Gender Perspectives on Torture: Law and Practice
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Gender Perspectives on Torture: Law and Practice CENTER FOR HUMAN RIGHTS & HUMANITARIAN LAW Anti-Torture Initiative Gender Perspectives on Torture: Law and Practice CENTER FOR HUMAN RIGHTS & HUMANITARIAN LAW Anti-Torture Initiative ii GENDER PERSPECTIVES ON TORTURE: Law and Practice Table of Contents v Acknowledgements vii Preface: Macarena Sáez xi Introduction: Juan E. Méndez xv Foreword: Dubravka Šimonović 1 I. Gender-Based Violence: State Responsibility 3 The Vital Voices Justice Institute: Helping States Combat Gender-Based Violence Gigi Scoles and Anupama Selvam 19 Reparations for Sexual and Other Gender-Based Violence Carla Ferstman 33 How Non-State Torture is Gendered and Invisibilized: Canada’s Non-Compliance with the Committee Against Torture's Recommendations Jackie Jones, Jeanne Sarson, and Linda MacDonald 57 The Importance of Investigating Torture Against Women and Girls by Non-State Actors: Applicable Legal Standards from International Human Rights Law Teresa Fernández Paredes 87 II. Gender and Sexuality as the Basis for Specific Harms 89 Murdered in the Name of “Honor” Aisha K. Gill 105 Female Genital Mutilation as a Form of Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment": Intersections with the Migration Context Els Leye and Ino Kehrer 123 Pregnancy and Virginity Testing in Educational Settings and the Torture and Other Ill-Treatment Framework Esther Major 139 Forced Contraception as a Means of Torture Christie J. Edwards 161 The Humanisation of Women: A Work in Progress Purna Sen 183 Gendering the Lens: Critical Reflections on Gender, Hospitality and Torture Mauro Cabral Grinspan and Morgan Carpenter iii iv GENDER PERSPECTIVES ON TORTURE: Law and Practice 197 III. Gender, Sexuality, and Deprivation of Liberty 199 Crime and Multiple Punishments: The Vulnerability of LGBTI Persons in the Criminal Justice System Jean-Sébastien Blanc 217 Women in the Criminal Justice System and the Bangkok Rules Therese Rytter and Andrea Huber 239 Mothers Behind Bars: Reflecting on the Impact of Incarceration on Mothers and their Children Maria Eva Dorigo 257 Making the Global Local, and the Local Global: Lessons Learned Brenda V. Smith 263 IV. Healthcare and Reproductive Rights 265 Reproductive Rights Violations as Torture or Ill-Treatment Katherine Mayall, Onyema Afulukwe, and Katrine Thomasen 279 Torture and Ill-Treatment: Forced Sterilization and Criminalization of Self-Induced Abortion Cynthia Soohoo and Farah Diaz-Tello 295 V. Annex 297 Gender perspectives on torture and other cruel, inhuman and degrading treatment or punishment (A/HRC/31/57) Juan E. Méndez v Acknowledgments This publication was made possible by a grant from the Ford Foundation, to whom we express our deep appreciation for their generous support. The Center would also like to thank the Open Society Foundation Human Rights Initiative and the Oak Foundation for their support of the Anti- Torture Initiative. Many people have been involved in brining this volume to fruition over the past months. We are grateful to the more than 20 article authors who contributed their perspectives and expertise to expand upon the former United Nations (UN) Special Rapporteur on Torture Juan E. Méndez’s thematic report on torture and ill-treatment through a gender perspective. Their deep commit- ment is inspiring and their important contributions have enriched the ongoing debates outlined in this work. Special thanks to the skilled editing team of Vidya Dindiyal, Ana Dionne-Lanier, Cynthia Park, Maleeha Riaz, Zuleika Rivera, and Christine Vlasic who reviewed all or part of the texts at various stages as well as their support of the Anti-Torture Initiative. A special thanks to Chase Dunn, and Imani Cherry for their assistance during final reviews of the articles. In addition, we would like to thank Monette Zard for her vital research and support in drafting the thematic report on the applicability of the prohibition of torture and other cruel, inhuman or degrading treatment or punishment in international law to the unique experiences of women, girls, and lesbian, gay bisexual, transgender and intersex persons. We would also like to thank Bill Novak, Julie Ahalt, Lori Schulman, Dawn Winter-Haines, and HBP, Inc. for overseeing the layout and design of the publication; Cathy Prather, and Michael Scher of the WCL Finance Department; and Melissa del Aguila, Anastassia Fagan, and Sofia Auzmendi of WCL’s Center for Human Rights & Humanitarian Law, for their continued support and assistance. The Center is profoundly grateful to Andra Nicolescu, former Assistant Director of the ATI, for her leadership in launching this volume by selecting and reviewing the articles and coordinating and communication with the authors. Finally, the Center would like to thank Vanessa Drummond, Assistant Project Director of the ATI, for coordinating the editing team, reviewing articles, and liais- ing with authors and publishers. This volume could not have been completed without