The ‘Feminizing’ of Torture under International Human Rights Law

Leiden Journal of International Law

Volumn 19, Issue 2, 2006, Pages 349-391

  Edwards, Alice ^a  

^a Public International Law ^*  (United Kingdom)

Author keywords

definition of torture; due diligence; feminist theory; international human rights law; public private dichotomy; torture

Indexed keywords

EID: 85010164492     PISSN: 09221565     EISSN: 14789698     Source Type: Journal    
DOI: 10.1017/S0922156506003359     Document Type: Article

References (223)

1. A. Gallagher, ‘Ending the Marginalization” Strategies for Incorporating Women into the United Nations Human Rights System’, (1997) 19 Human Rights Quarterly 283.
2. GA Res. 39/46, 10 Dec. 1984; entered into force 26 June 1987.
3. See, e.g., H. Charlesworth, C. Chinkin, and S. Wright, ‘Feminist Approaches to International Law’, (1991) 85 AJIL 613, 628-30; H. Charlesworth and C. Chinkin, ‘The Gender of Jus Cogens’, (1993) 15 Human Rights Quarterly 63; A. Byrnes, ‘The Convention Against Torture’, in K. D. Askin and D. M. Koenig (eds.), Women and International Human Rights Law (1999), II, 183; C. A.MacKinnon, ‘On Torture” A Feminist Perspective on Human Rights’, in K. E. Mahoney and P. Mahoney (eds.), Human Rights in the Twenty-First Century” A Global Challenge (1993), 21; R. Copelon, ‘Recognising the Egregious in the Everyday” Domestic Violence as Torture’, (1994) 25 Columbia Human Rights Law Review 291.
4. Byrnes, ‘Feminist Approaches to International Law’ note 3, at 184.
5. C. A. MacKinnon, ‘Rape, Genocide, and Women's Human Rights’, (1994) 17 Harvard Women's Law Journal 5, 5 (emphasis in original).
6. C. Niarchos, ‘Women,War and Rape” Challenges Facing the ICTY’, (1995) 17 Human RightsQuarterly 649, 651.
7. See, inter alia, UN Report of Economic and Social Council, Mainstreaming the Gender Perspective into All Policies and Programmes in theUnitedNations System,UNDoc. A/52/3, 18 Sept. 1997; S/RES/1325 (2000) on Women, Peace and Security. For a review of gender mainstreaming within the United Nations, see S. Kouvo, Making Just Rights?MainstreamingWomen's Human Rights and a Gender Perspective (2004).
8. K. Knop, Diversity and Self-Determination in International Law (2002), 4.
9. UN Doc. A/RES/2200A (XXI), 16 Dec. 1966; entered into force 23Mar. 1976.
10. The jurisprudence of the two treaty bodies reviewed for this article covers the period from the first case before each committee until 31 Dec. 2004.
11. Charlesworth et al., Diversity and Self-Determination in International Law note 3; Charlesworth and Chinkin, Diversity and Self-Determination in International Law note 3.
12. Charlesworth et al., Diversity and Self-Determination in International Law note 3, at 614-15.
13. MacKinnon, Diversity and Self-Determination in International Law note 5, at 5.
14. C. A. Littleton, ‘Equality and Feminist Legal Theory’, (1987) 48 University of Pittsburgh Law Review 1043, 1050-2;N.Naffine, ‘Sexing the Subject (of Law)’, inM.Thornton (ed.), Public and Private” Feminist LegalDebates (1995)
15. S. L. Bem, The Lenses of Gender (1993), 2; C. Gould, ‘TheWoman Question” Philosophy of Liberation and the Liberation of Philosophy’, in C. Gould and M.W.Wartofsky (eds.),Women and Philosophy” Toward A Theory of Liberation (1976), 5-6; B. E. Herna’ ndez-Truyol, ‘Women's Rights as Human Rights-Rules, Realities and the Role of Culture” A Formula for Reform’, (1996) XXI Brooklyn Journal of International Law 605, 651; K.Mahoney, ‘Theoretical Perspectives onWomen's Human Rights and Strategies for their Implementation’, (1996) 12 Brooklyn Journal of International Law 799; U. A. O'Hare, ‘RealizingHuman Rights forWomen’, (1999) 21 Human Rights Quarterly 364, 365-6;MacKinnon, ‘Equality and Feminist Legal Theory’ note 5.
16. H. Charlesworth, ‘General Introduction’, in Askin and Koenig, ‘Equality and Feminist Legal Theory’ note 3, I, at xix, xx. See also A. Byrnes, ‘Women, Feminism and International Human Rights Law-MethodologicalMyopia, Fundamental Flaws or MeaningfulMarginalization?” Some Current Issues’, (1992) 12 Australian Yearbook of International Law 205.
