WUNRN
Book Review Plus Article
Application of
International Law to Systemic Intimate Violence
____________________________________________________
IANSA - International Action Network
on Small Arms
Dear
IANSA Women’s Network & Friends,
This
article is based on the book 'Domestic Violence and International Law' by
Bonita Meyersfeld and is of great use to those of us working on the issue of
armed domestic violence and the Disarm Domestic Violence campaign. It provides
background and developments in international law as well as argument and case
information which outline the obligation on states to prevent and respond to
domestic violence including armed domestic violence.
Bonita
is an associate professor of law at the University of Witwatersrand School of
Law in Johannesburg, South Africa. She is also the head of gender at the Centre
for Applied Legal Studies and an editor on the South African Journal on Human
Rights.
The
book itself emanates from the tragic uniformity of domestic violence stories by
women around the world. Equally disquieting is the uniformity of the state’s
non-response. In the face of severe acts of domestic violence the state is
silent. The remedies that exist in the public world simply fail to permeate
into the private sphere to lessen intimate harm.
Bonita
first considers whether there is an authoritative right in international law to
be free from domestic violence and, if so, what the substance of that right
should be. She then considers the corresponding state obligation. And finally
she addresses the most intuitive question, namely, how can international law
benefit victims and survivors of systemic intimate violence? Bonita concludes
that international law works best when viewed as a forum for the creation of
norms and standards that, through a process of norm creation and infiltration,
can alleviate harm in the most intimate part of one’s life.
Sarah
Masters
Women's
Network Coordinator
International
Action Network on Small Arms (IANSA)
_____________________________________________________________________
September 23, 2010
I am very grateful
to IntLawGrrls for the opportunity and space to contribute this guest post discussing my work on
systemic intimate violence and international law. The following discussion is
based on my book, Domestic Violence and International Law,
and the international law dialogue held yesterday at Chatham
House on this subject.
The application of
international law to domestic violence raises both intuitive and intellectual
questions. Is there a right to be free from domestic violence in international
law? If there is such a right, what is its substance? And wherever there is a
right, of course, we search for the corresponding legal obligation. How do we
categorise that obligation in international law and to whom does this
obligation apply? Finally, the most intuitive and human of all questions, how
can the broad – and by definition – global network of international law
possibly assist people in the most intimate and private contexts of their
lives?
I address these problems in the book Domestic Violence
and International Law. The book emanates from the tragic
uniformity of domestic violence stories by women around the world. Equally
disquieting is the uniformity of the state’s non-response. In the face of
severe acts of domestic violence, including battering, breaking, burning,
raping, hacking forced sexual encounters with third parties, threats of harm,
verbal denigration and murder, the state is silent. The remedies that exist in
the public world simply fail to permeate into the private sphere to attenuate
intimate harm.
In this discussion, I will consider firstly whether there is an authoritative
right in international law to be free from domestic violence and, if so, what
the substance of that right should be. I then consider the corresponding state
obligation. And finally I address the most intuitive question, namely, how can
international law benefit victims and survivors of systemic intimate violence?
Assessing the existence of a right in international law is difficult. There is
no central law-making authority. According to the statute of the International Court of Justice
(art 38), there are four sources of international law, namely, treaties,
customary international law, the law of (so-called) civilised nations and
finally, the jurisprudence of courts and tribunals and the writings of
respected scholars. In the book I analyse these sources of law and conclude
that, on a strict, black letter legal analysis, it is not clear that there is
an authoritative principle in international law that states have an obligation
to prevent domestic violence; however, I argue that we are in the amorphous
process of
norm crystallisation. We are on an irreversible trajectory towards an
obligation in international law on states to protect victims and survivors of
domestic violence.
This is evident from the following developments in international law. The first
is the work of the special rapporteur on torture, who categorises domestic violence as a form of torture,
prohibited under the Torture Convention. The second is the landmark ruling by
the Inter-American Court of Human Rights in the ‘Cotton Field’ case, in which the Court
held that Mexico was in breach of the Inter-American Convention on Human Rights
and the Convention of Belem do Para for failing to investigate the
disappearance and murder of women over a period of 15 years. Many of these
deaths and mutilations were linked to domestic violence. There are also intense
developments in Europe. In 2005 the Council of Europe Task Force to Combat Violence against Women,
including Domestic Violence (EG-TFV) was established. This has
led to developments regarding the adoption of a Europe-wide treaty regarding
violence against women and domestic violence (the second draft of a CoE
convention against violence against women has been distributed). The final
important development is the decision of the European Court of Human Rights in
the case of Opuz v Turkey (which has previously been
discussed on this blog here), where the Court held that Turkey’s
failure to respond to twelve years of domestic violence amounted to a violation
of the right to life (art 2 of the European Convention); a violation of the
right to be free from torture and ill-treatment (art 3 of the European Convention); and a violation of
the right to non-discrimination on the basis of sex (art 14).
