Ask the International Legal Expert
Question #1: Domestic Violence

Welcome to “Ask the International Legal Expert” column. We are very grateful to Mary Hansel for her assistance in providing information on international law topics related to women’s rights issues. We invite you to submit questions for consideration by Mary by e-mailing your question to MaryHansel@aiwr.org. Approximately once a month, Mary will select one question to respond to and will post the question and her response on this page for everyone’s benefit.

PLEASE NOTE: The information and opinions provided in this column are for general information and discussion only. Nothing in this column or on this website should be considered legal advice and should not be relied on as legal advice for any specific situation. Also, the opinions offered by Mary are hers alone and may not reflect the opinions of the Alliance for International Women’s Rights.

Question:

To what extent does international law recognize domestic violence as a form of torture? What are the benefits of this recognition?

Answer:

Thank you for your question. This topic adds an interesting tangent to the current debate on the use of torture in the “war on terror.” This topic also involves many issues pertinent to the work of the Alliance and its partner organizations, including state accountability for human rights offenses committed by individuals, public-private dichotomies within human rights law and the indirect ways in which women must sometimes pursue justice under international law.

Moreover, this topic is important to address because domestic violence1 is truly a global pandemic in need of greater legal attention. Women are subjected to this type of abuse in every country in the world. In a 2005 study of ten geographically and economically diverse countries, the World Health Organization (WHO) found that more than fifty percent of women in four countries and at least twenty percent of women in nine countries were victims of domestic violence.2 Another WHO study indicated that thirty percent of women in the U.K. and twenty-two percent of women in the U.S. had been physically abused by their partners or ex-partners.3

In spite of its prevalence, domestic violence has been outlawed by fewer than half of states and with varying degrees of efficacy.4 International standards are needed to ensure that all states adopt and enforce strong laws, and to send a global message that domestic violence is an unacceptable violation of human rights.5 Accordingly, emerging international law recognizes that an individual’s commission of severe domestic violence, coupled with a state’s failure to prohibit or punish domestic violence, can amount to torture. As a result, victims of domestic violence stand to benefit from the elevated status of torture laws, access to powerful legal instruments and complaint mechanisms, and the work of human rights advocates focused on torture.6

This concept is gaining substantial traction among international legal institutions. In fact, the European Court of Human Rights recently found Turkey liable for torture because state officials failed to prevent and redress the abuse of the plaintiff by her husband.7 Hopefully, the international community will continue to make strides in recognizing domestic violence as a violation of torture and other international human rights.

State Accountability for Non-State Acts of Violence

Advancing the recognition of domestic violence as a violation of international human rights has been a painstaking process for women’s rights advocates. Most human rights instruments apply only to actions by states and require state involvement or acquiescence to trigger the instruments’ protections.8 Meanwhile, domestic violence is almost exclusively committed by individual, non-state actors and, therefore, has not historically been seen as a human rights issue within the purview of state responsibility.9

The idea of state accountability for non-state acts, however, started to gain momentum in the late 1980s due to several pioneering cases. One seminal case was Velásquez-Rodriguez v. Honduras, decided by the Inter-American Court of Human Rights in 1988.10 The Velásquez court found that states must conduct due diligence to prevent and respond to violence committed by non-state actors ⎯ in that case, death squads causing forced disappearances in Honduras.11 Increasingly, human rights advocates have built upon the Velásquez decision to argue that international law extends to human rights abuses by non-state actors where states have failed to meet their due diligence requirements.12 Nonetheless, this concept remains somewhat controversial within the international community.

