Thursday, September 23, 2010

The Application of International Law to Systemic Intimate Violence

I am very grateful to IntLawGrrls for the opportunity and space to contribute this guest post discussing my work on systemic intimate violence and international law. The following discussion is based on my book, Domestic Violence and International Law, and the international law dialogue held yesterday at Chatham House on this subject.

The application of international law to domestic violence raises both intuitive and intellectual questions. Is there a right to be free from domestic violence in international law? If there is such a right, what is its substance? And wherever there is a right, of course, we search for the corresponding legal obligation. How do we categorise that obligation in international law and to whom does this obligation apply? Finally, the most intuitive and human of all questions, how can the broad – and by definition – global network of international law possibly assist people in the most intimate and private contexts of their lives?
I address these problems in the book Domestic Violence and International Law. The book emanates from the tragic uniformity of domestic violence stories by women around the world. Equally disquieting is the uniformity of the state’s non-response. In the face of severe acts of domestic violence, including battering, breaking, burning, raping, hacking forced sexual encounters with third parties, threats of harm, verbal denigration and murder, the state is silent. The remedies that exist in the public world simply fail to permeate into the private sphere to attenuate intimate harm.
In this discussion, I will consider firstly whether there is an authoritative right in international law to be free from domestic violence and, if so, what the substance of that right should be. I then consider the corresponding state obligation. And finally I address the most intuitive question, namely, how can international law benefit victims and survivors of systemic intimate violence?
Assessing the existence of a right in international law is difficult. There is no central law-making authority. According to the statute of the International Court of Justice (art 38), there are four sources of international law, namely, treaties, customary international law, the law of (so-called) civilised nations and finally, the jurisprudence of courts and tribunals and the writings of respected scholars. In the book I analyse these sources of law and conclude that, on a strict, black letter legal analysis, it is not clear that there is an authoritative principle in international law that states have an obligation to prevent domestic violence; however, I argue that we are in the amorphous process of norm crystallisation. We are on an irreversible trajectory towards an obligation in international law on states to protect victims and survivors of domestic violence.
This is evident from the following developments in international law. The first is the work of the special rapporteur on torture, who categorises domestic violence as a form of torture, prohibited under the Torture Convention. The second is the landmark ruling by the Inter-American Court of Human Rights in the ‘Cotton Field’ case, in which the Court held that Mexico was in breach of the Inter-American Convention on Human Rights and the Convention of Belem do Para for failing to investigate the disappearance and murder of women over a period of 15 years. Many of these deaths and mutilations were linked to domestic violence. There are also intense developments in Europe. In 2005 the Council of Europe Task Force to Combat Violence against Women, including Domestic Violence (EG-TFV) was established. This has led to developments regarding the adoption of a Europe-wide treaty regarding violence against women and domestic violence (the second draft of a CoE convention against violence against women has been distributed). The final important development is the decision of the European Court of Human Rights in the case of Opuz v Turkey (which has previously been discussed on this blog here), where the Court held that Turkey’s failure to respond to twelve years of domestic violence amounted to a violation of the right to life (art 2 of the European Convention); a violation of the right to be free from torture and ill-treatment (art 3 of the European Convention); and a violation of the right to non-discrimination on the basis of sex (art 14).
If we are to take steps to formalise an authoritative international law obligation on states to prevent and respond to domestic violence, it is important to specify the details of the right and the corresponding duty. As regards the right, I propose that not all forms of domestic violence should trigger the provisions of international law. Rather, it is a specific type of violence, what I refer to as systemic intimate violence, which warrants the application of international law. Systemic intimate violence consists of five co-existing elements. The first element is severity – the harm must be severe and can consist of both physical and non-physical violence. There are two important points to make here. I am not suggesting that severity of harm is a test for all forms of domestic violence. Rather it is severity of harm that is an element for systemic intimate violence under international law. This is uncomfortable but necessary. International law regularly distinguishes between degrees of harm (torture v ill-treatment; genocide v murder; mass rape v rape) and it is a form of prolonged, severe harm that triggers in global network of law. If domestic violence is attended to by the state, then in essence the right to protection has been fulfilled. What we examine in international law is where prolonged, severe harm is unaddressed. The test for severity in international law is an objective one (A v United Kingdom) and we ask whether the humiliation to the victim is so intense that a reasonable person would be outraged (Prosecutor v Aleksovski). The following stories of torture, compared to stories of domestic violence, are informative:
I was lying on the floor, two guards held my legs while another kicked me in the testicles. I would lose consciousness and come to, I lost consciousness four times. They hit me around the head, there was blood. They would beat me unconscious and wait until I came round: ‘He’s woken up, and they would come in and beat me [again].
-- Chechnyan survivor of torture by the Russian Army
From the moment Rodi Adalí Alvarado Peña married a Guatemalan army officer at the age of 16, she was subjected to intensive abuse, and all her efforts to get help were unsuccessful. Her husband raped her repeatedly, attempted to abort their second child by kicking her in the spine, dislocated her jaw, tried to cut off her hands with a machete, kicked her in the vagina and used her head to break windows.
-- Guatemalan Woman
[F]irst they would beat you and then you would have to lie down on the floor and crawl to them. You would have to say, “Request permission to crawl.” Me personally, they beat me on the knees, with clubs, and on the kidneys.
-- Chechnyan survivor of torture by the Russian Army
He was sittin’ on the bed. Had his .357 Magnum. He said, ‘June, you get down on this floor right now. You crawl to me.’ And when I got to his feet he took that pistol and hit me right alongside of the head. I thought I was gonna die. I still got the knot from it. He said, ‘if you even act like you’re gonna run I’ll blow your brains all over this wall.’
-- American Woman

