Published as submitted, in response to Ms. Šimonović’s „call for sumissions on the adequacy of the internatinal legal framework„, in her function as special rapporteur at the United Nations Human Rights Office of the High Commissioner (OHCHR)
To the Distinguished UN Special Rapporteur on Violence Against Women, its causes and consequences, Ms. Dubravka Šimonović,
Kofra and Abolition 2014 (Germany) and Edmonton Small Press Association respectfully present this joint submission regarding the incorporation and implementation of the international and regional standards related to violence against women and the more than necessary reinforcement of universal human rights standards for women and girls.
Kofra (Kommunikationszentrum für Frauen zur Arbeits- und Lebenssituation) is an autonomous women’s centre in Germany coordinating and supporting women’s actions regarding their work and life situation, and Abolition 2014 is a group of activists conderned with the sexual exploitation of women, both from Germany and from abroad.
We thank you for recognizing the need to address the adequacy of the international legal framework on violence against women in the context of their incorporation and implementation within international and regional standards related to violence against women, and within domestic law. We also suggest that a discussion be held on their implementation and incorporation into guidelines for international bodies and agencies when active in any area related to human rights.
These are our considerations regarding your questions:
Do you consider that there is a need for a separate legally binding treaty on violence against women with its separate monitoring body?
The Convention on the Elimination of Discrimination against Women (CEDAW) is a legally binding treaty prohibiting violence against women and has been ratified or acceeded by 189 states. Its General Recommendation No. 19: „25 years of CEDAW General Recommendation No. 19 (1992): Accelerating efforts on gender based violence against women“ is currently being updated.
A clear implementation of this Convention with the updates suggested in the joint submission by Equalty Now, the Coalition Against Trafficking in Women, the European Women’s Lobby and the Coalition Against Prostitution, as well as the Comments submitted by the Swedish Women’s Lobby would constitute such a legally binding treaty.
Other treaties to be incorporated into such a legally binding framework to comprehensively denounce, reject and end violence against women include the Council of Europe Convention on preventing and combating violence against women and domestic violence from 2011 (“Istanbul Convention” ) and the currently revised draft Convention Against Sexual Exploitation, produced and presented by an Expert Group Meeting on Sexual Exploitation sponsored by the UNESCO Division of Human Rights and the Coaltion Against Trafficking in Women at the Penn State University.
Reasons for updating the existing Conventions or for introducing a separate treaty regarding Violence against women in view of the questions put forward in this invitation for submissions:
Advances in the medical sciences, reproductive medicine and new medical practices contribute and facilitate harmful practices endangering the well-being, health, autonomy and equality of women. These practices include surrogacy and all the practices around surrogacy like the removal of ova and the corresponding market for both, as well as practices like labiaplasty, all of which have an impact on the way practices currently perceived as acts of violence such as forced birth, sexual pre-determination or FGM are viewed and marketed. Furthermore, they are harmful in and of themselves as they target women specifically on the grounds of their sex and biology and devise ways to use their bodies for the benefit of others than the women themselves, for profit, for exploitation or to maintain a view of women that is in stark contrast to the fundamental principles of women’s equality in dignity and rights. The production of (genetically assembled and designed) babies and the blurring of harmful, but “voluntary” pracitices within the beauty industry with harmful “traditional” practices like FGM also results in an intersection of various forms of discrimination, most notably those of racialisation and marginalisation due to poverty.
The same is true to a lesser degree of Western notions of practices that may not have any noticable impact within some societies or privileged social groups – like “polyamoury” as a marital status – but that will serve to justify unequal practices like polygamy to the detriment of women who do not enjoy a privileged status.
In addition we see a rising acceptance of human rights violations, and especially violations of the human rights of women, as a form of justication for other human rights abuses. The entrapment of women within a caste system, their dispossession in rural areas, their condemnation to poverty, their abrogation of rights to education or practices denying them recourses against HIV or for reproductive health are cited in order to render other abuses like trafficking or the abuse of women and their bodies in the global sex industry acceptable or desirable by comparison. In view of any meaning of human rights as inalienable and as indivisible this is utterly inacceptable.
The increasingly confrontational nature of international relationships along problematic ideas of “West” and “East” also results in the framing of harmful practices against women – be they directly or indirectly coercive – as either proud gestures of anti-imperialism or defiant gestures of “freedom”, as recent discussions on various forms of clothing or on the pervasiveness of pornography have shown.
Equally, attempts at the incorporation of regional standards should not be made to serve to undermine international safeguards regarding the saftey of women and their equality.
