Jan. 29, 2008).
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rely on customary international law when pursuing improved state responses to domestic violence in national systems. There are three primary deficiencies. First, there is no specific and independent international prohibition against systemic intimate violence. Most of the support for a prohibition on violence against women exists in customary international law and the debate regarding the content, rules, and very legitimacy of customary international law is extensive.113 In order for a practice to amount to a rule of customary international law, there must be uniform and constant usage of the practice, which is recognized by countries as a rule of international law (opinio juris sive necessitates, hereinafter referred to as opinio juris).114 For the most part, customary international law is ambiguous, as it lacks the clarity and express consensus of binding treaties. While customary international law can develop absent express, universal consent, states are endowed with the ability to dissent from a rule of customary international law.115 This is known as the principle of the persistent objector and provides that if a state has objected persistently to a rule of customary international law during the course of the rules emergence, such state is not bound by this rule.116 The dissent does not negate the legality of the rule vis--vis other states. It simply does not bind the objecting state. 117
113 For a discussion of the deficiencies in customary international law, see Patrick Kelly, The Twilight of Customary International Law, 40 VA. J. INTL L. 449 (2000). 114 Statute of the International Court of Justice art. 38(b), June 26, 1945, 59 Stat. 1031 [hereinafter ICJ Statute]. Article 38(b) of the ICJ Statute provides that the court shall use the following sources of international law:
(a) (b) (c) (d)
international conventions, whether general or particular, establishing rules expressly recognized by the contesting states; international custom, as evidence of a general practice accepted as law; the general principles of law recognized by civilized nations; subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.
Id. See also The Paquete Habana, 175 U.S. 677 (1900) (emphasizing that the conclusion of treaties and the adoption of certain practices by states are evidence of the existence of a customary international law). An example of customary international law is the principle that warring states will not capture the trading ships of the enemy state. Id. 115 Jo Lynn Slama, Note, Opinio Juris in Customary International Law, 15 OKLA. CITY U. L. REV. 603, 626 (1990) (citing Ted L. Stein, The Approach of the Different Drummer: The Principle of the Persistent Objector in International Law, 26 HARV. INTL L.J. 457, 469 (1985)). 116 See id. at 627. 117 Id. at 62728.
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Given the high degree of violence against women condoned by states and the persistent reluctance of states to intervene to mitigate such violence, it is difficult to assert either that states act consistently to prevent systemic intimate violence or that they believe they have a customary legal obligation to do so. Therefore, the existence or not of a rule against systemic intimate violence in customary international law depends on ones interpretation of this area of law. Where strong customary international law exists, violence against women is merged with general principles relating to equality. In the last two decades, the high rates of violence against women globally have appeared on international human rights agendas. The former Special Rapporteur on Violence Against Women, the U.N., and several others have referred to domestic violence as a human rights violation based on three decades of testimony, fact finding, lobbying, and law making.118 However, these statements are made in relation to other international law themes, usually discrimination against women as a whole.119 Whereas mass rape and trafficking, for example, have been recognized as independent categories of human rights violations, systemic intimate violence usually is raised as an example of the broader category of gender discrimination. While domestic violence certainly is a form of inequality and gender-based violence, treating such violence solely as part of this general catch-all category is insufficient. Systemic intimate violence requires independent and specific approbation to avoid the creation of laws that suffer from radical indeterminacy, ethnocentrism [or] patriarchy.120 There are also several international and regional treaties that can be read to include a right to be free from domestic violence. However, as explained above, these legal standards are implicit and at an inadequately general level of abstraction. Because there is no domestic violence treaty, non-treaty instruments, such as resolutions and U.N. committee declarations, become all the more important. These instruments go a long way to proving custom and consent on the part of member states and are the strength of the argument promoting a customary international law norm against domestic violence. This, however, remains a contentious debate, and customary international law
Report of the Special Rapporteur on Violence Against Women, supra note 3. Id. 120 Hilary Charlesworth, The Unbearable Lightness of Customary International Law, 92 AM. SOCY INTL L. PROC. 44, 46 (1998) (citing John Tasioulas, In Defence of Relative Normativity: Communitarian Values and the Nicaragua Case, 16 OXFORD J. LEGAL STUD. 85, 128 (1996)).
119
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as the sole authority for a norm against systemic intimate violence is neither authoritative nor without contention. The precise right to be free from systemic intimate violence and the concomitant state obligation to help remedy such violence, with all their nuances, either are hidden within the network of instruments and their interpretation or are absent entirely. A clear, express, and binding articulation of this right is required. The U.N. Secretary-Generals report on violence against women is a move away from the generalization of domestic violence and is one of the first specific, focused, authoritative pronouncements of a norm against systemic intimate violence.121 The second deficiency is the lack of general politicization of systemic intimate violence, with concomitant economic empowerment.122 The topic needs to be central to political, health, and economic discussions.123 Articulating a right to be free from domestic violence will not compel state assistance without a corresponding redistribution of resources and a review of power structures, both within the family and outside familial institutions.124 The allocation of resources to alleviate gender-based violence and discrimination in general is a call that has been made many times before. Political philosopher Amartya Sen argues that both biological and social differences between men and women should be taken into account if a fair
121 122
See Study of the Secretary-General, supra note 108. See, e.g., Elizabeth M. Schneider, The Violence of Privacy, in THE PUBLIC NATURE OF PRIVATE VIOLENCE: THE DISCOVERY OF DOMESTIC ABUSE 36, 47 (Martha A. Fineman & Roxanne Mykitiuk eds., 1994) (arguing that a legal process that does not provide women with the resources (e.g., free trained legal counsel) is vacuous). She concludes that although in theory we might prefer a more formal legal process for battered women, in practice, under present conditions of scarce legal resources, it may not be realistic. Id. See Romany, supra note 50, at 29597 (arguing that the jurisprudence of the social contract is male-centric). The family is posited as a necessary foundation of social order, but one from which the state is removed. The violence experienced by women takes place in this realm and is compounded by the states non-political perception thereof. Compounded by the social and psychological processes which normalize the violence, the political nature of violence and the way it impedes womens full citizenship is obscured and rendered invisible. See id. 123 For a discussion of the criticisms of womens rights in international law in the early 1990s, see Charlesworth et al., supra note 75, at 635 (describing the various criticisms of emphasizing rights of individuals in a system of competing rights and the potential to marginalize womens rights). See also VELZEBOER ET AL., supra note 3, at 23 (describing the importance of integrating health with other sectors to end gender-based violence, including domestic violence). 124 For example, the right to development only recently focuses on the needs of women. When the right was originally formulated, the subordination of women to men [did] not enter this traditional calculus of determining the causes of underdevelopment and the contribution of women to the informal economy has been analyzed only in the last decade. See Charlesworth et al., supra note 75, at 639.