17. See, e.g., E. Brems, ‘Enemies orAllies? Feminism andCulturalRelativism asDissidentVoices inHumanRights Discourse’, (1997) 19 Human Rights Quarterly 136; J. A. M. Cobbah, ‘African Values and the Human Rights Debate” An African Perspective’, (1987) 9 Human Rights Quarterly 309; J. Oloka-Onyango and S. Tamale, ‘“The Personal is Political” orWhyWomen's Human Rights are Indeed Human Rights” An African Perspective on International Feminism’, (1995) 17 Human Rights Quarterly 691; K. Engle, ‘Culture and Human Rights” The Asian Values Debate in Context’, (2000) 32 NYU Journal of International Law and Politics 291; V. Amos and P. Parmar, ‘Challenging Imperial Feminism’, (1984) 17 Feminist Review 3; C. Harries, ‘Daughters of Our Peoples” International FeminismMeetsUgandan Law and Custom’, (1984) 25 Columbia Human Rights Law Review 493; T. E. Higgins, ‘Anti-essentialism, Relativism, and Human Rights’, (1996) 19 HarvardWomen's Law Journal 89; N. Kim, ‘Toward a Feminist Theory ofHumanRights” Straddling the Fence BetweenWestern Imperialism and Uncritical Absolutism’, (1993) 25 Columbia Human Rights Law Review 49; A. P. Harris, ‘Race and Essentialism in Feminist Legal Theory’, (1990) 42 Stanford Law Review 581.
18. Herna’ ndez-Truyol, ‘Enemies orAllies? Feminism andCulturalRelativism asDissidentVoices inHumanRights Discourse’ note 16, at 651.
19. Higgins, ‘Enemies orAllies? Feminism andCulturalRelativism asDissidentVoices inHumanRights Discourse’ note 19, at 89; Herna’ ndez-Truyol, ‘Enemies orAllies? Feminism andCulturalRelativism asDissidentVoices inHumanRights Discourse’ note 16.
20. R. Kapur, ‘The Tragedy of Victimization Rhetoric” Resurrecting the “Native” Subject in International/Postcolonial Feminist Legal Politics’, (2002) 15 Harvard Human Rights Journal 1, 18.
21. ‘The Tragedy of Victimization Rhetoric” Resurrecting the “Native” Subject in International/Postcolonial Feminist Legal Politics’., at 2. See also M. R. Mahoney, ‘Victimization or Oppression?Women's Lives, Violence, and Agency’, in M. A. Fineman and R. Mykitiuk (eds.), The Public Nature of Private Violence” The Discovery of Domestic Abuse (1994), 59-92.
22. See UN, On the Subject of Race, Gender and Violence against Women. Contribution of the UN Special Rapporteur on Violence against Women, Its Causes and Consequences, to the World Conference Against Racism, Racial Discrimination, Xenophobia and Related Intolerance, UN Doc. A/CONF. 189/PC. 3/5, 27 July 2001; Kapur, ‘The Tragedy of Victimization Rhetoric” Resurrecting the “Native” Subject in International/Postcolonial Feminist Legal Politics’. note 22.
23. J. E. Bond, ‘International Intersectionality” A Theoretical and Pragmatic Exploration of Women's International Human Rights Violations’, (2003) 52 Emory Law Journal 71, 76; A. Edwards, ‘Age and Gender Dimensions of International Refugee Law’, in E. Feller, V. Tü rk, and F. Nicholson (eds.), Refugee Protection in International Law” UNHCR's Global Consultations on International Protection (2003) 46. In this article I refer to the ‘personalized’ inquiry of refugee status determination and I identify compounding factors of persecution, such as age, gender, race, ethnicity, and so on.
24. Charlesworth et al., ‘International Intersectionality” A Theoretical and Pragmatic Exploration of Women's International Human Rights Violations’ note 3.
25. H. Bequaert Holmes, ‘A Feminist Analysis of the Universal Declaration of Human Rights’, in C. Gould (ed.), Beyond Domination” New Perspectives onWomen and Philosophy (1983), 250, 259.
26. Charlesworth et al., ‘A Feminist Analysis of the Universal Declaration of Human Rights’ note 3, at 628.
27. A. C. Scales, ‘The Emergence of Feminist Jurisprudence” An Essay’, (1986) 95 Yale Law Journal 1373; C. Smart, Feminism and the Power of Law (1989).
