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Gender Perspectives on Torture and Other Cruel, Inhuman, Or Degrading Treatment Or Punishment: Expert Consultation

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Gender Perspectives on Torture and Other Cruel, Inhuman, Or Degrading Treatment Or Punishment: Expert Consultation American University Washington College of Law Digital Commons @ American University Washington College of Law Reports Scholarship & Research 11-5-2015 Gender Perspectives on Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment: Expert Consultation Brenda V. Smith Follow this and additional works at: https://digitalcommons.wcl.american.edu/fasch_rpt Part of the Human Rights Law Commons, International Law Commons, and the Law and Gender Commons GENDER PERSPECTIVES ON TORTURE AND OTHER CRUEL, INHUMAN, OR DEGRADING TREATMENT OR PUNISHMENT EXPERT CONSULTATION NOVEMBER 5 – 6, 2015 WORKING PAPER1 INTRODUCTION The aim of this consultation with experts is to ensure that the Special Rapporteur receives the necessary exposure to the different practices, international standards and jurisprudence, and expert opinions that will help him draft his forthcoming thematic report for the United Nations Human Rights Council. The report will focus on assessing the unique experiences of women, girl children and LGBTI persons from the perspective of torture and other cruel, inhuman or degrading treatment and punishment (“CIDTP”) in international law. The consultation will focus on specific practices where the mistreatment rises to the level of torture or CIDTP to identify gaps in protection, state obligations, and best practices. The thematic report will specifically consider practices such as, inter alia, violence and discrimination against women, girls, and LGBTI persons; conflict-related sexual violence; domestic violence; custody and detention practices; honour-based violence, human trafficking, reproductive rights and healthcare, and other cultural practices that uniquely or disproportionately affect women and LGBTI individuals. The purpose of examining these practices will be to determine whether higher or modified standards are required to ensure adequate protection of women, girls, and LGBTI persons. The discussions will cover practices that are already classified as torture, identify new practices requiring specific attention or modified standards to combat and prevent torture and other ill-treatment, and examine best practices. This consultation is intended to help the Special Rapporteur determine priorities for the forthcoming report, and to facilitate a focused discussion of key issues pertaining to gender perspectives on torture. The preliminary research and questions identified below, whilst not comprehensive, are intended to provide a basis for and a guide to the discussion between the experts and the Special Rapporteur. It is hoped that the consultation will help shed light on a broad range of topics and perspectives, with a view to identifying existing gaps in law and practice and fleshing out necessary protective and preventive mechanisms to ensure that women, girls, and LGBTI persons are adequately protected from torture and other ill-treatment in a variety of contexts. 1 The Special Rapporteur on Torture and the Anti-Torture Initiative would like to thank UC Berkeley School of Law International Human Rights Law Clinic students Sabira Khan ’16, Maria Ochoa Vargas ’16, and Kelsey Quigley ’17, under the supervision of Laurel E. Fletcher, Clinical Professor of Law, for their assistance in preparing this Working Paper. THURSDAY, 5 NOVEMBER PANEL I Gender Perspectives on Torture Other Ill-Treatment: An Overview of Major Challenges in Law and Practice OVERVIEW The international community has acknowledged that certain manifestations of violence against women, girls and persons identifying as lesbian, gay, bisexual, transgender, and intersex (LGBTI) are forms of/can amount to torture. The Vienna Declaration and Programme of Action, the Declaration on the Elimination of Violence against Women and the Beijing Declaration and Platform for Action, all have been influential in developing norms around gender-based violence. There has also been mention of violence against women in three key regional human rights treaties, including the Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women of 1994, the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa of 2003, and the 2011 Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence. Both the European Court of Human Rights and the Inter-American Commission on Human Rights have, in their case law, found instances of rape of detainees to amount to torture.2 In dealing with domestic violence and rape by non-state actors, the European Court of Human Rights has given indications that it may be willing to make a finding of “torture”, but up until now has only referred to the acts as “ill-treatment,” when the acts are committed by non-state actors. 