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distribution of resources is to be achieved.125 Sen points out how the behavioral constraints related to perceptions of legitimacy and correctness can strongly affect the relationship between primary goods and the freedoms that can be generated with their use. If women are restrained from using the primary goods within their command for generating appropriate capabilities, this disadvantage would not be observed in the space of primary goods.126 Sen also recognizes the social imperatives that impede the well-being of women.127 He identifies [s]ocial conventions and implicit acceptance of natural roles [that] have a major influence on what people can or cannot do with their lives. . . . The sources of pervasive social discouragement are often hard to trace and harder to separate out.128 On this basis, Sen calls for gender to be taken into account in the distribution of resources.129 It is necessary to draw a distinction between developed and developing societies. Different types of societies with different resources will be capable of different types of action.130 Countries that allocate few rights to women and/or face exigent poverty demands may need to improve their protection of women at the most basic level, such as by enacting anti-discrimination legislation. In developed states, the requirement is less raw and may instead involve the refinement of pre-existing legislation and the allocation of resources toward, for example, additional shelters or making provisions for childcare at court houses.131
125 Amartya Sen, Gender Inequality and Theories of Justice, in WOMEN, CULTURE AND DEVELOPMENT: A STUDY OF HUMAN CAPABILITIES 259, 264 (Martha C. Nussbaum & Jonathan Glover eds., 1995). A pregnant woman may have greater nutritional needs than a man; therefore, if gender is not taken into account,
a pregnant woman may be at a disadvantage vis--vis a man of the same age in having the freedom to achieve adequate nutritional well-being. The differential demands imposed by neonatal care of children also have considerable bearing on what a woman at a particular stage of life can or cannot achieve with the same command over primary goods as a man might have at the corresponding stage of his life. Id. Id. Id. at 26465. 128 Id. at 265. 129 Id. 130 Henry Espinoza & Alma Virginia Camacho, Maternal Death Due to Domestic Violence: An Unrecognized Critical Component of Maternal Mortality, 17(2) PAN AM. J. PUB. HEALTH 123, 124 (2005). 131 For example, in South Africa, as of 2004, the government had enacted domestic violence legislation, implemented education and awareness-raising programs to combat domestic violence, and dedicated sixteen days in September 2004 to combating domestic violence. However, relatively few shelters exist in South Africa, where approximately one woman is killed every six hours as a result of intimate violence, and one out of four women is beaten every week by her boyfriend or spouse. For statistics, see Shanaaz Matthews et al.,
127 126
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In other words, the security and protection required for women is different from that required by men. There are social rules, norms, and inequities that generate different lives for the two genders. While these differences are unfortunate, they are a reality that will continue to pervade national laws unless international law requires alternative action. The third deficiency lies in the fact that the precise nature of systemic intimate violence, the international obligation of states to prevent it, and the jurisprudential principles underlying it are under-theorized. The current legal rationale substantiating these issues is piecemeal, and existing recommendations to states to ameliorate domestic violence are uniformly repetitive and usually too broad to be of much use. International legal jurisprudence requires a comprehensive discussion of the elements of systemic intimate violence that internationalize such violence, the steps states must take to stop it, whether it is theoretically possible to use international law to remedy such an intrinsically personal harm, and whether it is at all beneficial to turn to international law as a solution. These practical, policy, and academic deficiencies need to be remedied. First, an independent and specific prohibition against systemic intimate violence must be adopted and developed in international law. Second, the ramifications of systemic intimate violence must be incorporated into the political, economic, and health-related components of international dialogues.132 Finally, the right to be free from such violence requires greater theoretical substantiation, and the corresponding duty of states to help remedy such violence requires more meaningful and practical direction. On the basis that there is a developing customary international law principle that women have the right to be free from systemic intimate violence, what is the corresponding state obligation? In the next section, I discuss the principles of state responsibility in international law and how they apply to systemic intimate violence.
Every Six Hours a Woman Is Killed By Her Intimate Partner: A National Study of Female Homicide in South Africa (June 2004), http://www.mrc.ac.za/policybriefs/woman.pdf; Lisa Vetten, Addressing Domestic Violence in South Africa: Reflections on Strategy and Practice (2005), http://www.un.org/womenwatch/daw/ egm/vaw-gp-2005/docs/experts/vetten.vaw.pdf. See also U.S. STATE DEPT, BUREAU OF DEMOCRACY, HUMAN RIGHTS, AND LABOR, COUNTRY REPORTS ON HUMAN RIGHTS PRACTICES: SOUTH AFRICA (Feb. 28, 2005), http://www.state.gov/g/drl/rls/hrrpt/2004/41627.htm. 132 See VELZEBOER ET AL., supra note 3, at 7 (stating that intervention by health providers can potentially mitigate both the short- and long-term health effects of gender-based violence on women and their families.).
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IV. STATE FAILURE AND STATE RESPONSIBILITY In 2001, it was reported that over forty-five countries had laws that explicitly discriminate against women.133 Can a state be responsible for the acts of private individuals? Based on the progression of international legal theory, it is now recognized that not only governments, but also corporations, private death squads, and other groups, as well as individuals, violate human rights. Most recently, various forms of violence against women by spouses, partners, and other family members, are recognized to be human rights violations.134 A. State Responsibility for the Individual It is widely accepted that international law concerns itself not only with the behavior of states but also with needs and rights of individuals.135 In 1949, the
133 Kerri L. Ritz, Soft Enforcement: Inadequacies of Optional Protocol as a Remedy for the Convention on the Elimination of All Forms of Discrimination Against Women, 25 SUFFOLK TRANSNATL L. REV. 191, 200 (2001). 134 See ALLEN BUCHANAN, JUSTICE, LEGITIMACY, AND SELF-DETERMINATION 123 (2006).
[H]uman rights were originally conceived as being addressed to governments, and hence the correlative obligations were thought to be obligations of governments. There is a growing tendency, however, to view the obligations that human rights carry as entirely general, even if it is assumed that governments have the chief responsibility for ensuring that these obligations are met. Id. at 12223. 135 This was particularly evident in European community law. In 1963, in Van Gend & Loos, the Court of Justice of the European Communities ruled that a community citizen had the right to see the law protecting her or his status respected by community institutions as well as community states. See Case 26/62, Van Gend & Loos, 1963 E.C.R. 105 (1963). The citizen had this right irrespective of the wording of the rule. Christian Tomuschat, Individual Reparation Claims in Instances of Grave Human Rights Violations: The Position under General International Law, in STATE RESPONSIBILITY AND THE INDIVIDUAL REPARATIONS IN INSTANCES OF GRAVE VIOLATIONS OF HUMAN RIGHTS 4, 8 (Albrecht Randelzhofer & Christian Tomuschat eds., 1999). The subjects of that legal system [of the European community] are not only the Member States but also their nationals. Case C-6/90 and C-9/90, Francovich v. Italy, 1991 E.C.R. I-5357, 31. In Francovich, the individual was granted reparations directly. This led to the establishment of the principle that since the individual is deemed to be placed at the same level as the States which have created the Community legal order, no differentiation seems justifiable, provided that the rules in issue are clearly intended to benefit the Community citizen. Tomuschat, supra, at 9. [T]he concept of State and international responsibility to protect civilians from the effects of war and human rights abuses has yet to truly overcome the tension between the competing claims of sovereign inviolability and the right to intervene. See U.N. HIGH-LEVEL PANEL ON THREATS, CHALLENGES AND CHANGE, A MORE SECURE WORLD: OUR SHARED RESPONSIBILITY at 23, U.N. Doc. A/59/565, U.N. Sales No. E.05.I.5 (2004). For a discussion of the positivist theory of international law, see MARK W. JANIS, AN INTRODUCTION TO INTERNATIONAL LAW 248 (1988). Hersch Lauterpacht makes the point that the positivist doctrine that only states are subjects of international law has been largely rejected by the majority of international law theorists and practitioners. See HERSCH LAUTERPACHT, INTERNATIONAL LAW AND HUMAN RIGHTS 6 n.2 (1968). Like
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International Court of Justice authoritatively accepted instances of action upon the international plane by certain entities which are not States.136 And in response to this decision, Hersch Lauterpacht stated that by:
thus laying down, with emphatic clarity, that States are not the only subjects of international law, the Court did as much for liberating international law from the shackles of an obsolete and retrogressive doctrine as did its predecessor in rejecting the view that individuals 137 cannot directly acquire international rights under treaties.
In 1980, the Vienna Convention on the Law of Treaties came into force,138 compelling states to comply with treaties, including human rights treaties that focus on individuals.139 Louis Henkin echoes this principle and maintains that the concept of human rights in international law requires the state not only to respect but to ensure rights, that is, ensure respect for them by private persons.140 The result is that:
[e]very legal right of the individual is by definition an interest which in greater or lesser degree has the protection of the law. The protection is in the first instance against the violation of his rights by other individuals; and this is true of what we consider as human 141 rights no less than of other rights.
International case law has also supported this approach. As early as 1923, in the conservative Tellini case, the former Permanent Court of Justice acknowledged the importance of attributing responsibility to a state where it fails to take measures to protect its citizens: The responsibility of a State is
various other tenets of the positivist creed, the doctrine that only States are subjects of international law is unable to stand the test of actual practice. Id. at 9. This is enforced by the monist position that national and international law both are part of the same legal order and international law can, without any specific transformation, be directly applied by a national court. CARL AAGE NRGAARD, THE POSITION OF THE INDIVIDUAL IN INTERNATIONAL LAW 2526 (1962). In this sense, the individual is a subject of international law by virtue of the fact that her or his membership in the national legal system translates into a synonymous membership in the international legal system. On the other hand, the dualist school maintains that national and international law are two separate legal orders. International law is never applied directly by national courts, but must be transformed in one way or another to national law before it can be applied by national organs. Id. 136 Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion, 1949 I.C.J. 174, at 178 (Apr. 11) (discussing whether the United Nations constitutes a legal subject in international law). 137 LAUTERPACHT, supra note 135, at 130. 138 Vienna Convention on the Law of Treaties, May 23, 1969, 1155 U.N.T.S. 331. 139 Id. art. 18. [A] State is obliged to refrain from acts which would defeat the object and purpose of a treaty. Id. 140 HENKIN, supra note 5, at 9. 141 Sir Humphrey Waldock, The Legal Protection of Human RightsNational and International, in AN INTRODUCTION TO THE STUDY OF HUMAN RIGHTS 83, 83 (Sir Francis Vallat ed., 1970).