28. R.West, ‘Feminism, Critical Social Theory and Law’, (1989) University of Chicago Legal Forum 59, 59.
29. Chinkin, ‘Feminism, Critical Social Theory and Law’ note 33, at 6.
30. Naffine, ‘Feminism, Critical Social Theory and Law’ note 16, at 18, 20 and 32.
31. O'Hare, ‘Feminism, Critical Social Theory and Law’ note 16, at 368. See alsoH. Charlesworth, ‘AlienatingOscar? Feminist Analysis of International Law’, in D. Dallmeyer (ed.), Reconceiving Reality” Women and International Law (1993) 1; K. M. Culliton, ‘Finding a Mechanism to Enforce Women's Rights to State Protection from Domestic Violence in the Americas’, (1993) 34 Harvard International Law Journal 507; Ewing, ‘Feminism, Critical Social Theory and Law’ note 6; Romany, ‘Feminism, Critical Social Theory and Law’ note 18.
32. O'Hare, ‘AlienatingOscar? Feminist Analysis of International Law’ note 16, at 368.
33. See, e.g., C. A. MacKinnon, Feminism Unmodified” Discourses on Life and Law (1987); Charlesworth et al., ‘AlienatingOscar? Feminist Analysis of International Law’ note 3, at 625-8.
34. Charlesworth, ‘AlienatingOscar? Feminist Analysis of International Law’ note 36.
35. Copelon, ‘AlienatingOscar? Feminist Analysis of International Law’ note 3, at 295-6.
36. MacKinnon, ‘AlienatingOscar? Feminist Analysis of International Law’ note 5, at 15.
37. M. Thornton, ‘The Cartography of Public and Private’, in Thornton, ‘AlienatingOscar? Feminist Analysis of International Law’ note 16, at 2, 11-12.
38. ‘The Cartography of Public and Private’., at 13.
39. Gallagher, ‘The Cartography of Public and Private’. note 1, 290; Binion, ‘The Cartography of Public and Private’. note 12, at 515-16; Romany, ‘The Cartography of Public and Private’. note 18; C. Romany, ‘Women as Aliens” A Feminist Critique of the Public/Private Distinction in International Human Rights Law’, (1993) 6 Harvard Human Rights Journal 87, 87.
40. Bunch, ‘The Cartography of Public and Private’. note 12; Charlesworth, ‘The Cartography of Public and Private’. note 18.
41. D. Russell and N. Van de Ven (eds.), Crimes against Women” Proceedings of the International Tribunal (1984), 58-67, 110-75.
42. P. Goldberg andN.Kelly, ‘InternationalHumanRights andViolenceAgainstWomen’ (1993) 6HarvardHuman Rights Journal 195; Binion, ‘The Cartography of Public and Private’. note 12, at 515, n. 25; O'Hare, ‘The Cartography of Public and Private’. note 16, at 368.
43. Charlesworth et al., ‘InternationalHumanRights andViolenceAgainstWomen’ note 3, at 627-8; Charlesworth and Chinkin, ‘InternationalHumanRights andViolenceAgainstWomen’ note 3; O'Hare, ‘InternationalHumanRights andViolenceAgainstWomen’ note 16, at 369.
44. Binion, ‘InternationalHumanRights andViolenceAgainstWomen’ note 12, at 518.
45. Eisler, ‘InternationalHumanRights andViolenceAgainstWomen’ note 12, at 293; B. E. Herna’ ndez-Truyol, ‘Human Rights through a Gendered Lens” Emergence, Evolution, Revolution’, in Askin and Koenig, ‘InternationalHumanRights andViolenceAgainstWomen’ note 3, I, 3; Binion, ‘InternationalHumanRights andViolenceAgainstWomen’ note 12.
46. See ICCPR, Art. 23, and ICESCR, Art. 10.
47. See, e.g., Charlesworth et al., ‘InternationalHumanRights andViolenceAgainstWomen’ note 3; D. Otto, ‘A Post-Beijing Reflection on the Limitations and Potential of Human Rights Discourse forWomen’, in Askin and Koenig, ‘InternationalHumanRights andViolenceAgainstWomen’ note 3, I, at 115, 121 (criticizing the raft of provisions in the CEDAWwhich privilege the homemaker as the primary female subject of international law).
48. Eisler, ‘InternationalHumanRights andViolenceAgainstWomen’ note 12.
49. K. Engle, ‘After the Collapse of the Public/Private Distinction” StrategizingWomen's Rights’, in Dallmeyer, ‘InternationalHumanRights andViolenceAgainstWomen’ note 36, at 143.