If we are to take steps to formalise an authoritative international law
obligation on states to prevent and respond to domestic violence, it is
important to specify the details of the right and the corresponding duty. As
regards the right, I propose that not all forms of domestic violence should
trigger the provisions of international law. Rather, it is a specific type of
violence, what I refer to as systemic intimate violence, which warrants the
application of international law. Systemic intimate violence consists of five
co-existing elements. The first element is severity – the harm must be severe
and can consist of both physical and non-physical violence. There are two
important points to make here. I am not suggesting that severity of harm is a
test for all forms of domestic violence. Rather it is severity of harm that is
an element for systemic intimate violence under international law. This is
uncomfortable but necessary. International
law regularly distinguishes between degrees of harm (torture v ill-treatment;
genocide v murder; mass rape v rape) and it is a form of prolonged, severe harm
that triggers in global network of law. If domestic violence is attended to by
the state, then in essence the right to protection has been fulfilled. What we
examine in international law is where prolonged, severe harm is unaddressed.
The test for severity in international law is an objective one (A v United Kingdom) and we ask whether the humiliation
to the victim is so intense that a reasonable person would be outraged (Prosecutor
v Aleksovski). The following stories of torture, compared to
stories of domestic violence, are informative:
I was lying on the
floor, two guards held my legs while another kicked me in the testicles. I
would lose consciousness and come to, I lost consciousness four times. They hit
me around the head, there was blood. They would beat me unconscious and wait
until I came round: ‘He’s woken up, and they would come in and beat me [again].
-- Chechnyan
survivor of torture by the Russian Army
From the moment Rodi
Adalí Alvarado Peña married a Guatemalan army officer at the age of 16, she was
subjected to intensive abuse, and all her efforts to get help were
unsuccessful. Her husband raped her repeatedly, attempted to abort their second
child by kicking her in the spine, dislocated her jaw, tried to cut off her
hands with a machete, kicked her in the vagina and used her head to break
windows.
-- Guatemalan Woman
[F]irst they would
beat you and then you would have to lie down on the floor and crawl to them.
You would have to say, “Request permission to crawl.” Me personally, they beat
me on the knees, with clubs, and on the kidneys.
-- Chechnyan
survivor of torture by the Russian Army
He was sittin’ on
the bed. Had his .357 Magnum. He said, ‘June, you get down on this floor right
now. You crawl to me.’ And when I got to his feet he took that pistol and hit
me right alongside of the head. I thought I was gonna die. I still got the knot
from it. He said, ‘if you even act like you’re gonna run I’ll blow your brains
all over this wall.’
-- American Woman
The theme of severity of harm that is so intense that it would outrage the
reasonable person, is evident.
The second element is that the violence usually operates on a continuum. The
exigency of harm may not be in individual incident but in prolonged frequency
of events. This is particularly important in domestic violence where violence
is cyclical and individual acts seem benign but actually occur along a
continuum of control and impotence. The notion of a continuum of harmful
incidences was confirmed by the ICTY, noting that it was “sufficient to show
that an act took place in the context of an accumulation of acts of violence
which, individually, may vary greatly in nature and gravity”(Prosecutor v Kunarac). This element also
featured in the Opuz decision: “Although there were
intervals between the impugned events… the overall violence to which the
applicant and her mother were subjected over a long period of time cannot be
seen as individual and separate episodes and must therefore be considered
together as a chain of connected events.”
The third element of systemic intimate violence is that intimacy. This is an
important element for several reasons. The intimacy of helps to ‘disappear’ the
violence, preventing the abused from reporting it and the authorities from
recognising it. The reality, however, is that the highest rate of violence
against women occurs in private relationships. Privacy presents an additional
problem: the constitutional right to privacy traditionally is understood as a negative
obligation to refrain from interfering with one’s private affairs. However, the
ECtHR (Bevacqua and S v Bulgaria and Opuz v Turkey) and the CEDAW Committee (Yildirim v Austria; Goekce v Austria) have recognised that the
right to privacy is also a positive obligation to secure the private realm so
that individuals may flourish. Privacy cannot be understood merely as a right
to be left alone; it is linked affirmatively to the right to liberty, the right
to autonomy and self-determination.
The fourth element is group vulnerability. This is not to say that women have
some essentialized element of vulnerability and weakness but rather that the
legal system, to which women look for assistance, often is inert. Women as a
group are affected by domestic violence more than any other group (such as
children, the elderly, the disabled, men and non-human animals) and the
greatest cause of death and disability among women aged 15-44 worldwide – more
than HIV, TB and malaria – is domestic violence.