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only involved . . . if the State has neglected to take all reasonable measures for the prevention of the crime and the pursuit, arrest and bringing to justice of the criminal.142 If a state knows that a segment of its population is subject to persistent abuse, and fails to prevent harm to that group of people, the state can be said to have participated in the violation.143 In the case of X & Y v. Netherlands, the European Court of Human Rights (the ECtHR) held that the Government of the Netherlands failed to provide practical and effective protection for mentally handicapped women (over the age of sixteen) who were sexually abused.144 The ECtHR considered Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms (Convention), which guarantees the right to respect for ones private and family life.145 The Court described the objective of Article 8 as one that is larger than simply protecting the individual against arbitrary interference by public authorities.146 The ECtHR considered that in addition to this primarily negative undertaking, there may be positive obligations inherent in an effective respect for private or family life. . . . These obligations may involve the adoption of measures designed to secure respect for private life even in the sphere of the relations of individuals between themselves.147 In the case of M.C. v. Bulgaria, the ECtHR held that Bulgarias rape laws had to be amended to take into account the silent shock of rape victims who display no signs of physical struggle.148 The ECtHR clearly stated:
142 JAMES CRAWFORD, THE INTERNATIONAL LAW COMMISSIONS ARTICLES ON STATE RESPONSIBILITY 91 (2002) (citing Interpretation of Certain Articles of the Covenant, and Other Questions of International Law: Report of the Special Commission of Jurists, 5 LEAGUE NATIONS OFFICIAL J. 523, 524 (1924)). While the Court held that acts of individuals may not be attributable to the state, it nevertheless recognized that a state could be liable for an omission to act in accordance with its international obligations. While this statement relates to the central issue of foreigners in another state, it can be extrapolated to a states own citizens. The holding that a State may be responsible for the effects of the conduct of private parties, if it failed to take necessary measures to prevent those effects is not limited by the Court to the facts of the case. Id. at 92. 143 For authority for the notion that states are responsible for their international wrongful acts, see id. at 7778. 144 X & Y v. Netherlands, 91 Eur. Ct. H.R. (ser A) 11, 14 (1985). 145 Id. at 1114. Article 8 of the Convention states: Everyone has the right to respect for his private and family life, his home and his correspondence. European Convention for the Protection of Human Rights and Fundamental Freedoms art. 8, Nov. 4, 1950, 213 U.N.T.S. 221. 146 X & Y v. Netherlands, 91 Eur. Ct. H.R. (ser A) 11, 14 (1985). 147 X & Y v. Netherlands, 91 Eur. Ct. H.R. (ser A) 11, 11 (1985). 148 M.C. v. Bulgaria, 2003-XII Eur. Ct. H.R. 1. The court was persuaded that any rigid approach to the prosecution of sexual offences, such as requiring proof of physical resistance in all circumstances, risks leaving certain types of rape unpunished and thus jeopardising the effective protection of the individuals sexual autonomy. Id. at 3536.
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Positive obligations on the State are inherent in the right to effective respect for private life under Article 8; these obligations may involve the adoption of measures even in the sphere of the relations of individuals between themselves. While the choice of the means to secure compliance with Article 8 in the sphere of protection against acts of individuals is in principle within the States margin of appreciation, effective deterrence against grave acts such as rape, where fundamental values and essential aspects of private life are at stake, requires efficient criminal-law provisions. Children and other vulnerable individuals, in particular, are entitled to effective 149 protection.
The ECtHR held that the positive obligation to launch an official investigation into accusations of torturous conduct cannot be considered in principle to be limited solely to cases of ill-treatment by State agents.150 The Court emphasized that:
the obligation of the High Contracting Parties under Article 1 of the Convention to secure to everyone within their jurisdiction the rights and freedoms defined in the Convention, taken together with Article 3, requires States to take measures designed to ensure that individuals within their jurisdiction are not subjected to ill-treatment, including 151 ill-treatment administered by private individuals.
When a state has a duty to take steps to fulfill an international obligation, it is natural to ask how that state may fulfill its obligation. For example, if a state has an international obligation to eradicate gender discrimination, racism, or pollution, at what stage has it done enough to comply with its obligations? Alwyn Freeman, an authority on state responsibility, proposed that the application of international law to the acts of individuals requires the state to fulfill certain duties.152 These duties are, generally speaking, two: the use of
149 Id. at 33. The applicant had been raped and had not cried out or struggled during the rape, which resulted in the dismissal of the rape case by the Bulgarian courts. Id. at 811. The applicant maintained that Bulgarian law was deficient because it failed to address acts of rape where the victim did not display physical resistance. Id. at 24. According to Bulgarian authorities, the prosecution of rape was only possible if there was evidence of the use of physical force and evidence of physical resistance. Lack of such evidence would lead to the conclusion that sexual intercourse had been consensual. Id. at 25. The applicant argued that she suffered from frozen fright and was therefore unable to resist. Id. at 1516, 25. 150 Id. at 3334. 151 Id. at 33. Therefore, within the context of rape, the European Court of Human Rights held that States have a positive obligation inherent in Articles 3 and 8 of the Convention to enact criminal-law provisions effectively punishing rape and to apply them in practice through effective investigation and prosecution. Id. at 34. 152 ALWYN V. FREEMAN, THE INTERNATIONAL RESPONSIBILITY OF STATES FOR DENIAL OF JUSTICE 27 (1938).
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due diligence in the prevention of injury . . .; and proper measures of repressing crime, or remedying wrong, as the case may be, in the event that such acts nevertheless occur.153 The Inter-American Court of Human Rights developed the standard of due diligence for states in 1988 by holding:
An illegal act which violates human rights and which is initially not directly imputable to a State (for example, because it is the act of a private person . . .) can lead to international responsibility of the State, not because of the act itself, but because of the lack of due diligence to prevent the violation or to respond to it as required by 154 the [American Convention on Human Rights].
In 1993, the U.N. General Assembly applied the due diligence standard in DEVAW, enjoining states to [e]xercise 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.155 This standard was utilized once again with respect to violence against women by the first Special Rapporteur on Violence Against Women, Radhika Coomaraswamy.156 In her report on violence against women, Coomaraswamy confirmed that domestic violence is an underestimated cause of poor health, continued economic and social hardship, and mortality of women.157 She demonstrated that the most serious harm for women is that which has been the most neglected by states.158 In her final report to the U.N., Coomaraswamy revitalized the due diligence standard as follows:
[T]he standard for establishing State complicity in violations committed by private actors is more relative. Complicity must be demonstrated by establishing that the State condones a pattern of abuse through pervasive non-action. Where States do not actively engage in acts of domestic violence or routinely disregard evidence of murder, rape or assault of women by their intimate partners, States
Id. Velsquez Rodrguez v. Honduras, 1988 Inter-Am. Ct. H.R. (ser. C) No. 4, at 30 (July 29, 1988), available at http://www.corteidh.or.cr/docs/casos/articulos/seriec_04_ing.pdf. 155 DEVAW, supra note 91, art. 4(c). 156 Report of the Special Rapporteur on Violence Against Women, supra note 3, at 911, 3840. 157 Id. at 1618. 158 Id. (presenting statistical data on the battering of women in various countries in accordance with Commission on Human Rights resolution 1995/85 and detailing the extent of violence against women and the inadequacy of governmental and societal response, as well as providing recommendations for reform).
154 153
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generally fail to take the minimum steps necessary to protect their female citizens rights to physical integrity and, in extreme cases, to life. This sends a message that such attacks are justified and will not be punished. To avoid such complicity, States must demonstrate due diligence by taking active measures to protect, prosecute and punish 159 private actors who commit abuses.