50. See discussion below under section 3.
51. See Cook, discussion below under section 3. note 6, at 152. See also R. McCorquodale, ‘An Inclusive International Legal Order’, (2004) 17(3) LJIL 477.
52. Romany, discussion below under section 3. note 45, at 100.
53. Copelon, discussion below under section 3. note 3.
54. Art. 7 provides” ‘No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his [or her] consent to medical or scientific experimentation’.
55. Art. 10(1) provides” ‘All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person’.
56. See, e.g., Moriana Hernandez Valentini de Bazzano v. Uruguay, HRC 5/1977; Ann Maria Garcia Lanza de Netto v. Uruguay, HRC 8/1977; Esther Soriano de Bouton v. Uruguay, HRC 37/1978; Delia Saldias de Lopez v. Uruguay, HRC 52/ 1979.
57. See, e.g., Celis Laureano v. Peru, HRC 540/1993; Caroline Teillier Arredondo v. Peru, HRC 688/ 1996.
58. Bequaert Holmes, Art. 10(1) provides” ‘All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person’. note 28, at 259.
59. See, e.g., Sri Lanka (para. 20); Colombia (para. 14); Germany (para. 12); Lithuania (para. 9); Liechtenstein (para. 8); and The Gambia (para. 16(c))” Report of the Human Rights Committee, UN Doc. A/59/40 (Vol. I) (2004).
60. See, e.g., Vietnam; Yemen (para. 6)” Report of the Human Rights Committee, UN Doc. A/57/40 (Vol. I) (2002); Sri Lanka (para. 20); Germany (para. 12)” Report of the Human Rights Committee, UN Doc. A/59/40 (Vol. I) (2004).
61. See, e.g., Sri Lanka (para. 20)” Report of the Human Rights Committee, UN Doc. A/59/40 (Vol. I) (2004).
62. See, e.g., Hungary (para. 10)” Report of the Human Rights Committee, UN Doc. A/57/40 (Vol. I) (2002); Lithuania (para. 9)” Report of the Human Rights Committee, UN Doc. A/59/40 (Vol. I) (2004).
63. See, e.g., Liechtenstein (para. 8)” Report of the Human Rights Committee, UN Doc. A/59/40 (Vol. I) (2004).
64. See, e.g., Uganda (para. 10)” Report of the Human Rights Committee, UN Doc. A/59/40 (Vol. I) (2004); Mali (para. 11)” Report of the Human Rights Committee, UN Doc. A/58/40 (Vol. I) (2003); Sweden (para. 8); Yemen (para. 6)” Report of theHuman Rights Committee,UNDoc.A/57/40 (Vol. I) (2002). In the 2003 report onMali, the Committee called for the practice to be prohibited and criminalized.
65. See, e.g., Sri Lanka (para. 12); Colombia” Report of the Human Rights Committee, UN Doc. A/59/40 (Vol. I) (2004). Unsafe abortion has also been referred to in a number of states parties reports under Art. 6.
66. Yemen (para. 7)” Report of the Human Rights Committee, UN Doc. A/57/40 (Vol. I) (2002).
67. Either it does not refer to any particular article (e.g. Egypt (para. 3); Estonia (para. 6)) or it refers to other articles (e.g. Slovakia (para. 9) refers to Arts. 3, 9, and 26; El Salvador (para. 15) refers to Art. 9)” Report of the Human Rights Committee, UN Doc. A/58/40 (Vol. I) (2003).
68. The HRC referred to Arts. 3, 16, and 23 in relation to the practice of levirate in Mali” Report of the Human Rights Committee, UN Doc. A/58/40 (Vol. I) (2003).
69. The HRC referred to Arts. 3 and 26 in Egypt's report (para. 8)” Report of the Human Rights Committee, UN Doc. A/58/40 (Vol. I) (2003).
70. TheHRCreferredtoso-called'honour'crimescommittedmostlyagainstgirlsandwomenof foreignextraction in Sweden (para. 8), without identifying a particular ICCPR Article” Report of theHuman Rights Committee, UN Doc. A/57/40 (Vol. I) (2002).
71. The HRC referred to Arts. 3 and 26 in Sweden's report (para. 8)” Report of the Human Rights Committee, UN Doc. A/57/40 (Vol. I) (2002).
72. See, e.g., The Philippines (para. 11)” Report of theHuman Rights Committee,UNDoc. A/59/40 (Vol. I) (2004), in which the HRC expressed concern about ‘harassment, intimidation and abuse, including of detainees, many of whom are women and children, that have neither been investigated nor prosecuted’. See also concern over sexual abuse of female prisoners, Tanzania (para. 404)” Report of theHuman RightsCommittee, UN Doc. A/53/40 (Vol. I) (1998).