Domestic Violence Within the Scope of State Obligation

A second obstacle to the recognition of domestic violence as a transgression of international human rights law is the traditional view that domestic violence is an inherently private, family matter and thus exists outside the scope of state regulation.13 “Discriminatory attitudes of law enforcement officials, prosecutors and judges, who often consider domestic violence a ‘private’ matter beyond the reach of the law, reinforce the batterer’s attempts to demean and control his victim.”14 These entrenched attitudes obstruct the implementation of reforms that are responsive to inequalities between men and women.15 In turn, states rarely fulfill their international legal obligations in preventing, investigating and prosecuting domestic violence.16

States, however, are increasingly being held accountable for such failures under international law.17 The U.N. Committee on the Elimination of All Forms of Discrimination Against Women has catalogued states’ positive obligations to address domestic violence, which include providing criminal penalties and civil remedies, enacting legislation to remove the defense of “honor” and making shelters and counseling services available for victims.18 Moreover, in recent years, individual claims against states for failing to fulfill their domestic violence obligations have had success in various international human rights bodies.19 In 2007, the Inter-American Commission on Human Rights found that U.S. police engagement “in a systematic and widespread practice of treating domestic violence as a low-priority crime, belonging to the private sphere” may violate the American Convention.20 Then in 2008, the European Court of Human Rights found that Bulgarian authorities’ refusal to send police to assist an abused woman because of privacy concerns “was incompatible with their positive obligations” and noted “the particular vulnerability of the victims of domestic violence and the need for active State involvement in their protection.”21 Several weeks ago, the European Court of Human Rights took another jurisprudential step in holding states liable for acts of domestic violence within their borders: by establishing the justiciability of individual claims for domestic violence by way of torture.

Domestic Violence as Torture

On June 9, 2009, the European Court of Human Rights found Turkey liable for torture in failing to adequately protect the claimant from her abusive husband in Opuz v. Turkey.22 This is the first case in which the European Court of Human Rights – or any other major international or regional court – has held a state liable for torture due to failures to adequately address domestic violence.23 The Opuz decision provides strong support for the idea that severe cases of domestic violence fall within the definition of torture proffered by the U.N. Convention Against Torture or Other Cruel, Degrading or Inhuman Treatment or Punishment (“CAT”).24 CAT defines torture as “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person,” for a purpose such as obtaining information, punishment, intimidation or coercion, “or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.”25

The dynamics of extreme forms of domestic violence closely resemble the defining elements of torture: (1) both cause severe physical and/or mental pain, (2) that is/are intentionally inflicted, (3) for specified unlawful purposes and (4) with some form of state involvement, whether active or passive.26 The first three elements are discussed in the following paragraphs. The latter element, state involvement, is satisfied by state failures in preventing and addressing domestic violence, as explored in the foregoing paragraphs. Although traditional conceptions of torture involve direct physical acts by state agents, the Velasquez case established that state acquiescence to torture by not fulfilling due diligence obligations can suffice.

First, the severity of both domestic violence and torture are comparable, although domestic violence results in many more deaths per year than official torture.27 This may be because the means used for each are strikingly similar: “The most common physical methods of both torture and domestic violence are beating, burning, tying up, choking, threatened asphyxiation (the goal of water-boarding), pulling out nails, stripping naked, mutilating, inflicting rape and other sexual assault, and threatening to kill or attack the victim’s children.”28 Furthermore, “[t]orture involves cycles of oppression and release and good cop/bad cop roles designed to fool people into trust” and domestic violence often involves analogous “intermittent periods of wooing the victim, weeping and seeking forgiveness.”29

Second, domestic violence and torture are both intentional acts. Like torture, partner abuse typically involves a controlled and patterned process.30 Both types of perpetrators tend to feel threatened ⎯ torturers identify their prisoners as threats to safety, national security or ideals and abusers feel their identities as master threatened by assertions of independence.31 Both then “believe that violence is justified to achieve their aims in response to the resistance of the prisoner or the failures or ‘disobedience’ of the battered woman.”32

Third, domestic violence and torture share the same ultimate purpose: to establish and maintain control over another.33 To achieve this goal, abusers and torturers seek to coerce, intimidate and humiliate their victims.34 Interrogation plays a key role in both practices (domestic violence victims are often hounded with jealous questions, such as “Where were you?” “What did you do?” “Who were you with?”), but is often less about extracting information than gaining the submission of the victim.35

As a result of these commonalities, domestic violence is increasingly recognized as torture under international law when it is “of the nature and severity envisaged by the concept of torture and the state has failed to provide effective protection.”36 Thus far, the Committee Against Torture, the U.N. Special Rapporteur on torture and now the European Court of Human Rights have concluded that severe domestic violence falls within the ambit of torture.37