It is important to distinguish between the abusers acts of violence and the states own conduct; the state neglected to prevent the violence, protect the victim, and where necessary, prosecute the abuser.160 While the violence occurs between intimates, it continues unchecked by the state and the state becomes a silent agent, a participant in the pain, and an entity partly responsible for its perpetuation. For these reasons, the states omission itself constitutes an internationally wrongful act in violation of international law. Thus, states have an international legal duty to protect individuals from public and private acts of harm. B. Extent of the Duty The duty is that states take reasonable steps and implement basic measures that fit within the peculiar context of domestic violence. Such steps include assessing legislation and determining whether criminal or civil sanctions are preferable to deploying police services to react proportionately and effectively to extreme forms of domestic violence, and allocating funding to NGOs, which generally provide the most meaningful support to victims of systemic intimate violence. Ideally, governments should be required to allocate a percentage of their annual budget to aid victims of systemic intimate violence and at least part of this budget should be housed in the health sector.161 A victim of systemic
159 Id. at 910. This echoes the Special Rapporteur on State Responsibility, James Crawford, who stated that the state has a positive duty not to authorize or allow torture. James Crawford, Revising the Draft Articles on State Responsibility, 10 EUR. J. INTL L. 435, 440 (1999). For a brief discussion of the due diligence standard within the context of systemic intimate violence, see MENS VIOLENCE, supra note 29, at 13 (describing the due diligence standard as obliging the state to take all the necessary measures to combat violence against women, whoever the perpetrator may be). 160 See Dawn J. Miller, Holding States to Their Convention Obligations: The United Nations Convention Against Torture and the Need for a Broad Interpretation of State Action, 17 GEO. IMMIGR. L.J. 299, 318 (2003). 161 See MENS VIOLENCE, supra note 29, at 43 (proposing that municipalities create specific action programs as a guide to social services when handling cases of domestic violence). General Recommendation No. 19 requires states to establish or support bodies that provide protection or safe haven for women (including refugees) who have been abused, including being able to identify and communicate with the appropriate local authorities and non-governmental services. Id. Often, the victims first destination is a shelter. Legal
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intimate violence needs a place to go, a shelter that will hide her identity, provide her with care, and accept her and her children, be they healthy or disabled. She may need a haven for her companion animals or protection for her family; she may need the presence of an official, a police officer, or a community leader to explain the unlawfulness of the violence to the perpetrator. She may also need a state-sponsored lawyer who will obtain protection orders, maintenance orders, and custody orders, and assist her when they are breached. And she may need her employer to provide her with sufficient time to pursue these legal remedies. State officials, on the other hand, need guidance. Judges must be informed to better understand the peculiarity of the continuum of systematic intimate violence, the power imbalance within the relationship, and the economic consequences of legal decisions. Police officials need preparation and resources to address the severity of the violence and the complexity of the intimacy. The only way a state can truly assist victims of systemic intimate violence is by connecting all of these agencies. A domestic violence call, therefore, ought to trigger a series of options for the victim, which work in tandem with the diverse needs of victims of systemic intimate violence. If this is achieved, systemic intimate violence can be impeded.
Responses, supra note 13, at 1506 (noting that the shelter has been identified as the battered womans first encounter with the legal system after she flees her assailant). In Sweden, non-profit womens shelters are still the most important actors in providing help, support and protection to women who survive violenceeven though the municipal authorities and the social services bear the ultimate responsibility. MENS VIOLENCE, supra note 29, at 43. In Sweden, one-third of women who have suffered systemic intimate violence have turned to agencies other than the police for assistance, including hospitals, psychiatric clinics, nongovernmental womens shelters, crime-victim centers, and emergency social services. Therefore, where shelters are run by private organizations or non-governmental institutions, the governments should provide financial support. Id. The CEDAW Committee confirms that a state can be held responsible for the conduct of non-state actors and imposes liability on Hungary for the following: For four years and continuing to the present day, the author has felt threatened by her former common law husbandthe father of her two children. The author has been battered by the same man, i.e. her former common law husband. She has been unsuccessful, either through civil or criminal proceedings, to temporarily or permanently bar L.F. from the apartment where she and her children have continued to reside. The author could not have asked for a restraining or protection order since neither option currently exists in the State party. She has been unable to flee to a shelter because none are equipped to take her in together with her children, one of whom is fully disabled. None of these facts have been disputed by the State party and, considered together, they indicate that the rights of the author under articles 5 (a) and 16 of the Convention have been violated. A.T. v. Hungary, CEDAW, Communication No. 2/2003, 9.4, U.N. Doc. CEDAW/C/32/D/2/2003 (Jan. 26, 2005), available at http://www.un.org/womenwatch/daw/cedaw/protocol/decisions-views/ CEDAW%20Decision%20on%20AT%20vs%20Hungary%20English.pdf.
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The next issue is whether it is at all beneficial to turn to international law to improve state responses to domestic violence. The following section discusses whether it is possible to apply this theory to something as personal and intimate as domestic violence. V. THE APPROPRIATENESS OF PUBLIC INTERNATIONAL LAW VIS--VIS DOMESTIC VIOLENCE The skeptic may be concerned that international law is a weak body of law, proving ineffective especially in the realm of human rights. The skeptic also may claim that international law is a fallacy based on a spurious interpretation of international affairs as legal rather than political. It is true that international human rights law lacks traditional enforcement mechanisms and has failed in many ways.162 Yet, even if the criticisms of international law are correct (which I do not reject in toto), setting legal standards at a global rather than a purely national level remains a prevalent practice. This is because enforcement by an international body is not the only way international law operates. The successful implementation of international human rights law occurs also through an informal, ad hoc incorporation of international legal principles in judicial, legislative, and non-governmental activities of a country. This is a theory proposed both by scholars of international law and international relations, such as Harold Koh, Michael Reisman, Sidney Tarrow, Margaret Keck, and Kathryn Sikkink.163 How do these theories operate to improve states approaches toward systemic intimate violence? International law is a persuasive force in galvanizing change through assimilative reform strategies, in terms of which states are encouraged to adopt a particular practice or principle through a slow inculcation of the value without using coercive means.164
162 See Douglas Donoho, Human Rights Protection in the Twenty-First Century, 35 GA. J. INTL & COMP. L. 1, 5 (2006). 163 See infra notes 16465 and accompanying text. 164 This may be achieved through discourse with nation-states or by working with local organizations to implement the value in question. For a discussion on the effect of such reform strategies in the case of FGC, see Elizabeth Heger Boyle & Sharon E. Preves, National Politics as International Process: The Case of AntiFemale Genital Cutting Laws, 34 LAW & SOCY REV. 703, 713 (2000). Fundamentally, assimilative strategies seek to persuade nation-states to adopt the dominant cultural model by legitimating anti-FGC mobilization and delegitimating support for female genital cutting. Id. The idea that international law operates through several levels of actors and factors is evident in Kenneth Waltzs explanation of international relations: the
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International human rights law comprises a number of actors, including effective non-governmental actors. Not to overstate the potency of nongovernmental actors, but these groups, coupled with the benefits of technology, publication, and lobbying, have oiled the gears of global action. International and local organizations work in tandem to apply international human rights in local settings. This vertical, non-coercive manifestation of the international to the national affects incremental changes in national legal and policy systems. This persuasive force operates through a combination of specific functions and functionaries. The functions of international law that are relevant to domestic violence include expressive, implementing, and expanding functions. The functionaries include international actors, international bodies, and national bodies. I discuss each of these functions and the way in which functionaries carry them out below. A. Expressive Function The expressive function of international law refers to the articulation of norms. This is the process by which international law draws a conceptual boundary around specific conduct and prohibits it.165 As a result, previously lawful actions are now categorized as human rights violations and previously condoned patterns of behavior are now condemned. The express condemnation of certain conduct produces cognitive focal points around which international bodies, transnational organizations, states, and individuals can coalesce.166 External points of reference give litigators and activists clearly expressed standards against which to compare the government behavior. For example, a series of international cases before the International Criminal Tribunals for the Former Yugoslavia and Rwanda (the ICTY and ICTR, respectively),167 were used as precedent in the case before the ECtHR,
international system, the state, individuals, and groups that make up the state operate interactively and not exclusively, like a layer cake. Harold Hongju Koh, Why Do Nations Obey International Law?, 106 YALE L.J. 2599, 2649 (1997). 165 An example of this is Raphael Lemkins formulation of the word genocide to articulate the loss occasioned by the Holocaust. See Kenneth W. Abbott, International Relations Theory, International Law, and the Regime Governing Atrocities in Internal Conflicts, 93 AM. J. INTL L. 361, 372 (1999). Transnational organizations often are responsible for the expression of international norms. See MARGARET E. KECK & KATHRYN SIKKINK, ACTIVISTS BEYOND BORDERS: ADVOCACY NETWORKS IN INTERNATIONAL POLITICS 25 (1998). Networks generate attention to new issues and help set agendas when they provoke media attention . . . this stage of influence may require a modification of the value context in which policy debates take place. Id. 166 Abbott, supra note 165, at 372. 167 See supra notes 99101 and accompanying text.
