UN and other HR judicial bodies on GBV and Violence Against Women

Declaration on the Elimination of Violence against Women, Preamble paragraph 6* [V]iolence against women is a manifestation of historically unequal power relations between men and women, which have led to domination over and discrimination against women by men and to the prevention of the full advancement of women, and … violence against women is one of the crucial social mechanisms by which women are forced into a subordinate position compared with men. *A/RES/48/104

It has taken quite some time for gender-based violence to be clearly seen as an International human rights violation by judicial bodies of human rights treaties (HRC, CAT, CEDAW, I-ACHR, ECtHR).

International bodies have concluded that states will be liable for failure to prevent the violations, control and regulate private actors, investigate, prosecute and punish and provide effective remedies to victims. Velasquez Rodriguez Case (Honduras) 4 I-ACHR

The American Convention on the Elimination of Violence against Women (the Convention of Belem do Para, 1994) explicitly provides that states must not only ensure that their agents and institutions refrain from any act or practice of gender violence, but also apply due diligence to prevent, investigate and sanction violence against women whenever it occurs.

By the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW 1979) states must take appropriate measures to eliminate discrimination against women by any person, organisation or enterprise and to introduce legislation or other appropriate measures to modify or abolish laws, regulations, customs and practices that constitute discrimination against women.

CEDAW's 1992 General Recommendation No. 19 asserts unequivocally that violence against women is gender-based discrimination and recommends that states' parties should take appropriate and effective measures to overcome all forms of GBV, whether public or private act.

Further, states' parties should ensure that laws against family violence and abuse rape, sexual assault and other... measures to overcome family violence should include: criminal penalties where necessary and civil remedies in cases of domestic violence; legislation to remove the defence of honour in regard to the assault or murder of a female family member.

The UN Declaration on the Elimination of Violence against Women (1993) defines violence against women as "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 private life.

The appointment of a Special Rapporteur on Violence against Women, its causes and consequences by the UN and the Beijing Declaration and Platform for Action adopted by 189 countries in 1995 underlined that violence against women is both a violation of women's human rights and an impediment to the full enjoyment by women of all human rights.

At the five year review of the Beijing Platform for Action in 2000, it was noted that violence, along with poverty, remains among the most pervasive problems confronting women across the globe.

The Council of Europe has issued recommendations to protect women, including the topic of violence against women generally (Rec 2002 5), in the family (Rec No. R (85) 4), and in Europe (Rec 1450 2000).

The Istanbul Convention (2011) defines “domestic violence” as all acts of physical, sexual, psychological or economic violence that occur within the family or domestic unit or between former or current spouses or partners, whether or not the perpetrator shares or has shared the same residence with the victim.

Parties shall take the necessary legislative and other measures to promote and protect the right for everyone, particularly women, to live free from violence in both the public and the private sphere.

"Women's human rights to life and physical and mental integrity cannot be superseded by other rights, including the right to property and the right to privacy." AT v Hungary (OP CEDAW 2005)

Therefore, under the doctrine of state responsibility at international law, the state will be responsible if it is in control of the situation, complicit with the perpetrators; if the actors are government agents and if the state has failed in its positive obligations to exercise 'due diligence'. Such obligations include those to observe, uphold and ensure all human rights provisions are complied with by reference to the principles of equality and non-discrimination. A state will be in violation of its obligations under international human rights law if it fails to ensure compliance with that law in its territory: whether by its own actions or its inactions.