Benefits of a Torture Classification

The question then arises: Why classify and treat domestic violence as torture? The answer is multi-faceted but ultimately “[t]he value of re-conceptualizing extreme forms of domestic violence is the revelation that private torture is as acute and harmful as official torture.”38

Greater International Significance

Victims of domestic violence could benefit from the elevated legal status of the prohibition of torture. The prohibition of torture is considered one of a select few jus cogens human rights norms.39 Jus cogens (Latin for “compelling” or “higher law”) indicates a norm that is ranked higher in the international hierarchy than other types of law.40 In the popular imagination of much of the world, “civilized” societies do not resort to torture and the use of torture can be used to earmark “backward” nations.41 Accordingly, the issue of torture elicits intense emotional responses, as demonstrated by the recent heated and prolific debate on torture by U.S. officials.42

Domestic violence, arguably, does not imply the same level of gravity or need for urgent action that torture does and, perhaps as a result, does not receive the same legal treatment. Labeling acts of domestic violence as torture invokes the heightened level of international condemnation and intense emotional response elicited by torture.43

Availability of Protective Mechanisms for Torture

Another benefit of this characterization is the resultant availability of the protections and complaint mechanisms that exist for torture. Although there are legal instruments addressing violence against women, including the Convention on the Elimination of All Forms of Discrimination Against Women and the Inter-American Convention on the Prevention, Punishment and Eradication of Violence Against Women, additional fora and avenues of liability could bolster international legal protection for victims of domestic violence.

International mechanisms for torture claims include the Inter-American Commission on Human Rights and the Optional Protocol to the International Covenant on Civil and Political Rights. Victims may also file torture claims with international and regional courts, such as the European Court of Human Rights and the Inter-American Court of Human Rights.44

Moreover, victims of domestic violence may take advantage of the protective features of CAT, the high-profile international convention exclusively concerned with torture.45 CAT’s quasi-judicial monitoring body, the Committee Against Torture, consists of independent experts who carry out CAT’s mandate to eradicate the practice of torture through two mechanisms. First, the Committee considers and comments on state reports documenting compliance with CAT, which states are required to submit every four years.46 Second, under CAT’s 2006 Optional Protocol, the Committee considers complaints from individuals against states that have accepted its jurisdiction.47 The Committee has not yet decided any individual complaints of domestic violence, but it has determined that incidences of domestic violence may constitute torture within the purview of CAT.48

Aside from the European Court of Human Rights, none of the above fora have held states accountable for domestic violence by way of torture. The Opuz decision has now opened the door for them to do so, and the next few years could see a proliferation of domestic violence as torture claims.

Combined Advocacy Efforts

Another benefit of the inclusion of domestic violence under the torture rubric is the merger of the work of activists focused on feminist issues and international human rights generalists. Feminist advocates have made laudable progress in bringing domestic violence into global public consciousness and discourse. Meanwhile, human rights organizations have worked to broaden the international community’s conception of what constitutes torture and to hold governments accountable for preventing and prosecuting torture. How much stronger would the domestic violence and human rights movements be if these two more consciously collaborated and tapped into each other's work?49

Conclusion

The recent media frenzy surrounding torture allegations against Bush administration officials has contributed to an increase in international legal attention on the issue of torture. The time is ripe to shine a light on the private torture that many women endure on a daily basis. This is also the moment to underscore the fact that domestic violence is a violation of international human rights law, thereby refashioning the legal response to domestic violence both internationally and nationally. Simply recognizing domestic violence as torture will not solve the problem, but it could help make domestic violence a front-burner issue – hastening improvements in state response and strengthening the call for absolute condemnation of this practice.50