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M.C. v. Bulgaria,168 which changed Bulgarias national rape laws. In the cases of Prosecutor v. Akayesu and Prosecutor v. Kunarac,169 rape was re-assessed and the defense of consent widely redefined so that the context of fear, anxiety, and enslavement were recognized as factors that would make it impossible for a victim to resist the rape. Apparent acquiescence, therefore, could not constitute consent. Similarly, in M.C. v. Bulgaria, the court understood that the victims fear may be so profound that she would not be able to resist. It recognized that silence and inaction are not acquiescence or consent and that the criminal law needed to reflect this.170 Therefore, the international articulation of norms offsets the silence surrounding the violation of the rights of marginalized groups and individuals. Acting as a voice for the muted, international law is especially effective where governments are inaccessible or deaf to groups whose claims may nonetheless resonate elsewhere. [I]nternational contacts can amplify the demands of domestic groups, pry open space for new issues, and then echo back these demands into the domestic arena.171 If there is a supra-standard that prohibits systemic intimate violence, the tenets of such a standard may be applied nationally through legislation and court decisions.172 However, if there is no enunciated universal standard regarding systemic intimate violence, the development of national legal systems loses a source of law that has become most relevant in the global health context.173 It is in this way that the global supplements the domestic,
2003-XII Eur. Ct. H.R. 1. See supra note 148 and accompanying text. In the 1998 case of Prosecutor v. Akayesu, the International Criminal Tribunal for Rwanda, for the first time in legal history, tried and convicted an individual for genocide and crimes against humanity due to his orchestration and encouragement of mass rape of women. Case No. ICTR-96-4-T, Judgment, 461, 564, 581, 69394, 70506 (Sept. 2, 1998). See James R. Mchenry III, The Prosecution of Rape Under International Law, 35 VAND. J. TRANSNATL L. 1269, 1272, 1284 (2002). See also Russell-Brown, supra note 96. This decision was followed by the judgment of the ICTY in the case of Prosecutor v. Kunarac, which cemented the Akayesu precedent, confirming widespread rape as a war crime and a crime against humanity. Case Nos. IT-96-23-T & IT-96-23/1-T, In the Trial Chambers, 883890 (Feb. 22, 2002). In contrast to the Akayesu decision, the Kunarac judgment is a more comprehensive legal description of mass rape as both a war crime and a crime against humanity. 170 M.C. v. Bulgaria, 2003-XII Eur. Ct. H.R. 1. See supra notes 14849 and accompanying text. 171 KECK & SIKKINK, supra note 165, at 221. 172 For the most part, international human rights law is implemented by and through domestic courts. See Judge Edward D. Re, The Universal Declaration of Human Rights: Effective Remedies and the Domestic Courts, 33 CAL. W. INTL L.J. 137, 15356 (2003). 173 DANIEL G. PARTAN, THE INTERNATIONAL LAW PROCESS: CASES AND MATERIALS 82425 (1992).
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working in tandem with the legal, political, and health infrastructures to improve a states responses to victims of this violence.174 B. Implementing Function The actualization of international law can occur as a result of a progression of factors. The first is the publication by transnational organizations of events, which either are recognized as a contravention of international law or a shock to the conscience of humankind.175 These organizations propel sentiment and galvanize public reaction or outcries.176 This usually is followed by a change in state law and policy.177 The increasing prohibition in national legal systems against FGC is an example of this progression. In the case of In re Kasinga, the practice of FGC was acknowledged as a possible basis for asylum due to the results of permanent disfigurement and the risk of serious, potentially life-threatening complications.178 Without the internationalization of FGC, it is unlikely that this outcome, incremental as it may be, would have occurred.179
174 Resnik, supra note 14, at 623. State, federal, and transnational laws are all likely to be relevant to pursuing womens right to safety. Id. The question of whether international law works is widely debated. See Harold Hongju Koh, How Is International Human Rights Law Enforced?, 74 IND. L.J. 1397, 1401 (1999) (proposing that the relationship between enforcement and obedience is premised on the notion that the most effective form of law-enforcement is not the imposition of external sanction, but the inculcation of internal obedience.). 175 See Theodor Meron, Rape as a Crime Under International Humanitarian Law, 87 AM. J. INTL L. 424, 424 (1993) (describing the new role of the media and the benefits of instant reporting from the field, which has resulted in rapid sensitization of public opinion, greatly reducing the time lapse between the perpetration of such tragedies and responses to them.). 176 This was the situation in the worlds reaction to the genocides in Rwanda and Yugoslavia and the call for Gender Justice. See Jennifer Green et al., Affecting the Rules for the Prosecution of Rape and Other Gender-Based Violence Before the International Criminal Tribunal for the Former Yugoslavia: A Feminist Proposal and Critique, 5 HASTINGS WOMENS L.J. 171, 175 (1994). A pronounced international outcry for action to punish the perpetrators of these brutal abuses placed tremendous pressure on the U.N. to establish an international tribunal. Id. 177 International law also may be implemented through assimilative means. Assimilative techniques include holding conferences, working with grass roots agencies, and discussing legislative and political changes with governments. For a discussion of these mechanisms, see Boyle & Preves, supra note 164, at 71315. 178 See In re Fauziya Kasinga, 21 I. & N. Dec. 357, Interim Dec. 3278 (B.I.A.), 1996 WL 379826. The basis of the Board of Immigrations decision was that the claimant could not escape the FGC procedure and could not expect assistance from her government. See Megan Annitto, Comment, Asylum for Victims of Domestic Violence: Is Protection Possible After In Re R-A-?, 49 CATH. U. L. REV. 785, 795 (2000). 179 While the practice of FGC continues, legal and extra-legal actions have improved. Most western countries and many of the twenty-eight countries in which FGC is prevalent have outlawed the practice. For a discussion of the legal status of FGC/M in various regions, see Kirsten Bowman, Comment, Bridging the Gap in the Hopes of Ending Female Genital Cutting, 3 SANTA CLARA J. INTL L. 132, 145 (2004). For a discussion
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Global standards regarding systemic intimate violence could guide states to take basic remedial steps against such violence (e.g., enacting legislation that allows for maintenance orders to be made at the same time as a restraining order or creating accessible shelters that accommodate the divergent needs of women (i.e., child care facilities, disability services, and medical/psychological assistance)). C. Expansive Function of International Law The third function of international law is its role in expanding rights and concomitant obligations. Certain acts of harm exist for which we are deficient
of the history of opposition to FGC, see Boyle & Preves, supra note 164, at 70810. A similar phenomenon called acid burning occurs in Bangladesh. Liz Welch, Uppity Women, MS. June 1999, at 3334, http://www. msmagazine.com/jun99/uppitywomen-jun.asp. In response to high-profile cases of violence against women, Bangladesh revealed to the CEDAW committee that: disagreements over dowry, which was not allowed under Islam, were a significant source of violence, which sometimes resulted in death. The Government of Bangladesh had enacted severe punishments, including execution for murder of the wife. Those recent laws followed sensational media coverage of some cases of disfigurement by acid and violence and had considerably decreased instances of abuse against women. U.N. Comm. on the Elimination of Discrimination Against Women, Concluding Observations: Bangladesh, 565, GAOR, 42d Sess., Supp No. 38, U.N. Doc. A/42/38 (May 15, 1987) [hereinafter CEDAW Forty-Second Session]. Acid burning in Bangladesh received international attention in the late 1970s and early 1980s. This exposure culminated in a 1997 workshop for survivors of acid attacks and international assistance for plastic surgery recovery. Acid attacks have been on the rise in Bangladesh since the first was reported in 1976. Naripokkho, a Dhaka-based womens activist organization founded in 1983, began in 1996 to track acid violence reported in local papers. The number47 that yearsurged to 130 two years later. In April 1997, Naripokkho sponsored a workshop for acid survivors. Bina, then 15, was among nine participants: Selina, 11, was the youngest, and Monira, 18, the eldest. Six girls, including Bina, were burned in incidents involving rejected suitorsthe most common scenariowhile two were burned by their husbands for not obtaining larger dowries. When Nargis, 14, refused to become her neighbors second wife, he sprayed her genitals with acid while she was in the bathroom that she and her brother shared with the neighbors family. Welch, supra. Transnational organizations recognized a component of the practice that binds women to rely on the male members of their community for protection, support, and respect. See Catherine L. Annas, Irreversible Error: The Power and Prejudice of Female Genital Mutilation, 12 J. CONTEMP. HEALTH L. & POLY 325, 34950 (1996). The organizations realized that simple solutions and traditional legal remedies were inadequate. The search for effective mitigation culminated in the implementation of a number of more creative remedies: discussions were held between local religious and cultural leaders and local developmental organizations (see Bowman, supra, at 9); alternative sustainable sources of income were created for women who did not want to undergo the procedure and were able to escape it; and the internationalization of FGC enabled women who feared circumcision to obtain asylum in the United States and other countries. For a discussion of the relevant case law and legal requirements, see Patricia A. Armstrong, Female Genital Mutilation: The Move Toward the Recognition of Violence against Women as a Basis for Asylum in the United States, 21 MD. J. INTL L. & TRADE 95 (1997).