their efforts. Finally, we would like to dedicate this book in memory of Khalid Khalid, beloved colleague and friend, who dedicated over twenty years of his life in service of American University Washington College of Law. His support for the Center and its work was steadfast and deeply appreciated. Disclaimer The ideas, opinions, and conclusions expressed in this volume are those of the authors only, and do not necessarily represent the views of the American University Washington College of Law Center for Human Rights & Humanitarian Law, the United Nations, the UN Special Rapporteur on Torture, the Ford Foundation, the Open Society Foundations, or the Oak Foundation. vi GENDER PERSPECTIVES ON TORTURE: Law and Practice This publication is intended to generate a broad discussion on the topic of gender and torture. For that reason, it may be freely reviewed, abstracted, reproduced and translated, in part or in whole, but it is not for sale or for use in conjunction with commercial purposes. Any changes to the text of this publication must be approved by the Anti-Torture Initiative of the Center for Human Rights & Humanitarian Law of American University Washington College of Law. If any section is reproduced, due credit must be given to the Center for Human Rights & Humanitarian Law's Anti- Torture Initiative and to this publication. Cover art by Aleksandra Jevtovic. Preface I once asked a Guatemalan public defender how she knew when a woman’s murder was the result of gender-based violence and not a simple homicide. She showed me several pictures of women’s half or fully naked bodies exhibiting obvious signs of torture, mutilation, and violent sexual assault prior to their deaths. She said that was how women’s bodies were usually found. That was the difference between gender-based violence and simple homicide. Women’s bodies are often used as instruments to send messages of terror, or as instruments of pleasure, or as instru- ments of experimentation. In all of these cases, gender-based violence is recognizable because of its profound denial of personhood. The common thread running through the collection of articles presented in this publication is that women’s bodies are still looked at and treated as instruments, or means to achieving a goal, rather than as autonomous individuals. Killing a body to end a life is different than killing a body to send a signal. In both cases, the person is refused her or his basic right to life, but in the latter, the person is a mark, a sign for others to see and use. The first chapter of this volume elaborates on the notion of gender-based violence, the need to incorporate a gender perspective in legal systems in general, and the responsibilities of States with regard to those at the margins of legal protections. Although gender-based violence has existed since the beginning of time, it has only entered the realm of human rights as a specific issue within the last decades. International human rights law, traditionally, has not protected women from the harms they have suffered as a result of being women. As with the rest of legal and political insti- tutions, women have had to struggle for their experiences to be recognized. The invisibility of women’s harms has also included a lack of reparations with a gender perspective; if the suffering women have endured is not understood, its consequences cannot be adequately addressed. Owing to the inclusion of a gender perspective, human rights treaty bodies have started to include repa- rations that put women, and not only their families or communities, at the center of their analyses. The new trends in international human rights are welcome by the international community, but they have not necessarily translated into substantive protection of women's and girl’s rights, and States must work to ensure that they carry through with their obligations to investigate incidents of gender-based violence and provide redress for victims. Chapter two examines specific forms of violence that women and girls experience throughout the world, including honor killings, female genital mutilation, pregnancy and virginity testing, and the use of forced contraception and addresses the need to advance the humanization of women’s rights. States have been reluctant to introduce laws opposing these forms of violence on grounds that certain practices are based on culture or religion. Although international human rights law protects the right to freedom of religion, sexual-based violence cannot be excused on religious grounds, and it has taken too long for laws to begin to act against practices that constitute torture or ill-treatment. The chapter invites readers to view women as the protagonists of human rights standards rather than continually framing men as the central figures of such rights; the standard of protection cannot always be viewed through the lens of male actors. The chapter then moves beyond the gender perspective as a tool to protect women and analyzes the need for the specific recognition of harms suffered by trans and intersex individuals.