Star Law History
Violence against women and human rights
K N M Hossainul Haque
The human rights concept of today came into being at the end of Second World War in 1945. During this war, targeted genocide of certain population due to racial and ethnic prejudices occurred in unprecedented scale. The allied powers rationalised their war against the axis powers not only on the grounds of fighting their aggression but also to end their gross violation of human rights. After the war, countries of the world reached consensus to establish human rights as a foundation of the new world order. The Charter of the United Nations (1945) proclaimed equality of human beings irrespective of ethnicity, nationality, culture, language, religion, colour or sex. It was followed by the Universal Declaration of Human Rights (UDHR) adopted in 1948 that was founded on principles of equality and non-discrimination. Through the declaration, nations reaffirmed their commitment to ensure universal equality through inadmissibility of discrimination among human beings on pretext of any difference. The human rights principles in the UDHR were further detailed in International Covenant on Civil and Political Rights (ICCPR) and International Covenant on Economic, Social and Cultural Rights (ICESCR) both adopted in 1966. The UDHR, ICCPR and ICESCR are together called the International Bill of Rights.
'Women's rights are human rights'
However, the mainstream human rights ideology has been criticised for insufficient inclusion of women's rights mainly on two accounts. Its focus on common human experience of discrimination and inequality has led to exclusion of women's experiences and, marginalisation of women's distinct concerns. Secondly, emphasis on states and the public sphere has cornered the private sphere. But private sphere is often more important than public sphere as far as human rights of majority of women are concerned. Since mobility of most women are limited within private spheres in the existing patriarchal socio-economic context, that is where human rights violations against women mostly occur. To meet these limitations in the existing human rights framework, individuals and organisations working with women's rights began to propagate idea of Women's Human Rights or Human Rights of Women.
The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) of 1979 is an outcome of the new human rights perspective. It is the pioneer international instrument that specifically addresses human rights concerns distinct to women. Therefore, it is also known as the 'Women's Convention'. It combines civil and political rights on one hand and economic, social and cultural rights on the other. Premised on the principles of equality and non-discrimination, the convention calls for establishing gender equality through elimination of discrimination between women and men in all fields, both in public sphere and private sphere. In CEDAW, various forms of discriminations are understood as part of a common structural and dynamic process. Several institutions -- family, market, community and the state simultaneously interact to reinforce this web of discrimination. As practical way out of this discriminatory structure, CEDAW promotes 'Substantive Equality'. It includes equality of opportunity, equality of access to opportunity and equality of result or outcome. The substantive equality principle provides for not just prohibiting discriminatory practices but also initiation of proactive positive measures to address inequalities at institutional level.
Violence against women and the human rights framework
Despite its uniqueness and comprehensiveness in articulating women's human rights, CEDAW had one major limitation as the women's convention. Apart from the article 6 that deals with the issue of trafficking in women, there is no specific provision regarding violence against women in the convention. It was only in 1975 that violence against women was internationally recognised as a major impediment to women's advancement at the UN International Women's Year Conference in Mexico City. Therefore, in the late 1970s through the 1980s, violence against women was a taboo subject of discussion even in international fora on women's rights. It was still regarded a private matter needing no state or public level response. So, through much of the 1980s, violence against women became a focal point of international mobilisation for women's groups and other entities working on women's rights.
In response to the worldwide demand, the CEDAW committee framed the landmark General Recommendation 19 (also the recommendation or the GR 19) for effectively addressing violence against women within CEDAW. It provides extensive comments on application of specific articles of the convention in relation to violence against women, corresponding state obligations and, comprehensive recommendations on requisite legal, preventive and protective measures to be taken by states parties.
The recommendation argues that any form of discrimination against women within the meaning and context of article 1 of the Convention that may lead to “act that inflict physical, mental or sexual harm or suffering, threats of such acts, coercion and other deprivation of liberty” will constitute violence against women. It identifies eight areas of rights violation that impair or nullify the enjoyment by women the rights and freedoms resulting in their subjection to discrimination and gender based violence. These include a) right to life, b) right not to be subjected to torture, c) protection from armed conflict, d) liberty and security, e) equality in law, f) equality in the family, g) equality in health care services and h) just and favourable condition of work. Many of these are related to violence against women.
The adoption of General Recommendation 19 further motivated the ongoing global movement for mainstreaming of violence against women in international human rights agenda. It culminated at the United Nations World Conference on Human Rights that took place in 1993 in Vienna. Women from all over the world attending the conference joined hands in demands of a UN declaration on violence against women and appointment of a UN Special Rapporteur on this issue. All these mobilisation, agitation and lobbying ultimately paid off. Within six months of the Vienna Conference of 1993, United Nations General Assembly unanimously passed the United Nations Declaration on the Elimination of Violence Against Women (DEVAW). Then within a year the United Nations Human Rights Commission created the post of UN Special Rapporteur on violence against women, its causes and consequences.
Violence against women is a phenomenon much older than human rights concept. It is one of the major manifestations of gender discrimination, an essential outcome of the existing patriarchal social system. Mains-treaming of violence against women has engendered the international human rights framework. A much-needed clarity in understanding of human rights has been established. This has enhanced chances for protection of women's human rights the world over.
The author is Policy Advocacy and Research Officer, Action Network to Combat Violence Against Women (ANCVAW), a coalition of 14 national NGOs that is currently implementing an advocacy initiative for combating domestic violence against women.