References

  1. In this discussion, the term “domestic violence” refers to violence by men against women with whom they are or recently were in a relationship. Broadly speaking, domestic violence is understood to involve violent acts that occur in domestic settings and includes partner abuse, child abuse and abuse of elders. However, partner abuse has dominated the discourse on domestic violence and most domestic violence cases involve male violence against women. See Abhinaya Ramesh, Why is Domestic Violence a Human Rights Concern? (summarized by Janice Duddy) Dec. 2, 2008, http://www.awid.org/eng/Issues-and-Analysis/Library/Why-is-domestic-violence-a-human-rights-concern/(language)/eng-GB.
  2. World Health Organization, WHO Multi-Country Study on Women’s Health and Domestic Violence against Women: Initial Results on Prevalence, Health Outcomes and Women’s Responses 27-30 (2005). The difficulty in finding more recent and detailed statistics on the global prevalence of domestic violence underscores the general lack of attention and resources given to this issue. The ten countries surveyed were Bangladesh, Brazil, Ethiopia, Japan, Namibia, Peru, Samoa, Serbia and Montenegro, Thailand and Tanzania. Japan was the only country with a domestic violence rate less than twenty percent. Id. at 20.
  3. World Health Organization, World Report on Violence and Health 90-91 (2002).
  4. See U.N. News Service, More countries have laws banning domestic violence, says U.N. women’s rights official, Nov. 22, 2006, http://www.un.org/apps/news/printnewsAr.asp?nid=20703; The Secretary-General, In-depth study on all forms of violence against women, ¶ 208, U.N. Doc. A/61/122/Add.1 (July 6, 2006) (“Some countries have specific laws on domestic violence while others address domestic violence under laws on assault, grievous bodily harm.”)
  5. See Bonita C. Meyersfeld, Reconceptualizing domestic violence in international law, 67 Alb. L. Rev. 371, 398-401 (2003).
  6. Shauna Curphey, Amnesty Pushing Nations to End Gender Violence, Women’s ENews, Mar. 19, 2004, http://www.womensenews.org/article.cfm/dyn/aid/1755.
  7. Opuz v. Turkey, Eur. Ct. H.R., App. No. 33401/02, Judgment, ¶¶ 154-76 (June 9, 2009).
  8. Curphey, supra note 6.
  9. See Hilary Charlesworth & Christine Chinkin, The Boundaries of International Law: A Feminist Analysis 234-35 (2000).
  10. See Velásquez-Rodriguez v. Honduras, Judgment, Inter-Am. Ct. H.R. (Ser. C) No. 4 (1988).
  11. Id. ¶ 172.
  12. For example, the Human Rights Committee has stated that “[i]t is the duty of the State party to afford everyone protection through legislative and other measures as may be necessary against the acts [of torture], whether inflicted by people acting in their official capacity, outside their official capacity or in a private capacity.” Human Rights Committee, ICCPR General Comment 20, ¶ 2 (1992).
  13. Ramesh, supra note 1. Across the globe, women are often relegated to the private sphere due to cultural and religious norms. In turn, women are vastly underrepresented in governmental branches that have the ability to implement change. See id.
  14. Human Rights Watch, Domestic Violence, www.hrw.org/women/domesticviolence.html. For example, in Pakistan, officials frequently express their belief that domestic violence is not a matter for criminal courts. And in Russia and Uzbekistan, it is common for police to “scoff at reports of domestic violence, and harass women who report such violence to stop them from filing complaints.” Id.
  15. Martha A. Fineman, The Vulnerable Subject: Anchoring Equality in the Human Condition, 20 Yale J.L. & Feminism 1, 3-5 (2008) (refuting the argument that the state should not intervene in marital and familial matters by pointing out that marriage and family are created, regulated and legitimized by the state).
  16. Human Rights Watch, supra note 14.
  17. Curphey, supra note 6. In 1993, the General Assembly adopted the Declaration on the Elimination of Violence Against Women, requiring states to exercise due diligence with respect to gender violence “whether those acts are perpetrated by the State or private persons.” Id. In 2006 the Special Rapporteur on violence against women observed that there is a rule of customary law that “obliges States to prevent and respond to acts of violence against women with due diligence.” The Special Rapporteur on Violence Against Women, Integration of the Human Rights of Women and the Gender Perspective: Violence Against Women, ¶ 29, delivered to the Commission on Human Rights, U.N. Doc. E/CN.4/2006/61 (Jan. 20, 2006).