The theme of severity of harm that is so intense that it would outrage the reasonable person, is evident.
The second element is that the violence usually operates on a continuum. The exigency of harm may not be in individual incident but in prolonged frequency of events. This is particularly important in domestic violence where violence is cyclical and individual acts seem benign but actually occur along a continuum of control and impotence. The notion of a continuum of harmful incidences was confirmed by the ICTY, noting that it was “sufficient to show that an act took place in the context of an accumulation of acts of violence which, individually, may vary greatly in nature and gravity”(Prosecutor v Kunarac). This element also featured in the Opuz decision: “Although there were intervals between the impugned events… the overall violence to which the applicant and her mother were subjected over a long period of time cannot be seen as individual and separate episodes and must therefore be considered together as a chain of connected events.”
The third element of systemic intimate violence is that intimacy. This is an important element for several reasons. The intimacy of helps to ‘disappear’ the violence, preventing the abused from reporting it and the authorities from recognising it. The reality, however, is that the highest rate of violence against women occurs in private relationships. Privacy presents an additional problem: the constitutional right to privacy traditionally is understood as a negative obligation to refrain from interfering with one’s private affairs. However, the ECtHR (Bevacqua and S v Bulgaria and Opuz v Turkey) and the CEDAW Committee (Yildirim v Austria; Goekce v Austria) have recognised that the right to privacy is also a positive obligation to secure the private realm so that individuals may flourish. Privacy cannot be understood merely as a right to be left alone; it is linked affirmatively to the right to liberty, the right to autonomy and self-determination.
The fourth element is group vulnerability. This is not to say that women have some essentialized element of vulnerability and weakness but rather that the legal system, to which women look for assistance, often is inert. Women as a group are affected by domestic violence more than any other group (such as children, the elderly, the disabled, men and non-human animals) and the greatest cause of death and disability among women aged 15-44 worldwide – more than HIV, TB and malaria – is domestic violence.
The final element is that of state failure. In the face of extreme or continued violence, in the private realm, occurring repeatedly against a particular social group, the state is unable or unwilling to respond. This is evidenced by the sad cases of Kontrova v Slovakia and Opuz v Turkey, where the claimants in both cases suffered years of severe physical and non-physical violence, resulting in the death of their children and mother, respectively.
These are the elements of systemic intimate violence.
The next step is to identify the principles of state responsibility in international law and how they might apply in the context of systemic intimate violence. The principles of state responsibility are codified in the International Law Commission’s Draft Articles on the Responsibility of States for Internationally Wrongful Acts. In order to determine whether a state has committed an international wrongful act, there must be (i) conduct and (ii) wrongfulness. A state can be responsible for both positive acts and for omissions or a failure to act. In the Corfu Channel case, the ICJ held that Albania had known that there were mines in its territorial waters and had failed to notify third parties about this danger. As a result, Albania had committed an internationally wrong act, not because it had laid the mines but because it has failed to warn third parties about their presence.
If the state fails to act where it has an international legal obligation to do so, the wrongfulness test asks us to consider what steps a state ought to have taken to fulfill this legal duty. The approach adopted in international law is the so-called due diligence standard. The principle, originally enunciated in the case of Velasquez Rodriguez v Honduras and fortified by the UN special rapporteur on violence against women, holds that an illegal act, committed by a private person, can lead to international responsibility of a state, not because of the act itself, but because of the lack of due diligence to prevent the violation or respond to the harm.