73. HRCGCNo. 28” The equality of rights betweenmenandwomen(Art. 3) (2000), para. 11.HRCGCNo. 28 (2000) replaces the earlier HRC GC No. 4” Equality of rights between men and women (Art. 3) (1981), that refers primarily to obligations extending beyond legislative measures to include practicalmeasures of protection and affirmative action.
74. HRC GC No. 28” The equality of rights between men and women (Art. 3) (2000), para. 11. See also para. 15, which refers to separation ofmen and women in prisons.
75. Charlesworth, Art. 10(1) provides” ‘All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person’. note 33; idem, Art. 10(1) provides” ‘All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person’. note 18.
76. See, e.g., Alberto Grille Motta v. Uruguay, HRC 11/1997, in which the HRC found evidence of torture and inhuman treatment, in which the perpetrators, together with other forms ofmaltreatment, inserted bottles or barrels of automatic rifles into themale author's anus;Mohammed Ajaz and Amir Jamil v. Republic of Korea, HRC 644/1995, in which the authors asserted that electric shocks had been applied to their genitals in order to force a confession, but on the evidence before it, the HRC found no violation; Rodriguez v. Uruguay, HRC 322/1998, in which one of the alleged violationswas of electric currents being applied to his eyelids, nose and genitalia; K.L.B.-W. v. Australia, HRC 499/ 1992, in which a woman claimed to have been sexually assaulted as a hospital patient. Her case failed at the admissibility stage because the alleged assault occurred prior to the entry into force of the Optional Protocol on the state party concerned.
77. Nyekuma Kopita Toro Gedumbe v. Democratic Republic of Congo, HRC 641/ 1995.
78. Para. 2.1.
79. Paras. 3.1 and 3.2.
80. Art. 17 provides” ‘1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation. 2. Everyone has the right to the protection of the law against such interference or attacks’. Art. 23(1) provides” ‘The family is the natural and fundamental group unit of society and is entitled to protection by society and the State’.
81. Roberto Zelaya Blanco v. Nicaragua, HRC 328/ 1988, para. 6.7. Blanco was an engineer and university professor who was sentenced to 30 years’ imprisonment for outspoken criticism of the ‘Marxist orientation of the Sandinistas’ (para. 2. 1). He served ten years of the sentence and was subjected to serious forms of abuse.
82. UN Doc. E/CN. 4/SR. 149, paras. 33 and 38 (ET), para. 37 (PI), para. 39 (Chairman), para. 41 (RLO).
83. HRC GC No. 20” Torture and cruel, inhuman or degrading treatment or punishment (Art. 7) (1992), para. 5.
84. Gallagher, No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation. note 1, at 290.
85. E/CN. 4/56 (Working Party); Third Committee, 13th Session in 1958; M. J. Bossuyt, Guide to the ‘Travaux Pré paratoires’ of the International Covenant on Civil and Political Rights (1987), 147 and 158 respectively.
86. GC No. 20 (1992), para. 7.
87. See also Concluding Observations on Japan (1998) UN Doc. CCPR/C/79/Add. 102, para. 31; Concluding Observations on Peru (2000) UN Doc. CCPR/CO/70/PER, para. 21; Concluding Observations on Slovakia (2003) UN Doc. CCPR/CO/78/SCK, para. 12.
88. Slovakia (para. 12)” Report of the Human Rights Committee, UN Doc. A/58/40 (Vol. I) (2003).
89. HRC GC No. 28 (2000) and Concluding Observations on Uganda (para. 10)” Report of the Human Rights Committee, UN Doc. A/59/40 (Vol. I) (2004); Mali (para. 11)” Report of the Human Rights Committee, UN Doc. A/58/40 (Vol. I) (2003); Sweden (para. 8); Yemen (para. 6)” Report of the Human Rights Committee, UN Doc. A/57/40 (Vol. I) (2002).
90. See, e.g., Luciano Weinberger Weisz v. Uruguay, HRC 28/ 1978 (forced use of hallucinogenic drugs); Estrella v. Uruguay, HRC 74/ 1980 (forced use of hallucinogenic drugs); Acosta v. Uruguay, HRC 110/ 1981 (claimed subjected topsychiatric experiments for three yearsbythe forced injection of tranquillizers everytwoweeks); K.L.B.-W. v. Australia,HRC 499/ 1992 (subjected involuntarily to a regime of electroconvulsion therapy, being maintained in deep sleep without food, and on drug dosages that exceeded forensic limits and without muscle relaxants).