  18. Committee on the Elimination of Discrimination Against Women, CEDAW General Recommendation 19, ¶ 24(r), U.N. Doc. CEDAW/C/1992/L.1/Add.15 (1992).
  19. See, e.g., Gonzales, et al. v. United States, Case 1490-05, Inter-Am. C.H.R., Report No. 52/07, OEA/Ser.L/V/II.130 Doc. 22, rev. 1 ¶¶ 53-61 (2007); Bevacqua and S. v. Bulgaria, Eur. Ct. H.R., App. No. 71127/01, Judgment, ¶¶ 65, 83 (June 12, 2008); Opuz v. Turkey, supra note 7.
  20. Gonzales, et al. v. United States, Case 1490-05, Inter-Am. C.H.R., Report No. 52/07, OEA/Ser.L/V/II.130 Doc. 22, rev. 1 ¶¶ 53-61 (2007); see also Fernandes v. Brazil, Case 12.051, Inter-Am. C.H.R., Report No. 54/01, OEA/Ser.L/V/II.111, doc. 20 rev. at 704 (2000) (holding the Brazil accountable for failing to prevent and punish domestic violence).
  21. Case of Bevacqua and S. v. Bulgaria, European Court of Human Rights, Application No. 71127/01, Judgment ¶¶ 65, 83 (June 12, 2008) (finding state responsibility for domestic violence in violation of the right to respect for family life, articulated in Article 8 of the European Convention on Human Rights (ECHR)); see also A.T. v. Hungary, Committee on the Elimination of Discrimination Against Women, Communication No. 2/2003, Views of the Committee on the Elimination of Discrimination against Women under article 7, paragraph 3, of the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women, ¶¶ 9.1-9.7 (2005) (“Women’s human rights to life and to physical and mental integrity cannot be superseded by other rights, including . . . the right to privacy.”)
  22. Opuz v. Turkey, supra note 7, ¶¶ 154-76. The relevant torture provision is ECHR Article 3, stating that “[n]o one shall be subjected to torture or to inhuman or degrading treatment or punishment.” The ECHR does not offer a definition of “torture."
  23. The Opuz judgment has also broken new ground in holding that acts of domestic violence can violate the right to life and the prohibition of gender discrimination. See id. ¶¶ 118-53, 177-202.
  24. This discussion will not address the often hazy distinction between torture and “other cruel, inhuman or degrading treatment or punishment.” See Committee Against Torture, CAT General Comment 2, ¶ 3, U.N. Doc. CAT/C/GC/2/CRP. 1/Rev.4 (2008) (observing that the obligation to prevent “other cruel, inhuman or degrading treatment or punishment” in practice “overlaps with and is largely congruent with the obligation to prevent torture” and that “the definitional threshold between [the two] is often not clear”).
  25. U.N. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT”), art. 1, Dec. 10, 1984. There are several operative definitions of torture and CAT’s torture definition is relatively narrow. By contrast, the Inter-American Convention to Prevent and Punish Torture defines torture as "the use of methods upon a person intended to obliterate the personality of the victim or to diminish [her] physical or mental capacities, even if they do not cause physical or mental anguish." Inter-American Convention to Prevent and Punish Torture, art. 2, Feb. 28, 1987. Additionally, several states, such as Canada, have decided to expand upon CAT Article 1 to explicitly include domestic violence under its definition of torture. Ezat Mossallanejad, Report on Canada’s Compliance to the Convention Against Torture (CAT), 2004, http://www.ccvt.org/ compliance- report.html.
  26. Rhonda Copelon, End Torture, End Domestic Violence, On the Issues, Winter 2009.
  27. Id. (citing the U.N. Secretary-General’s In-depth study on all forms of violence against women).
  28. Id.
  29. Id.
  30. Id.
  31. Id.
  32. Id.
  33. Charlesworth, supra note 9, at 234-45. A definition of domestic violence often cited by human rights groups conceptualizes domestic violence as a pattern of behavior used to establish power and control over another person through fear and intimidation, often including the threat or use of violence, when one person believes they are entitled to control another. See, e.g., National Coalition Against Domestic Violence, The Problem: What is Battering? http://www.ncadv.org/learn/TheProblem.php.