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in language and law. These types of harm are peculiar and manifest in ways that appear to be solved by existing law but, in truth, are not. They fall outside the purview of existing laws, and the harm continues without restraint. International law identifies such harm and assists in the development of steps that states can take to prevent it. An example of this is the internationalization of enforced disappearances. Enforced disappearances are a peculiar harm, placing them outside the web of national legal mechanisms.180 The expansion of international human rights law to include a prohibition against enforced disappearances was initiated predominantly by the events in Argentina after a military coup in 1976.181 From 1976 to 1983, the so-called Dirty War in Argentina resulted in the disappearance of over 9,000 people (although many claim the figure is closer to 30,000).182 At the time, no label existed for the curious events comprising enforced disappearances. Individuals were arrested or kidnapped based on allegations of political dissidence; no trials were held; and, when relatives and friends inquired after a detainee, the official state response was silence.183 No legal remedies existed. The law against summary execution did not apply because there was no evidence that the disappeared individual had been killed. Because an essential element of enforced disappearances is government denial of the abduction, habeas corpus relief and other institutional safeguards to protect individuals from abuse [were] rendered completely ineffective.184 Often, attempts to obtain information about the disappeared individuals were met with intimidation, creating an environment of fear for those left behind.185 Existing laws, therefore, were rendered nugatory.
180 See generally International Convention for the Protection of All Persons from Enforced Disappearance, Sept. 23, 2005, U.N. Doc. E/CN.4/2005/WG.22/WP.1/Rev.4. 181 KECK & SIKKINK, supra note 165, at 103 (describing the activities of Amnesty International in demonstrating that disappearances were part of a deliberate government policy by which the military and the police kidnapped perceived opponents, took them to secret detention centers where they tortured, interrogated, and killed, then secretly disposed of their bodies.). Amnesty International teamed up with music artists U2, resulting in U2s rendition of the actions of the Mothers of Plaza de Mayo in the song One Tree Hill. Art for Amnesty: U2 Receives Highest Human Rights Award, Amnesty International Australia, Nov. 12, 2005, http://action.amnesty.org.au/news/comments/853/. 182 See infra note 185 and accompanying text. 183 See Argentine Mothers Mark 30 Years, BBC NEWS, Apr. 30, 2007, http://news.bbc.co.uk/2/hi/ americas/6608871.stm. 184 Juan E. Mendez & Jose Miguel Vivanco, Disappearances and the Inter-American Court: Reflections on a Litigation Experience, 13 HAMLINE L. REV. 507, 511 (1990). 185 IAIN GUEST, BEHIND THE DISAPPEARANCES: ARGENTINAS DIRTY WAR AGAINST HUMAN RIGHTS 26 (1990).
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Over time, however, an equally curious response emerged: the mothers of the disappeared, finding no assistance from the authorities, turned to the world in what became a weekly parade, held for the first time in the Plaza de Mayo.186 The women, who became known as the Mothers of Plaza de Mayo, rallied with signs asking the outside world to help; they stated that [e]very place is closed to us. Everywhere they shut us out. We beg you to help us. We beg you.187 International organizations, individuals, and governments responded.188 Framing the harm in the manner described above resulted in an increased understanding of the peculiar manifestation of enforced disappearances, for Knowledge of the facts and an which no legal remedy existed.189 understanding of the harm led to international discussions with the result that the internationalization of enforced disappearances gave a labelwith a concomitant set of toolsto a previously amorphous phenomenon. Systemic intimate violence and enforced disappearances are forms of harm that have peculiar elements; the peculiarities result in victims of systemic intimate violence often falling between the cracks of ordinary domestic violence laws and criminal laws against murder or grievous bodily harm. These qualitative quirks preclude the effective application of existing national laws. New policy and legislative mechanisms are required to circumvent these difficulties. Having established the benefits of international law, the next question is whether this works in practice.
Argentine Mothers Mark 30 Years, supra note 183. See Luis Clemens, Argentinas Dirty War: An Ugly Episode That Wont Die, CNN, Mar. 2, 1998, http://www4.cnn.com/WORLD/9803/02/argentina.dirty.war/. 188 KECK & SIKKINK, supra note 165, at 17.
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The Mothers of the Plaza de Mayo marched in circles in the central square in Buenos Aires wearing white handkerchiefs to draw symbolic attention to the plight of their missing children. The [transnational] network also tried to use both material and moral leverage against the Argentine regime, by pressuring the United States and other governments to cut off military and economic aid, and by efforts to get the UN and the Inter-American Commission on Human Rights to condemn Argentinas human rights practices. Id.
189 For a discussion of the importance and efficacy of properly framing an issue, see KECK & SIKKINK, supra note 165, at 17, 27.
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VI. EVIDENCE OF CHANGE A. Description of Analysis The increasing international attention to domestic violence already has improved states responses to vulnerable women. Therefore, it makes sense to pursue the internationalization of systemic intimate violence. I demonstrate this with a before and after analysis. I examine the reports submitted by three states, Mexico, Nicaragua, and Sweden, to the CEDAW Committee before and after the 1993 Declaration on the Elimination of Violence against Women. DEVAW was the first time violence against women in general was recognized officially as a violation of womens rights (as opposed to discrimination against women).190 By comparing earlier and later CEDAW reports (substantiated by the work of U.N. agencies and NGOs), one can see a change in the priority domestic violence receives from the reporting state, the CEDAW Committee, and the intervening NGOs. B. Before DEVAW Prior to the early 1990s, the CEDAW Committee made very little reference to violence against women, including domestic violence. Most country reports presented to CEDAW in the mid-1980s included very little evidence of violence against women. Where reference was made to violence against women, it usually was in the context of prostitution or rape, which are in the original CEDAW text.191 In the reports submitted to the CEDAW Committee in 1984, many CEDAW Committee members raised the issues of lower wages for traditionally female jobs, the double workload of women, and facilities to encourage men to play an equal role in the family.192 Little emphasis was placed on violence in the family.
190 As discussed above, CEDAW had no provision relating directly to violence against women. See text accompanying supra note 60. While General Recommendation 19 interprets the provisions of CEDAW as including violence against women, no prohibition exists in the text itself. The closest reference to violence against women probably exists in Article 6, regarding prostitution and the trafficking of women. State parties shall take all appropriate measures, including legislation, to suppress all forms of traffic in women and exploitation of prostitution of women. CEDAW, supra note 60, art. 6. 191 See, e.g., U.N. Comm. on the Elimination of Discrimination Against Women, GAOR, 41st Sess., Supp. No. 45, 102, U.N. Doc. A/41/45 (Apr. 4, 1986) [hereinafter CEDAW Forty-First Session]. This is not to say that violence against women never arose during this period. The Norway report to CEDAW is one of the few that engages domestic violence. U.N. Comm. on the Elimination of Discrimination Against Women, GAOR, 39th Sess., Supp. No. 45, 27680, U.N. Doc. A/39/45 (June 27, 1984) [hereinafter CEDAW ThirtyNinth Session]. 192 CEDAW Thirty-Ninth Session, supra note 191, 4063.
