Violence against women: a new binding standard for 2015

The Council of Europe Convention on preventing and combating violence against women and domestic violence (the Istanbul Convention) entered into force on 1 August 2014. As we begin 2015, when the members of the treaty body (GREVIO) will be elected and the process of reviewing states’ conformity with this very detailed and practical convention will begin, it is a good moment to reflect on the possibilities which come with this new binding standard.

While this is a treaty negotiated and adopted within the Council of Europe, its values and antecedents are truly global. The general recommendations, concluding observations and jurisprudence of the Committee on the Elimination of All Forms of Discrimination, General Assembly Resolutions on violence against women and criminal responses to violence against women, regional treaties on women’s rights from the Americas and Africa were all influential on the content, as was the UN Secretary-General’s in-depth report on violence against women of 2006 and twenty years of insights from three successive Special Rapporteurs on violence against women, its causes and consequences. The treaty was negotiated by state representatives, some of whom were past and present members of CEDAW. Others were experienced members of feminist civil society, with in-depth practical knowledge of the demands of service provision to women escaping gender-based violence.

Christine Chinkin and Renee Romkens acted as advisers to the negotiation, with great distinction. Christine brought a deep knowledge of international human rights law, international humanitarian law and international criminal law. Renee brought a deep knowledge of the sociological research base on inequality and gender-based violence. Civil society were observers – with limited opportunities to engage with the debates – including the European Women’s Lobby, the ILGA-Europe (the European Region of the International Lesbian, Gay, Bisexual, Trans and Intersex Association), WAVE (Women against Violence Europe) and Amnesty International – the organization I represented during the negotiations.

The Istanbul Convention deals with violence against women, including domestic violence, within a legal and policy framework of promoting women’s equality, according to CEDAW Article 1 and the transformative commitment of the entire treaty. Among its purposes is to contribute to “the elimination of all forms of discrimination against women and promote substantive equality between women and men, including by empowering women.” (Article 1b). Its 65 substantive articles are based in a practical response to what we know about the practice of violence against women, and how to eradicate it.

The treaty provides for three engines of change to take action on this knowledge basis. At the national level, there is a requirement in Article 10 to establish a coordinating institution, “responsible for the coordination,  implementation,  monitoring  and  evaluation  of policies and  measures  to  prevent and combat all forms of violence covered by this Convention” which will enforce joined-up thinking and action within each member state. It is also responsible for coordinating the collection of data on violence against women, analysing and disseminate the results of the data. States are required to cooperate positively with civil society organizations (Article 9) and provide “appropriate financial and human resources for the adequate implementation of integrated policies, measures and programmes” (Article 8).

At the international level, there will be a monitoring process by a panel of experts to whom states must provide a report on the implementation of the Convention. The GREVIO is empowered to govern its own procedures (article 68(4)), receive information from civil society (Article 68(5)) and international organizations (Article 68(8)) and make recommendations to states on how to improve their implementation of the Convention. Exceptionally, the GREVIO has powers to undertake urgent reports in order to prevent “serious, massive, or persistent” violations of the Convention (Article 68(13)), even with the power to undertake visits to countries (Article 68(14)).

The third, and most novel, engine for change is to require states parties to invite their parliaments to participate in the monitoring of the implementation of the convention (Article 70), which is apt and resonant given the huge numbers of women affected by gender-based violence. Addressing violence against women is a matter for democratic scrutiny as well as implementation of the rule of law.

There are a number of exciting provisions within the substance of the law:

• Sexual orientation and gender identity are expressly included as impermissible grounds of discrimination, the first time these grounds have been including in a binding treaty (to my knowledge – I welcome Intl Law Grrls readers response to this).
• States are required to take action on broad range of different types of violence, including economic violence (Article 3(a)) psychological violence (Article 33), stalking (Article 34), FGM (Article 38) and sexual harassment (Article 40)
• Unacceptable justifications for crimes, including crimes committed in the name of so-called “honour” must be eradicated (Article 42)
• The definition of rape draws on positive jurisprudence from the ad hoc International Criminal Tribunals and the European Court of Human Rights case of M.C. v Bulgaria ((Application no. 39272/98, 4 December 2003 para 106, citing Prosecutor v. Kunarac, Kovač and Vuković, case no. IT-96-23, judgment of 22 February 2001)

“Consent must be given voluntarily as the result of the person’s free will assessed in the context of the surrounding circumstances.” (Article 36(2))

• Some issues relating to conflicts of rights and gendered stereotyping are deals with, for example, Article 31 requires that states parties “take the necessary legislative or other measures to ensure that the exercise of any visitation or custody rights does not jeopardise the rights and safety of the victim or children.” This deals with the common real risk of serious, sometimes fatal violence, that women, their children and families run when a violent former partner continues to have contact with children.

• The Istanbul Convention has a wealth of practical detail, including the obligation to undertake risk assessments whenever an act of violence against women is reported (Article 51) and to set up and support specialist services, including free 24/7 assistance helplines and rape crisis centres.