A reaffirmation of a common and legally binding international treaty could prevent women’s rights to equality in rights and in dignity, and to safety from violence as well as to independence and development from becoming the political playground and superficial justification for state powers to enforce their domestic or international strategies and aims.
Do you consider that there is an incorporation gap of the international or regional human rights norms and standards?
Recent reports on sexual violence and practices of sexual exploitation by peace keepers that had to be specifically addressed (!) show that the incorporation of international or regional human rights norms and standards is not regarded as guaranteed and self-evident. The same is true regarding the actions and policies undertaken especially by UN bodies such as those addressing HIV. Basing a policy on men’s unfettered sexual access to women as an unquestionable practice and basic male right disregards women’s rights to equality and to safety. Understanding and framing sexual activity as a male right and limiting restrictions or problem awareness around sexual practices to issues of men’s health abrogates women’s rights to sexual freedom, independence and autonomy. Condoms may possibly provide some protection against some STDs, but they are not effective in the prevention of violence against women, be that sexual, physical, emotional, economic or institutional. Decriminalising women in prostitution not to increase their safety and their access to health and exit services but predominantly to increase their accessability by men does not diminish sexual or other violence against them. Publicity campaigns endorsing the view of women as sexual objects or objects of sexual gratification may temporarily offer some marketing chances for individual women within an unequal industry that thrives on the stigmatisation and discrimination of women, but do not contribute to women’s equality which is a prerequisite to really ending violence against women. The decriminalisation of the women (or others) who are in prostitution is a necessary step to their safety, but not if that step is rendered meaningless by creating a situation around the women that effectively removes any recourse against violence against them by effectively decriminalising such violence.
There is no question that CEDAW and the other Conventions regarding the human rights of women, and especially violence against women, are not yet ratified in all countries, and that even where such Conventions have been ratified, not enough is done to ensure the implementation of these Conventions and women’s access to courts or institutions to ensure their implementation. There is no doubt that this is also true of regional human rights instruments (e.g. treaties, conventions, declarations).
Do you believe that there is a lack of implementation of the international and regional legislation into the domestic law?
Germany has failed and is failing to incorporate and implement international human rights legislation, the provisions by CEDAW, the Council of Europe Convention on preventing and combating violence against women and domestic violence from 2011 (“Istanbul Convention” ) and various trafficking Conventions. Examples where this is most noticeable include:
(1)
No special or effective provisions / very hesitant implementation of provisions to safeguard refugee women during the flight, their arrival in Germany, their stay especially in the first shelters. Women are housed together with men, often have no possibility even to lock the doors to their rooms, and must pass groups of men on their way to common facilities such as kitchen or bathrooms. Their participation in women-specific programmes is being undermined by the layout of living quarters and community centres in the shelters which again often mean passing through various groups of men, both other refugees or security personnel, from their rooms to the community rooms. As a result of poor attendance by women, these programmes are then ended. (Munich, Bayernkaserne, 2015). Security personnel is not trained to take the specific situation of women into account, demands that the cheapest provider for security will be employed means that often those with the least training and awareness are awarded the respective contracts.
The situation of refugee women has been noted by the EU, and is only slowly addressed within Germany.
(FRA – European Union Agency For Fundamental Rights Media release:
European Parliament Directory-General for Internal Policies, Policy Department C: Citizens‘ Rights and Constitutional Affairs; Reception of female refugees and asylum seekers in the EU. Case Study Germany.
http://www.europarl.europa.eu/RegData/etudes/STUD/2016/536497/IPOL_STU(2016)536497_EN.pdf )
(2)
The decriminalisation of what is viewed as “operational aspects of the sex trade”, i.e. most forms of procuring (“pimping”) and a definition of trafficking for the purpose of sexual exploitation that place almost impossible requirements on a plaintiff to prove trafficking means that women who are trafficked into the sex industry and/ or financially exploited in it have practically no recourse in pursuing justice – be that criminal justice or forms of compensation in civil law. A recent case decided in Hamburg on 23 June 2016 is a stark example where trafficking into the sex industry, exploitation, kidnapping and sexual violence were not pursued by the courts, and where injuries to the victim resulting from her efforts to free herself from an apartment she had been locked into were finally ruled to be “a work accident”. (http://grundundmenschenrechtsblog.de/wp-content/uploads/2016/08/Urteil-SG-HH-vom-01072016-Prostitution-und-Arbeitsunfall-SGB-VII-anonymisierte-Fassung.pdf ) While this results in the compensation of the woman’s state regarding her medical bills it also highlights that most cases even of grievous human rights violations are not legally pursued in Germany.