91. KwameWilliams Abu v. Canada, HRC 654/ 1995.
92. B.L. v. Australia, HRC 659/ 1995.
93. Note, however, that in B.L. v. Australia, HRC 659/ 1995, there is no indication of the Australian government's response, or even if they were called upon to give one prior to the ruling on admissibility.
94. See also similar discussions arising in relation to the jurisprudence of the European Court of Human Rights, below at section 3.4.
95. See, e.g., J.P.K. v. The Netherlands, HRC 401/ 1990; T.W.M.B. v. The Netherlands, HRC 403/ 1990; A.R.U. v. The Netherlands, HRC 509/ 1992. These claims were unsuccessful.
96. Charles E. Stewart v. Canada, HRC 538/ 1993. The HRC declared the claim to be inadmissible on the basis of a lack of substantiation of the claim. See also Canepa v. Canada, HRC 558/ 1993. See further Ngoc Si Truong v. Canada, HRC 743/ 1997, in which the author claimed that removal to a country where he allegedly has no legal status would amount to cruel, inhuman and degrading treatment. The HRC found that he had not substantiated his claim; in particular, they disputed that he would be stateless. See also Francesco Madafferi et al. v. Australia, HRC 1011/ 2001, separation from family pending removal would cause psychological and financial problems. HRC found violation of Art. 10(1), but did not address Art. 7.
97. No details are provided as to what this lifestyle entailed.
98. V.E.M. v. Spain,HRC 467/ 1991. TheHRC declared the claim inadmissible, in accordancewith Spain's reservation to Art. 5(2)(a) of the Optional Protocol, as the samematter had been examined and declared inadmissible by the European Commission on Human Rights. This decision was made notwithstanding the European Commission's summary dismissal of the case and that it had not been considered on its merits. No details were available on what the alleged ‘dishonourable lifestyle’ entailed.
99. HRC GC No. 7” Torture or cruel, inhuman or degrading treatment or punishment (Art. 7) (1982), para. 2 (emphasis added).
100. HRC GC No. 20” Torture and cruel, inhuman or degrading treatment or punishment (Art. 7) (1992), paras. 2 and 13 (emphasis added).
101. HRC GC No. 31” The Nature of the General Legal Obligation Imposed on States Parties to the Covenant (Art. 2) (2004), para. 8.
102. HRC 868/ 1999.
103. Para. 7.3.
104. A25 ECHR (1978).
105. HRC 265/ 1987, para. 9.2 (emphasis added).
106. Kindler v. Canada, HRC 470/ 1991. The HRC also referred to the specific conditions of detention on death row, and whether the proposed method of execution is particularly abhorrent.
107. See similar arguments raised in relation to refugee law” Edwards, Para. 7.3. note 25.
108. Darwinia R. Mo’ naco (Ximena Vicario) v. Argentina, HRC 400/ 1990. The author's granddaughter (Ximena Vicario-XV) was taken to the headquarters of the federal police with her mother in February 1977; her father was apprehended the following day. Both parents and the child subsequently disappeared. An investigation was launched but the parents were never located. XV was subsequently found in the home of a nurse who claimed to have taken care of the child. The nurse was preventively detained by the state on grounds of having committed a crime of concealing the whereabouts of aminor and forgery of documents. In 1989 the author was given provisional guardianship of XV, but the nurse was also granted visiting rights. Although the grandmother objected to this in court, she was told she had no standing as she was neither the child's parents nor her legal guardian. Various other appeals were made against the visits on the basis that they were psychologically damaging to the child. The author claimed, inter alia, that the visits and the delayed proceedings constituted a breach of various rights, including Art. 7. The Committee did not rule on whether the visits amounted to psychological torture.
109. Other instruments that include a specific definition of ‘torture’ include the 1975 General Assembly Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1975, UNGA res. 3452 (XXX), 9 Dec. 1975; Art. 2 of the Inter-American Convention to Prevent and to Punish against Torture (see, below, fn. 200) and Art. 7(2)(e) of the Statute of the International Criminal Court (adopted 17 July 1995; entered into force 1 July 2002). The latter defines ‘torture’ in Art. 7(1)(f) as ‘the intentional infliction of severe pain or suffering, whether physical or mental, upon a person in the custody or under the control of the accused; except that torture shall not include pain or suffering arising only from, inherent in or incidental to, lawful sanctions’.
110. UNGA res. 3452 (XXX), 9 Dec. 1975.
111. Art. 2(2) provides that ‘No exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as justification of torture’. Moreover, Art. 2(3) clarifies that superior ordersmay not be invoked as an excuse for acts of torture.