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For example, in 1984, in discussing the report of Hungary, the CEDAW Committee placed significant emphasis on the mutual support of spouses within the family.193 Aware of the difficulties women face in private, the CEDAW Committee nonetheless did not include violence in their investigation. The same is true of the CEDAW Committees discussions in 1986 with respect to Mongolia, Ecuador, and El Salvador.194 It seems that violence against women simply was not a dominant theme, and only became a point of consideration with the increase in dialogue regarding violence and women in 1993.195 C. After DEVAW The early 1990s saw an increase in global attention to the issue of violence against women. In 1993, the activism around violence against women culminated in DEVAW, which was the first international instrument to cite violence against women as an international human rights violation.196 During this period, the CEDAW Committee began to shift its focus. The shift is evident in the states reports to the CEDAW Committee. A wide range of nations were questioned about their domestic violence policies, including Greece, Korea, Sri Lanka, and Spain.197 Even though DEVAW is deficient in its enforcement capabilities, there is evidence that certain states began to improve their domestic violence legislation and policies in the period following the adoption of DEVAW.198 In order to determine whether this change in focus by the CEDAW Committee and nations was related to the international pressure surrounding
193 See, e.g., id. 1868 (reviewing Hungary). [T]here seemed to be no institution(s) to assist women in the exercise of their rights and there was no information on the capacity of the court system to provide remedies for womens grievances. Id. 194 See id. 22664 (reviewing Ecuador); 31456 (reviewing El Salvador). See also CEDAW FortyFirst Session, supra note 191, 69110. While violence was rarely raised in the CEDAW discussions in the mid-1980s, the committee was not insensitive to many of the more opaque issues facing women within their private lives (as opposed to public/political issues). See CEDAW Thirty-Ninth Session, supra note 191, 230. As to the provisions regarding the family, several experts requested more information on divorce, family planning programmes, pre- and post-natal counseling, abortion and assistance to working mothers. In that regard, it was asked whether the Government understood the dual function or the double burden of women and whether it had provided measures to equalize the situation at home. Id. 195 DEVAW, supra note 91. 196 Id.; see also Report of the Special Rapporteur on Violence Against Women, supra note 3. 197 See, e.g., CEDAW Committee Forty-Second Session, supra note 179, 65129 (reviewing Greece); 13084 (reviewing Korea); 185237 (reviewing Sri Lanka); 238304 (reviewing Spain, which had established seventeen shelters for abused women); and 370451 (reviewing France). 198 See Report of the Special Rapporteur on Violence Against Women, supra note 3, at 99, 10417.
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violence against women, I examined the reports of three nations (Mexico, Nicaragua, and Sweden) and supplementary shadow reports submitted to the CEDAW Committee before and after DEVAW. In analyzing the development of Mexicos approach regarding violence against women, I considered three reports made by the government of Mexico to the CEDAW Committee in 1984, 1998, and 2002.199 I augmented this information with reference to two shadow reports in 1997 and 2002, and a report to the Organization of American States regarding the violence against women in Ciudad Jurez, Chihuahua, in 2002.200 These documents reveal that prior to 1994, there is no evidence of a specific policy or legislation to protect women from gender-based violence. After 1994, however, violence against women begins to appear on the agenda of Mexico as a component of achieving gender equality. Toward the end of the 1990s, it appears that Mexico improved its domestic violence laws, but at the same time there is an increase either in the reporting or in the actual rate of violence against women. In considering the development of Nicaraguas approach to systemic intimate violence, I examined Nicaraguas first, fourth, and fifth reports to the CEDAW Committee, which were reviewed in 1987 and 2001 (when reports four and five were considered by the CEDAW Committee).201 I obtained
199 See CEDAW Thirty-Ninth Session, supra note 191, 6789, 200245; U.N. Comm. on the Elimination of Discrimination Against Women, Concluding Observations: Mexico, 354427, GAOR, 53d Sess., Supp. No. 38, U.N. Doc. A/53/38/Rev.1 (May 14, 1998); U.N. Comm. on the Elimination of Discrimination Against Women, Concluding Observations: Mexico, 410453, GAOR, 57th Sess., Supp. No. 38, U.N. Doc. A/57/38/Rev.1 (Aug. 6, 2002). 200 See WOMENS REPRODUCTIVE RIGHTS IN MEXICO: A SHADOW REPORT, supra note 37; Letter from the Center for Reproductive Rights (formerly Center for Reproductive Law and Policy) to the Committee on the Elimination of Discrimination Against Women (June 19, 2002) (entitled Supplementary Information on Mexico Scheduled for Review by CEDAW in August, 2002), available at http://www.crlp.org/pdf/sl_mexico_ eng_2002.pdf; Inter-American Comm. on Human Rights: Organization of American States, The Situation of the Rights of Women in Ciudad Jurez, Mexico: The Right To Be Free From Violence and Discrimination, OEA/Ser.L/V/II.117, Doc. 44 (Mar. 7, 2003), available at http://www.cidh.oas.org/annualrep/2002eng/chap. vi.juarez.htm. 201 CEDAW Forty-Second Session, supra note 179, at 169213; U.N. Comm. on the Elimination of Discrimination Against Women, Concluding Observations: Nicaragua, 277318, GAOR, 56th Sess., Supp. No. 38, U.N. Doc. A/56/38 (2001). The CEDAW committee considered the fourth and fifth periodic reports of Nicaragua, which covered the period from 1991 to 1998. This report covers both the fourth and the fifth periodic reports of Nicaragua, submitted to CEDAW on terms of Article 18 on August 28, 1998 and September 9, 1999, respectively. See U.N. Comm. on the Elimination of Discrimination Against Women, Fourth Periodic Reports of State Parties: Nicaragua, CEDAW/C/Nic/4 (Aug. 28, 1998), available at http://www.un.org/womenwatch/daw/cedaw/25sess.htm (then follow CEDAW/C/Nic/4 hyperlink); U.N. Comm. on the Elimination of Discrimination Against Women, Fifth Periodic Reports of State Parties: Nicaragua, CEDAW/C/Nic/5 (Sept. 9, 1999), available at http://www.un.org/womenwatch/daw/cedaw/25sess. htm (then follow CEDAW/C/Nic/5 hyperlink).
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additional information from four independent studies on domestic violence in Nicaragua. In 1998, in celebration of the U.N. Declaration of Human Rights, several United Nations agencies launched a campaign to stop violence against women in the Caribbean and Latin America.202 This resulted in the 1998 UNDP Report on Violence against Women.203 An analysis of gender-based violence in Nicaragua formed part of this report, providing a series of relevant statistics.204 Based upon these findings, three subsequent high-profile reports (namely, the 2000 Candies in Hell Report,205 the 2001 OMCT CEDAW Shadow Report,206 and the 2002 RHR Nicaragua Report207) were undertaken, which form part of this analysis.