3 The Inter-American Commission on Human Rights has found that a rape can constitute torture even when it only consists of one act or when it occurs outside of state installations, if there is intentionality, severe suffering, and an end on the part of the perpetrators.4 In 1986, the first UN Special Rapporteur on torture classified rape as a form of torture.5 In 2013, the UN Committee Against Torture (UNCAT) expressed concern over rape used as torture in its review of periodic country reports.6 The UN Human Rights Committee has recognized other manifestations of violence against women as constituting torture or CIDT, including forced sterilization,7 forced abortion8 and female genital mutilation.9 The Statute of the International Criminal Court states that “committing rape, sexual slavery, enforced prostitution, forced pregnancy…enforced sterilization, or any other form of sexual violence” constitutes a war crime in international and non-international armed conflicts.10 Furthermore, “rape, 2 See, e.g., European Court of Human Rights (“ECtHR”), Aydin v Turkey (1997) 25 September 1997; Inter- American Commission on Human Rights (“IACHR”), Raquel Martí de Mejía v Perú (1996) Case 10.970, Decision of 1 March 1996, Report No. 5/96, OEA/Ser.L/V/II.91 Doc. 7. 3 See, e.g., ECtHR, Opuz v Turkey (2009) App. No. 33401/02, Judgment of 9 June 2009. 4 IACHR, Application to the Inter-American Court of Human Rights in the case of Inés Fernández Ortega (Case 12,580) against the United Mexican States, May 7, 2009, paras. 178-179. 5 Commission on Human Rights (1986), 'Report by the Special Rapporteur, Mr P Kooijmans', UN Doc. E/CN.4/1986/15, 19 February 1986, para. 119. 6 See UN Committee Against Torture, Concluding Observations for Japan, Kenya, Mauritania and Estonia, respectively, CAT/C/JPN/CO/2, para. 20, CAT/C/KEN/CO/2, para. 7, CAT/C/MRT/CO/1, para. 23, and CAT/C/EST/CO/5, para. 12. 7 See, e.g., UN Human Rights Committee, Concluding Observations on Slovakia, CCPR/C/SVK/CO/3, para.13. 8 See, e.g., UN Human Rights Committee, General Comment No. 28, article 3, HRI/GEN/1/Rev.9 (Vol.I), Sect. II. 9 See, e.g., UN Human Rights Committee, Concluding Observations on Chad, CCPR/C/TCD/CO/1,para. 15. 10 International Criminal Court Statute, Article 8(2)(b)(xxii) and (e)(vi) (ibid., § 1565). 1 sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity” constitutes a crime against humanity under the Statute of the International Criminal Court and rape constitutes a crime against humanity under the Statutes of the International Criminal Tribunals for the former Yugoslavia and Rwanda. 11 In the international humanitarian law context, rape and human trafficking are war crimes under both the Statutes of the International Criminal Tribunal for Rwanda and of the Special Court for Sierra Leone.12 In this context, and in view of the fact that women and girl children, as well as LGBTI persons uniquely experience torture and CIDTP, it is important to analyze how the genders experience pain and suffering (physiologically and psychologically) in different ways, and by doing that, analyze the special remedies that are necessary to be developed. In his work, the Special Rapporteur on Torture has observed that people frequently suffer torture or CIDT not only because of their gender but also because of incarceration and treatment policies that do not bear in mind particular gender-sensitive needs for rehabilitation and treatment. Moreover, gender-based discrimination and impunity are closely linked, while reports indicate that criminal justice systems are not responding to violence against and ill- treatment of women and LGBTI persons. In addition, over time, women, girl children and LGBTI persons have been disproportionately subjected to different forms of harm often by private actors, that do not fit within the traditional constructs of torture. The torture protection framework in international law must be applied in a gender-inclusive and gender-sensitive manner, with a view to strengthening the protection of women, girl children, and LGBTI persons from practices amounting to torture and other ill-treatment.13 As explained by former Special Rapporteur on Torture Manfred Nowak, this endeavor is important because while a variety of international instruments explicitly or implicitly provide for an extensive set of obligations with respect to violence and discrimination against women, “classifying an act as ‘torture’ carries a considerable additional stigma for the State and reinforces legal implications” (for instance, the fundamental obligations to criminalize acts of torture, to bring perpetrators to justice, and to provide reparation to victims).14 Over the last decades,
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