The final element is that of state failure. In the face of extreme or continued
violence, in the private realm, occurring repeatedly against a particular
social group, the state is unable or unwilling to respond. This is evidenced by
the sad cases of Kontrova v Slovakia and Opuz v Turkey, where the claimants in both
cases suffered years of severe physical and non-physical violence, resulting in
the death of their children and mother, respectively.
These are the elements of systemic intimate violence.
The next step is to identify the principles of state responsibility in
international law and how they might apply in the context of systemic intimate
violence. The principles of state responsibility are codified in the International Law Commission’s Draft Articles on the
Responsibility of States for Internationally Wrongful Acts. In
order to determine whether a state has committed an international wrongful act,
there must be (i) conduct and (ii) wrongfulness. A state can be responsible for
both positive acts and for omissions or a failure to act. In the Corfu Channel case, the ICJ held that
Albania had known that there were mines in its territorial waters and had
failed to notify third parties about this danger. As a result, Albania had
committed an internationally wrong act, not because it had laid the mines but
because it has failed to warn third parties about their presence.
If the state fails to act where it has an international legal obligation to do
so, the wrongfulness test asks us to consider what steps a state ought to have
taken to fulfill this legal duty. The approach adopted in international law is
the so-called due diligence standard. The principle, originally enunciated in
the case of Velasquez Rodriguez v Honduras and
fortified by the UN special rapporteur on violence against women, holds that an
illegal act, committed by a private person, can lead to international
responsibility of a state, not because of the act itself, but because of the
lack of due diligence to prevent the violation or respond to the harm.
How does this apply to cases of systemic intimate violence? The test can be
summarised as follows: (i) did the authorities know, or ought they to have
known, at the time of the existence of a real and immediate risk to the life or
well-being of an identified individual from the criminal acts of a third party;
and, if so (ii) did the state fail to take measures within the scope of its
powers, which, judged reasonably, might have been expected to avoid that risk.
This test can be answered in the affirmative in the Kontrova case, where the state knew about
the history of violence against the complainant when the complainant reported
that her estranged husband had taken their children. The state refused to act
until the passage of 48 hours. During this time the complainant’s estranged
husband shot and killed their two children and then himself.
The final question is how there can be any benefit in international law for
people who experience systemic intimate violence. I propose a theory of
non-coercive compliance, which, based on the work of Professors Koh and
Reisman, focuses on the impact of international law through norm infiltration.
International law is a standard-setting spectrum, to which states can aspire
and on which individuals can rely. Fuelled by international actors, NGOs,
international bodies and trans-national organisations, international law can
effect global change in intimate settings. Specifically, international law
human rights law has two functions. The first is an expressive value:
international law gives a name to harm that previously fell outside established
legal principles and draws a conceptual boundary around such conduct,
prohibiting it. Secondly, international law has an implementing capacity,
compelling state to modify their laws in accordance with the international
standards.
These values of international law are best evidenced in respect of enforced
disappearances. Traditionally, the legal remedies of habeas corpus and extra-judicial
killings were not available to the families of the kidnapped political
dissidents because the state denied involvement. It was only with the
development of the concept of enforced disappearances and the lobbying at the
international level, that the nuanced nature of this harm was properly
understood and an appropriate legal response fashioned. Today the UN working
group on enforced disappearances has clarified roughly 1,763 cases.
These benefits are also evident in respect of systemic intimate violence. An
analysis of the CEDAW Committee’s reports from 1984 to present day reveals an
interesting pattern. Prior to 1992 domestic violence is rarely mentioned in
states’ reports to CEDAW or in the CEDAW committee’s responses. After 1992,
however, domestic violence becomes the key feature of states’ reports and of
the committee’s response. What happened in 1992? This period saw the greatest
global call at the time regarding violence against women and the responsibility
of states to prevent domestic violence. It culminated in the General Assembly
Declaration on the Elimination of Violence against Women.
I analysed three states’ reports to CEDAW before and after 1992, namely,
Nicaragua, Sweden and Mexico. In respect of each state the same pattern
applies. Prior to 1992 there is no mention of domestic violence. After 1992 the
states begin the process of describing law reform, policy creation and the
allocation of funding to the problem of domestic violence. So international law
not only facilitated a dialogue regarding domestic violence against women at
international law but it led to significant legal changes at the national and
municipal level.
This is not to overstate international law. Rather it demonstrates that
international law works best when viewed as a forum for the creation of norms
and standards that, through a process of norm creation and infiltration, can
alleviate harm in the most intimate part of one’s life.