How does this apply to cases of systemic intimate violence? The test can be summarised as follows: (i) did the authorities know, or ought they to have known, at the time of the existence of a real and immediate risk to the life or well-being of an identified individual from the criminal acts of a third party; and, if so (ii) did the state fail to take measures within the scope of its powers, which, judged reasonably, might have been expected to avoid that risk. This test can be answered in the affirmative in the Kontrova case, where the state knew about the history of violence against the complainant when the complainant reported that her estranged husband had taken their children. The state refused to act until the passage of 48 hours. During this time the complainant’s estranged husband shot and killed their two children and then himself.
The final question is how there can be any benefit in international law for people who experience systemic intimate violence. I propose a theory of non-coercive compliance, which, based on the work of Professors Koh and Reisman, focuses on the impact of international law through norm infiltration. International law is a standard-setting spectrum, to which states can aspire and on which individuals can rely. Fuelled by international actors, NGOs, international bodies and trans-national organisations, international law can effect global change in intimate settings. Specifically, international law human rights law has two functions. The first is an expressive value: international law gives a name to harm that previously fell outside established legal principles and draws a conceptual boundary around such conduct, prohibiting it. Secondly, international law has an implementing capacity, compelling state to modify their laws in accordance with the international standards.
These values of international law are best evidenced in respect of enforced disappearances. Traditionally, the legal remedies of habeas corpus and extra-judicial killings were not available to the families of the kidnapped political dissidents because the state denied involvement. It was only with the development of the concept of enforced disappearances and the lobbying at the international level, that the nuanced nature of this harm was properly understood and an appropriate legal response fashioned. Today the UN working group on enforced disappearances has clarified roughly 1,763 cases.
These benefits are also evident in respect of systemic intimate violence. An analysis of the CEDAW Committee’s reports from 1984 to present day reveals an interesting pattern. Prior to 1992 domestic violence is rarely mentioned in states’ reports to CEDAW or in the CEDAW committee’s responses. After 1992, however, domestic violence becomes the key feature of states’ reports and of the committee’s response. What happened in 1992? This period saw the greatest global call at the time regarding violence against women and the responsibility of states to prevent domestic violence. It culminated in the General Assembly Declaration on the Elimination of Violence against Women.
I analysed three states’ reports to CEDAW before and after 1992, namely, Nicaragua, Sweden and Mexico. In respect of each state the same pattern applies. Prior to 1992 there is no mention of domestic violence. After 1992 the states begin the process of describing law reform, policy creation and the allocation of funding to the problem of domestic violence. So international law not only facilitated a dialogue regarding domestic violence against women at international law but it led to significant legal changes at the national and municipal level.
This is not to overstate international law. Rather it demonstrates that international law works best when viewed as a forum for the creation of norms and standards that, through a process of norm creation and infiltration, can alleviate harm in the most intimate part of one’s life.

No comments: