Evolution of international law to tackle violence against women

Australia recently argued before the Committee Against Torture that violence against women does not fall within the Committee’s mandate. Australia was unequivocally wrong to do so – both legally and ethically speaking. It’s also the only country to argue this. But Australia’s position does deserve some contextualising.

This is Australia’s fifth report to the Committee Against Torture. This is the first time the Committee has asked Australia to report on violence against women.

The Committee Against Torture is the authoritative body, comprised of independent experts, tasked with interpreting the Convention against Torture and other Cruel, Inhuman and Degrading Treatment or Punishment. The function of the Committee is also to monitor and review countries’ compliance with the Convention.

The reason the Committee now considers violence against women within its mandate is reflective of the wider movement to ensure international human rights law is inclusive of women’s experiences. The Committee Against Torture’s changed position is also reflective of the feminist movement’s achievement in bringing violence against women out of the private and into the public sphere.

One of the single biggest human rights issues worldwide is violence directed at women, because they are women. It’s therefore entirely appropriate that the Committee now sees some forms of violence against women as gender-based acts of torture. While violence against women takes many forms, one of the most pervasive is domestic violence.

Just like the common law, international human rights law is not set in stone and can evolve. Just as the common law once disregarded rape within marriage, so too did the international human rights system disregard domestic violence as a significant human rights issue. Just like the common law has corrected itself, so too has international human rights law.

Nowhere is this more evident than in the Convention on the Elimination of All Forms of Discrimination against Women. Drafted in 1979, the Women’s Convention never once mentions violence.

It was not until 1992 that the Committee on the Elimination of Discrimination against Women rectified this oversight by clarifying that violence against women is a form of discrimination, and therefore falls within the Women’s Convention. Since this time, countries reporting to the Women’s Committee have been required to answer questions about violence against women – even though the Convention doesn’t mention the issue. Australia has not taken issue with this.

Given the evolving nature of international human rights law, it’s about time that the Committee Against Torture included women’s experience within its mandate. The Committee Against Torture is arguably one of the international systems most conservative: traditionally comprised almost exclusively of men, the Committee has tended to rely on the public/private distinction when it comes to violence. That they no longer cling to such outdated understandings should be celebrated, rather than discouraged.

In other words, the Committee now accepts that torture is not just the removal of finger nails by state officials, but can also capture situations where women live in a constant state of fear due to domestic violence.

Legally, Australia is wrong to argue against this evolving definition. Essentially, when the Committee Against Torture says that violence against women now falls within its mandate – it does. Australia arguing against this is like a magistrate arguing a point of law against a High Court judge. Arguably in the 80’s and 90’s Australia might have had ground to argue that gendering the definition of torture was just an emerging legal norm. But by the 2000’s there is no wriggle room: the norm has emerged.

Ethically, it makes no sense for Australia to take the position that it did. Violence against women is pervasive in Australia and is the single biggest human rights issue facing Australians. One in three women experience domestic violence, and one in five sexual violence. Unsurprisingly, marginalised women, including Aboriginal and Torres Strait Islander women and women with disability, experience violence at far higher rates.

Australia has clear international human rights obligations to prevent, prosecute and punish perpetrators of domestic violence, and to reparate victims. What this means is that the Australian Government, and respective state and territory governments, are responsible for preventing and properly addressing domestic violence. Conservatively speaking, these obligations have been established in international human rights law for at least the last two decades.

While Australia argued against the expansion of the Committee’s ambit, they did go on to provide all the requested information. Equally, when being questioned in Geneva, Australia did somewhat backpedal from its problematic position. Both of these are good things – but don’t detract from the fact that the Australian Government shouldn’t have taken the position it did to start with.

It is in the interests of all Australian’s that violence against women and its insidious consequences are dealt with firmly and effectively. Australia should not spend its time arguing – to no avail – against accepted international legal norms, but rather, take on notice that the Committee Against Torture wants answers when it comes to endemic rates of domestic violence in Australia. And it’s right to do so.

Ruth Barson is a senior lawyer at the Human Rights Law Centre. She is on twitter @RuthHRLC.