202 See United Nations Inter-Agency Campaign on Womens Human Rights in Latin America and the Caribbean, A Life Free of Violence: Its Our Right, http://www.freeofviolence.org/index.html. 203 Id. 204 See United Nations Inter-Agency Campaign on Womens Human Rights in Latin America and the Caribbean, National Reports: Nicaragua, http://www.freeofviolence.org/nicaragua.htm. 205 Ellsberg et al., supra note 28, at 15951610. The Ellsberg article provides sophisticated insight into domestic violence in Nicaragua. In collaboration with Sweden, the study combined the narrative of two survivors of domestic violence and used them to interpret the statistical data gathered in a manner similar to that of the Swedish report on domestic violence. The study was conducted in the municipality of Len because, as it shares general characteristics with the rest of the Pacific Coast of Nicaragua, in which the majority of the Nicaraguan population is located, it is likely that data are representative of at least the Pacific Coast region. Id at 1607. The location of the research, the substance of the questions and the formation of the sample population are indicators of a high standard of research ethic. The survey comprised 488 women between the ages of fifteen and forty-nine. In addition, [i]n-depth interviews with formerly battered women were performed and narratives from these interviews were analyzed and compared with the survey data. Id. at 1595. This type of collaborative effort, together with the detailed methodological approach, confirms the reliability of the information and demonstrates an attempt to meet respectable standards of accountability and accuracy. In compiling the report, 488 women were interviewed and 360 of the interviewees had been married or had cohabited with a man at some point (either before or during the time of the interview). Among women who had been married, 188 or
52% reported having experienced physical partner abuse at some point in their lives. Median duration of abuse was 5 years. A considerable overlap was found between physical, emotional and sexual violence, with 21% of ever-married women reporting all three kinds of abuse. Thirty-one percent of abused women suffered severe physical violence during pregnancy. The latency period between the initiation of marriage or cohabitation and violence was short, with over 50% of the battered women reporting that the first act of violence took place within the first 2 years of marriage. Id. at 1595. Twenty percent of the ever-married women reported experiencing severe violence during the previous 12 months. Id. at 1599. 206 OMCT CEDAW Report on Nicaragua, supra note 31. 207 Melinda Leonard, Post-Conflict Situation in Nicaragua: A Desk Study Overview, in IF NOT NOW, WHEN? ADDRESSING GENDER-BASED VIOLENCE IN REFUGEE, INTERNALLY DISPLACED, AND POST-CONFLICT SETTINGS: A GLOBAL OVERVIEW 117, 12021 (Jeanne Ward ed., 2002), available at http://www.rhrc.org/pdf/ nicaragua.pdf.
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I analyzed the following reports in respect of Swedens laws vis--vis domestic violence: the 1984 CEDAW Report,208 the 1993 CEDAW Report,209 the 2000 CEDAW Report,210 the 2002 Captured Queen Report,211 and the 2004 Amnesty International Report on Intimate Violence in Sweden.212 The reports of all three nations show the same pattern: prior to 1993, domestic violence was a low-profile concern. After 1993, it became a present and, at times, central focus of the reports. I conclude, therefore, that it is likely that the international evocation of a norm against violence against women affected the topics discussed in CEDAW Committee meetings and, most importantly, the changes implemented by the nations themselves. This analysis is limited to a cross section of three nations and is merely a superficial reading of what laws existed before and after DEVAW. However, it is possible to glean changes in countries public approach toward violence against women, due in part to the activities of NGOs, governments, and/or international bodies. This substantiates the notion that the internationalization of systemic intimate violence may improve the manner in which nations address systemic intimate violence, especially if one considers that change happens slowly and that it is only the third decade of creating laws to mitigate violence against women. After DEVAW, Nicaragua, Mexico, and Sweden improved their legislation and policies with respect to violence against women. Nevertheless, systemic intimate violence persists. In part, this is due to the fact that many state institutions prioritize needs other than gender-based violence. In addition, cultural reform vis--vis gender roles has been slow. Whatever the reason, the health and well-being of women is still not a priority in many communities within these nations. However, one cannot ignore the progress in the CEDAW country reports from the absence of reference to domestic violence in the early 1980s to the
CEDAW Thirty-Ninth Session, supra note 191, 200245. U.N. Comm. on the Elimination of Discrimination Against Women, Concluding Observations: Sweden, 474522, U.N. Doc. A/48/38 (1993), available at http://www1.umn.edu/humanrts/cedaw/ sweden1993.html. 210 U.N. Comm. on the Elimination of Discrimination Against Women, Fifth Periodic Reports of State Parties: Sweden, at 32, CEDAW/C/Swe/5 (Dec. 18, 2000), available at http://www.un.org/womenwatch/daw/ cedaw/25sess.htm (then follow CEDAW/C/Swe/5 hyperlink). 211 LUNDGREN ET AL., supra note 28 (describing the results of a study involving 7,000 respondents in Sweden, which examined womens experiences of physical violence, sexual violence, threats of violence, controlling behavior and sexual harassment). Id. 212 MENS VIOLENCE, supra note 29, at 6.
209 208
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emphasis on violence against women and domestic violence specifically after DEVAW. In each state there was a notable change in the approach to systemic intimate violence after 1993. This demonstrates a slow but meaningful shift in the internalization of the norm against systemic intimate violence within national laws. Nonetheless, [f]or women, international human rights present the biggest gap between principle and practice in the known legal world.213 Further steps are needed. CONCLUSION Historically, international law developed as an institution to prevent cruelty committed against identified groups, and distinction between sexes was subsumed into racial or ethnic categories. It was assumed that nothing as heinous as the acts of torture committed in the name of nationality or ethnicity could be committed in the name of gender. While this is changing, it remains in many countries that to hate a black person is a crime; to hate a woman is a culture. The recognition of womens rights in international law continues to advance but with several impediments. In reality, the legal category of womens rights is still marginalized, and there is a continuing reticence to apply the generic provisions and mechanisms of international law to violations of womens rights.214 However, the careful cultivation of the law relating to
213 CATHERINE A. MACKINNON, Crimes of War, Crimes of Peace, in ON HUMAN RIGHTS: THE OXFORD AMNESTY LECTURES 83, 97 (Stephen Shute & Susan Hurley eds., 1993). 214 Notwithstanding the revolution of crimes, such as rape as a weapon of genocide and forced pregnancy, mass acts of harm against women fail to attract the same degree of international activity as so-called mainstream acts of violence committed against population groups. One example is that of Sudan. The extent of women and children suffering in the crisis has triggered international attention. However, while the Genocide Convention has rightly been raised for assessment, very little has been done regarding the Janjaweeds or the Sudanese governments violation of the international human rights instruments that pertain to women. See PHYSICIANS FOR HUMAN RIGHTS, PHR CALLS FOR INTERVENTION TO SAVE LIVES IN SUDAN: FIELD TEAM COMPILES INDICATORS OF GENOCIDE 5 (June 23, 2004), http://www.phrusa.org/research/sudan/ pdf/sudan_genocide_report.pdf.
At the first sign of a Janjaweed attack, survivors reported that men and women fled separately. The men in some circumstances fled first in order to escape what they perceived to be the certain fate of death. The men left women and children to fend for themselves, knowing, as they reported in PHR interviews, that the women would likely be raped, but probably would not be killed. In a society where great emphasis is placed on gender roles and the importance of male protection, it is highly significant of the fear and distress imposed by the Janjaweed attacks that the men in the community were driven to abandon their families, risking serious stigma and harm, in order to save their own lives. Id. at 5.
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women, including the right to be free from intimate harm, is a steady theme in international law, one that ought to be pursued in the interest of reducing the manifestation of systemic intimate violence.215 A state, of course, cannot prevent incidents of violence; it is not, and should not be, in the home to regulate the interaction between cohabitants. Nonetheless, there is a great deal the state can do to mitigate the consequences of this violence and interrupt its evolution. The violence under discussion does not include a one-off incident that has no lasting effects. Rather, the violence constitutes a continuum where the real harm is not in the single act of violence, but in the commission of a series of abusive acts.216 Many states, however, will not change their laws, policies, and institutions without guidance from an international norm. International law is not implemented through some global policing agent. The growing force of transnational organizations, NGOs, and international bodies acts as a colony of agents, which, with fierce dedication, facilitates the three functions of international law: the expression, the implementation, and the expansion of norms. The failures in international lawand they have been granddo not negate the use and purpose of this system. Rather, the failures of this system demand our further efforts in remedying the deficiencies, identifying the strengths, and improving the structures through which international law becomes local lore. Ironically, while a skeptic balks at using international law to regulate such private conduct, it is within the individual and the intimate contexts that international law can be most effective. The developments in Mexico, Nicaragua, and Sweden in the period following DEVAW reveal just how important it is to have an authoritative enunciation of a norm against systemic intimate violence. Viewed in this way, international lawworld lawis in fact a spectrum, a bridge that connects a world order to the individual. It is this understanding of international law that justifies its application to systemic intimate violence because, for the individual, harm is harm, whether she is beaten by a strange prison guard or by her known intimate partner.
See Report of the Special Rapporteur on Violence Against Women, supra note 3. Alpa Parmar & Alice Sampson, Evaluating Domestic Violence Initiatives, 47 BRIT. J. CRIMINOLOGY 671, 674 (2007).
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Domestic Violence, Health, and International Law

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Domestic Violence, Health, and International Law

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DOMESTIC VIOLENCE, HEALTH, AND INTERNATIONAL LAW

Bonita Meyersfeld INTRODUCTION

EMORY INTERNATIONAL LAW REVIEW