  34. Copelon, supra note 26.
  35. Id. Not everyone agrees that domestic violence fits the CAT definition of torture. At least one legal scholar has argued that “legally, severe pain, suffering, humiliation and injury constitute torture only if they serve some public purpose and if the status and role of the torturer emanates from a public authority and if the person being harmed is in custody.” Lisa Hajjar, Torture and the Future, Middle East Report Online, May 2004, http://www.merip.org/mero /interventions/hajjar_interv.html.
  36. Ramesh, supra note 1.
  37. See Committee Against Torture, supra note 27, ¶ 18 (emphasizing that states are in violation of their CAT obligations for “failure to prevent and protect victims from gender-based violence, such as rape, domestic violence, female genital mutilation, and trafficking”); Special Rapporteur on torture, General Recommendations of the Special Rapporteur on torture, ¶ c, http://www2.ohchr.org/english/issues/docs/ recommendations.doc; Opuz v. Turkey, supra note 7, at ¶¶ 154-76.
  38. Meyersfeld, supra note 5, at 375.
  39. See, e.g., Prosecutor v. Furundžija, ICTY, Case No. IT-95-17/1-T, Judgment, ¶ 153 (Dec. 10, 1998). Other norms generally understood to hold jus cogens status include the prohibitions of genocide and slavery. Charlesworth, supra note 9, at 119-20.
  40. Prosecutor v. Furundžija, supra note 39, ¶ 153. This jus cogens status also means that the prohibition of torture is non-derogable. See Vienna Convention on the Law of Treaties, art. 53, Mar. 21, 1986; CAT, supra note 25, art. 2.2 (“No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification for torture.”) The right to be free of torture is also customary international law, binding all states regardless of the treaties they have ratified and conferring universal jurisdiction. See Prosecutor v. Furundžija, supra note 39, ¶¶ 153-56.
  41. In practice, torture is actually committed in two-thirds of the world’s countries. Hajjar, supra note 35.
  42. Scott Shane, Torture Versus War, N.Y. Times, Apr. 18, 2009, at WK1. Struck by the people’s greater emotional response to torture than to wartime casualties, commentators have observed that “[w]hat’s fascinating to people about torture is it gives one person absolute power over another.” Id.
  43. The issue of whether acts of domestic violence that constitute torture could attain jus cogens status is beyond the scope of this discussion.
  44. See Winston P. Nagan & Lucie Atkins, The International Law of Torture: From Universal Proscription to Effective Application and Enforcement, 14 Harv. Hum. Rts. J. 87, 95 (2001).
  45. See Carin Benninger-Budel & Lucinda O’Hanlon, Expanding the Definition of Torture, 2 Human Rights Dialogue 10 (2003).
  46. CAT, supra note 25, art. 19(1). CAT is the only treaty to allow Committee members to make a confidential inquiry about a specific country when it receives "reliable information which appears to . . . contain well-founded indications that torture is systematically practiced in the territory of the State Party." Id. art. 20; The Advocates for Human Rights, U.N. Committee Against Torture, Nov. 2008, http://www.stopvaw.org/UN_Committee_Against_ Torture.html.
  47. Although the Committee Against Torture does not have direct enforcement powers, non-governmental organizations and U.N. bodies use diplomatic pressures and public opinion to compel states to meet their treaty obligations. Curphey, supra note 6. It is also worth noting that the Committee does not accept anonymous complaints, and this lack of anonymity may deter domestic violence victims who fear antagonizing their abusers. See CAT, supra note 25, art. 22(2).
  48. See Committee Against Torture, supra note 24, ¶ 18. Victims of domestic violence may also be able to bring torture claims in national courts. In addition, victims of domestic violence may invoke CAT Article 3, which prohibits the extradition of a person to a state likely to torture the person. Women fleeing their abusers have already successfully obtained asylum status by invoking this provision. See Benninger-Budel, supra note 45.
  49. See Alyson Kozma & Sheil Dauer, Domestic violence as torture: Integrating a human rights framework into the domestic violence movement, Off Our Backs, Dec. 2001, at 2.
  50. Copelon, supra note 26.