Sunday, September 10, 2017

General recommendation No. 35 on gender-based violence against women. Scope 2/4

8. This document complements and updates the guidance to States parties set out in general recommendation No. 19, and should be read in conjunction with it.

9. The concept of ‘violence against women’ in general recommendation No. 19 and other international instruments and documents has emphasised that this violence is genderbased. Accordingly, this document uses the expression ‘gender-based violence against women’, as a more precise term that makes explicit the gendered causes and impacts of the violence. This expression further strengthens the understanding of this violence as a social - rather than an individual- problem, requiring comprehensive responses, beyond specific events, individual perpetrators and victims/survivors.

10. The Committee considers that gender-based violence against women is one of the fundamental social, political and economic means by which the subordinate position of women with respect to men and their stereotyped roles are perpetuated. Throughout its work, the Committee has made clear that this violence is a critical obstacle to achieving substantive equality between women and men as well as to women’s enjoyment of human rights and fundamental freedoms enshrined in the Convention.

11. General recommendation No. 28 (2010) on the core obligations of States parties indicates that their obligations under article 2 of the Convention are to respect, protect and fulfil women’s rights to non-discrimination and the enjoyment of de jure and de facto equality.  The scope of these obligations in relation to gender-based violence against women occurring in particular contexts are addressed in general recommendation No. 28 and other general recommendations, including general recommendations No. 26 (2008) on women migrant workers, No. 27 (2010) on older women, No. 30 (2013) on women in conflict prevention, conflict and post-conflict situations; No. 31 (2014) on harmful practices; No. 32 (2014) on the gender-related dimensions of refugee status, asylum, nationality and statelessness of women; No. 33 (2015) on women’s access to justice; and No. 34 (2016) on the rights of rural women. The current document cross-references, but does not repeat, the relevant elements of those general recommendations.

12. General recommendation No. 28 on the core obligation of States parties under article 2 of the Convention as well as general recommendation No. 33 on women’s access to justice confirms that discrimination against women is inextricably linked to other factors that affect their lives. The Committee’s jurisprudence highlights that these may include ethnicity/race, indigenous or minority status, colour, socioeconomic status and/or caste, language, religion or belief, political opinion, national origin, marital and/or maternal status, age, urban/rural location, health status, disability, property ownership, being lesbian, bisexual, transgender or intersex, illiteracy, trafficking of women, armed conflict, seeking asylum, being a refugee, internal displacement, statelessness, migration, heading households, widowhood, living with HIV/AIDS, deprivation of liberty, being in prostitution, geographical remoteness and stigmatisation of women fighting for their rights, including human rights defenders.12 Accordingly, because women experience varying and intersecting forms of discrimination, which have an aggravating negative impact, the Committee acknowledges that gender-based violence may affect some women to different degrees, or in different ways, so appropriate legal and policy responses are needed.13

13. The Committee recalls article 23 of the Convention which states that any provisions in national legislation or international treaties other than the Convention on the Elimination of All Forms of Discrimination against Women that are more conducive to the achievement of equality between women and men will prevail over the obligations in the Convention, and accordingly, the recommendations in this document. The Committee also points out that States parties’ action to address gender-based violence against women is affected by reservations they maintain to the Convention. It further notes that as a human rights treaty body, the Committee may assess the permissibility of reservations formulated by States parties14, and reiterates its view that reservations especially to article 2 or article 1615 , the compliance with which is particularly crucial in efforts to eliminate gender-based violence against women, are incompatible with the object and purpose of the Convention and thus impermissible under article 28, paragraph 2.16

14. Gender-based violence affects women throughout their life cycle17 and accordingly references to women in this document include girls. This violence takes multiple forms, including acts or omissions intended or likely to cause or result in death18 or physical, sexual, psychological or economic harm or suffering to women, threats of such acts, harassment, coercion and arbitrary deprivation of liberty.19 Gender-based violence against women is affected and often exacerbated by cultural, economic, ideological, technological, political, religious, social and environmental factors, as evidenced, among others, in the contexts of displacement, migration, increased globalization of economic activities including global supply chains, extractive and offshoring industry, militarisation, foreign occupation, armed conflict, violent extremism and terrorism. Gender-based violence against women is also affected by political, economic and social crises, civil unrest, humanitarian emergencies, natural disasters, destruction or degradation of natural resources. Harmful practices20 and crimes against women human rights defenders, politicians21, activists or journalists are also forms of gender-based violence against women affected by such cultural, ideological and political factors.

15. Women’s right to a life free from gender-based violence is indivisible from and interdependent with other human rights, including the right to life, health, liberty and security of the person, the right to equality and equal protection within the family, freedom from torture, cruel, inhumane or degrading treatment, freedom of expression, movement, participation, assembly and association.

 16. Gender-based violence against women, may amount to torture or cruel, inhuman or degrading treatment in certain circumstances, including in cases of rape, domestic violence or harmful practices, among others22. In some cases, some forms of gender-based violence against women may also constitute international crimes.23

17. The Committee endorses the view of other human rights treaty bodies and special procedures mandate-holders that in making the determination of when acts of gender-based violence against women amount to torture or cruel, inhuman or degrading treatment,24 a gender sensitive approach is required to understand the level of pain and suffering experienced by women,25 and that the purpose and intent requirement of torture are satisfied when acts or omissions are gender specific or perpetrated against a person on the basis of sex.26

18. Violations of women’s sexual and reproductive health and rights, such as forced sterilizations, forced abortion, forced pregnancy, criminalisation of abortion, denial or delay of safe abortion and post-abortion care, forced continuation of pregnancy, abuse and mistreatment of women and girls seeking sexual and reproductive health information, goods and services, are forms of gender-based violence that, depending on the circumstances, may amount to torture or cruel, inhuman or degrading treatment.27

19. The Committee regards gender-based violence against women to be rooted in gender-related factors such as the ideology of men’s entitlement and privilege over women, social norms regarding masculinity, the need to assert male control or power, enforce gender roles, or prevent, discourage or punish what is considered to be unacceptable female behaviour. These factors also contribute to the explicit or implicit social acceptance of gender-based violence against women, often still considered as a private matter, and to the widespread impunity for it.

20. Gender-based violence against women occurs in all spaces and spheres of human interaction, whether public or private. These include the family, the community, the public spaces, the workplace, leisure, politics, sport, health services, educational settings and their redefinition through technology-mediated environments,28 such as contemporary forms of violence occurring in the Internet and digital spaces. In all these settings, gender-based violence against women can result from acts or omissions of State or non-State actors, acting territorially or extraterritorially, including extraterritorial military action of States, individually or as members of international or intergovernmental organizations or coalitions29, or extraterritorial actions by private corporations

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