112. Art. 3 protection against return to torture has been held by the Committee as only applying to Art. 1, not Art. 16.
113. E.g., Concluding Observations on Greece, UN Doc. CAT/C/CR/33/2, 10 Dec. 2004, para. 5(k); Concluding Observations on Zambia, UN Doc. A/57/44, 25 Aug. 2002, para. 7(c).
114. See, e.g., Concluding Observations on the USA, contained in Report of the Committee against Torture, UN Doc. A/55/44 (2000), para. 179.
115. See Concluding Observations on Egypt, contained in Report of the Committee against Torture, UN Doc. A/54/44 (1999), para. 209. The Special Rapporteur on Torture has recognized sexual violence as a method of physical torture, UN Doc. E/CN. 4/ 1986/15, para. 119.
116. See Concluding Observations on The Netherlands, contained in Report of the Committee against Torture, UN Doc. A/55/44, 2000, para. 187.
117. See, e.g., Concluding Observations on the USA, contained in Report of the Committee against Torture, UN Doc. A/55/44 (2000), para. 180.
118. Concluding Observations on Greece,UNDoc. CAT/C/CR/33/2, 10 Dec. 2004, para. 5(h); Concluding Observations on Egypt, UN Doc. CAT/C/CR/29/4, 23 Dec. 2003, paras. 5(d) and (e).
119. Concluding Observations on Cameroon, UN Doc. CAT/C/CR/31/6, 5 Feb. 2004, para. 7.
120. Concluding Observations on China andHong Kong Special Administrative Region, contained in Report of the Committee against Torture, UN Doc. A/55/44, 2000, para. 136.
121. C. Lambert, ‘Partial sites and Partial Sightings” Women and the UN Human Rights Treaty System’, in S. Pickering and C. Lambert (eds.), Global Issues,Women and Justice (Sydney Institute of Criminology Series No. 19, Sydney, 2004) 136, at 153.
122. Concluding Observations on China andHongKong SpecialAdministrative Region, ‘Partial sites and Partial Sightings” Women and the UN Human Rights Treaty System’ note 129, para. 136.
123. Concluding Observations on Georgia, UN Doc. A/56/44, 7May 2001, para. 82(j).
124. PaulineMuzonzo Paku Kisoki v. Sweden, CAT 41/ 1996. See also E. B. Abad v. Spain, CAT 59/ 1996.
125. Lambert, Concluding Observations on Georgia note 130, at 152-3.
126. A.S. v. Sweden, CAT 149/ 1999. A sighe or mutah marriage is a short-term or fixed-term contract of marriage, usually accompanied by dowry payments, which is believed to have its origins in Islam. Its apparent aim is to avoid the repercussions of adultery or sexual intercourse outside marriage. The marriage ends without divorce on the expiration of the agreed period. If the marriage is consumated then the woman is not allowed to remarry until a certain period of time has elapsed. The practice is widely criticized by women's rights groups as denying towomeninternationally recognizedhumanrights associated with equalityandmarriage, such as consent,mutual divorce, and joint responsibility for children.
127. Para. 8.4.
128. Para. 2.5.
129. See, e.g., Charlesworth et al., Para. 2.5. note 3, at 628-30; Byrnes, Para. 2.5. note 3.
130. J. H. Burgers and H. Danelius, The United Nations Convention against Torture” A Handbook on the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1988), 45.
131. The United Nations Convention against Torture” A Handbook on the Convention against Torture and Other Cruel.
132. CAT 83/ 1997.
133. CAT 83/ 1997, para. 6.5.
134. See also M.P.S. v. Australia, CAT 138/ 1999.
135. R. McCorquodale and R. La Forgia, ‘Taking Off the Blindfolds” Torture by Non-State Actors’, (2001) 1 Human Rights Law Review 189, 209-10.
136. CAT 83/ 1997, para. 2.3.
137. G. Robertson, Crimes against Humanity” The Struggle for Global Justice (2002), 364; Americas Watch and Women's Rights Project, Untold Terror” Violence againstWomen in Peru's Armed Conflict (1992).
138. ‘Taking Off the Blindfolds” Torture by Non-State Actors’.
139. CAT 49/ 1996.
140. Sadiq Shek Elmi v. Australia, CAT 120/ 1998. For further analysis on Elmi v. Australia, seeMcCorquodale and La Forgia, ‘Taking Off the Blindfolds” Torture by Non-State Actors’. note 144.
141. CAT 120/ 1998, para. 5.5.
142. CAT 120/ 1998, para. 5.2.McCorquodale and La Forgia, ‘Taking Off the Blindfolds” Torture by Non-State Actors’. note 144, at 197.