This abrogates the women’s rights to due course and fair legal process as victim of crimes.
(3)
While Germany does not allow child marriages (or polygamy) it recognises the validity of such marriages if they were enacted in other countries. Currently this facilitates child marriages in the context of what is termed “the refugee crisis” in Europe.
(4)
Laws against stalking are ineffective in most cases, as they can and will only be applied if the perpetrator’s behaviour has effectively caused a woman to either lose/ change her place of employment, move house, change her name, demanded and been granted the right not to be publicly registered at her place of residence and other serious impediments to her daily life. This effectively restricts women’s freedom of movement, employment, residence and safety, and their rights to due course and fair legal process as victims of crimes.
(5)
Recent legal changes regarding the rights of (biological) fathers have failed to incorporate an assessment of their impact on women/ mothers, and thus have failed to adhere to processes of “gender mainstreaming” as demanded by the EU. The effect of the current laws is an enabling of their abuse by men – the fathers‘ rights are used to stalk ex-wives / ex-partners, to restrict their rights of moving or movement via the fathers‘ rights on the residence and placement of the children, and they are used to eliminate safe women’s shelters.
Do you think that there is a fragmentation of policies and legislation to address gender-based violence?
Yes.
Internationally there is a fragmentation of policies and legislation due to the refusal by some stakeholders and UN bodies to comprehensively address the objectification of women as sexual beings for the benefit of men or as vessels for children on demand as a form of violence and to understand and address the objectification of women as a form of dehumanisation.
In practice this results in the abrogation of female sexual autonomy, and in a cultural framework worldwide that denies women the means to understand, to gain and to actively live sexual autonomy. This is achieved by either barring them from health and sexual education altogether in very restrictive societies, or by relentlessly exposing girls and women to objectifying imagery of their bodies and a suggestion that fixing a sales value to this body can serve as an adequate surrogate practice in the place of enjoying sexual freedom. The overwhelming presence of objectifying images and the pressures resulting on women and girls to auto-police their bodies deprive any possible advances in health and sexual education of meaning. Furthermore, the same images underline existing male dominated views of women that are incompatible with the equality of women and men both in dignity and rights, and in their standing and positions within any community.
Human rights violations that are immediately understood as such in the context of state action against men (or women) must also be understood as such in “private” or “domestic” contexts or in the context of economically coercive situations or situations affecting mostly women or girls, i.e. domestic service. This regards practices that have come to be understood as “non-state torture”. Torture must be understood and criminalised in all forms. We strongly support current efforts by the UN and NGO activists and experts in this regard.
(http://www.ohchr.org/Documents/HRBodies/CEDAW/HarmfulPractices/JeanneSarson-LindaMacDonald.pdf )
Other forms of fragmentation of policies and legislation hindering effective enforcement and guarantees of a protection of violence against women are the lack of binding definitions regarding aspects of violence, for example in the definition of rape, or of the violence perpetrated by men during a partnership, a close relationship or a family setting.
As of 2015 Spain only statistically recognises what is commonly termed “domestic violence” if the victim is hospitalised for at least one night. This is a mere example, and this clearly results in a serious distortion of any statistics which in turn distorts efforts and resources rendered to end such violence.
In all cases, governments administrative rights in defining violence against women make a monitoring of such violence difficult, any findings questionable and thus deprive women and citizens in general of effective polictical and public means to address the violence.
Addressing women’s rights across various UN documents – i.e. separately in CEDAW, the “Palermo Protocolls” and other documents also makes creates barriers to the access to and the knowledge of these rights.
Could you also provide your views on measures needed to address this normative and implementation gap and to accelerate prevention and elimination of violence against women?
Binding agreements on the various legal, political and statistical definitions of the various forms of violence against women.
Transparency during the entire process of monitoring, assembling, assessing and publishing of the data and policies regarding VAW.
Incorporation of conventions against sexual exploitation of all forms, and especially regarding areas under significant pressure due to the enormous profits generated by the violence, such as the violence in and of the sex industry.
Meaningful and mandatory education to be provided to women regarding their rights and equality.
Meaningful and mandatory edcuation to be provided to men regarding women’s rights and equality.
Strengthening of due course and women’s access to criminal and civil law and courts in securing their rights.
Mandatory inclusion of women’s groups at all international meetings, in all international agreements, especially in the context of peace talks and agreements, and the incorporation of their demands in any treaties or agreements. Mandatory input by these women’s groups and publication of their decisions.
Thank you in advance for your consideration of our request.
Banishea 