143. HMHI v. Australia, CAT 177/ 2000.
144. CAT 161/ 2000.
145. Paras. 2.7-2.9.
146. The CAT has reiterated its concern regarding alleged failures of the state to prevent and to investigate fully and promptly violent attacks by non-state actors against ethnic and other minorities” see Concluding Observations on Croatia, UN Doc. CAT/C/CR/32/3, 11 June 2004, para. 8(f).
147. Concluding Observations on Cameroon, UN Doc. CAT/C/CR/31/6, 5 Feb. 2004, para. 4(c).
148. E.g. by failing to enact legislative, administrative, judicial, or other measures to prevent acts of torture (Art. 2), to criminalize torture (Arts. 4 and 5), to educate and train law enforcement personnel, civil or military, medical personnel, public officials, or other persons involved in custody, interrogation (Art. 10), to investigate (Art. 12), etc.
149. Burgers and Danelius, by failing to enact legislative, administrative, judicial, or other measures to prevent acts of torture note 139, at 120;McCorquodale and La Forgia, by failing to enact legislative, administrative, judicial, or other measures to prevent acts of torture note 144.
150. Art. 16 forms of ill-treatment are not subjected to the same ‘purpose’ requirement.
151. Burgers and Danelius, Art. 16 forms of ill-treatment are not subjected to the same ‘purpose’ requirement. note 139, at 46.
152. Art. 16 forms of ill-treatment are not subjected to the same ‘purpose’ requirement.
153. See in contrast S. Joseph, J. Schultz, and M. Castan, The International Covenant on Civil and Political Rights” Cases, Materials, and Commentary (2004), 197.
154. Burgers and Danelius, The International Covenant on Civil and Political Rights” note 139, at 46.
155. Working Group Report UN Doc. E/CN. 4/L. 1470, para. 27.
156. D. Dimitrijevic v. Serbia and Montenegro, CAT 207/ 2002, para. 3.1.
157. Cf. the approach of HRC. See Y.Dinstein, ‘The Right to Life, Physical Integrity, and Liberty’, in L.Henkin (ed.), The International Bill of Rights” The Covenant on Civil and Political Rights (1981), 114, 123.
158. GA res. 34/180, 18 Dec. 1979; entered into force 3 Sept. 1981.
159. Art. 6,Women's Convention.
160. CEDAWGR No. 14” Female Circumcision, UN Doc. A/45/38 (1990).
161. CEDAWGR No. 19” Violence againstWomen, UN Doc. A/47/38 (1992), para. 6.
162. Art. 6,Women's Convention., para. 9.
163. GA res. A/RES/54/4, 15 Oct. 1999; entered into force 22 Dec. 2000.
164. A.T.V. Hungary, CEDAW2/ 2003; Views adopted on 26 Jan. 2005.
165. Art. 6,Women's Convention., Para. 9.3.
166. CEDAW, Report on Mexico, UN doc. CEDAW/C/2005/OP.8/MEXICO (emphasis added). See also paras. 232, 241, 273, 274.
167. Pearce, Art. 6,Women's Convention… note 6, 540.
168. Art. 6,Women's Convention., at 547.
169. L. Kois, ‘Dance, Sister, Dance!’, in B. Duner (ed.), An End to Torture” Strategies for its Eradication (1998), 90. It is worth noting that this push to use existing instruments to the advantage ofwomen has arisen alongside calls for the creation of separate instruments addressing violence against women, but has so far resulted only in a General Assembly Declaration on the Elimination of Violence againstWomen (GA res. 2263 (XXII), 7 Nov. 1967.
170. Rome, 4 November 1950, as amended by its five protocols. Art. 3 provides” ‘No one shall be subjected to torture or to inhuman or degrading treatment or punishment’.
171. See, e.g., Ireland v. United Kingdom, ECHR A25 (1978), Judgment, 18 Jan. 1978.
172. ECHR Reports 1997-VI (GC), Judgment (Merits and just satisfaction), 25 Sept. 1997.
173. ‘Dance, Sister, Dance!’., para. 83.
174. ‘Dance, Sister, Dance!’., para. 84.
175. ‘Dance, Sister, Dance!’., para. 86.
176. See JointDissentingOpinion ofGö lcü klü, Matscher, Pettiti,DeMeyer, Lopes Rocha,Makarczyk andGotchev, at 42-5.
177. Comm. Rep. 4 EHHR 482, 10 July 1976.
178. See JointDissentingOpinion ofGö lcü klü note 137.
179. ECHR Reports 2000-VIII, Final Judgment, 11 Oct. 2000.
180. ECHR Appl. No. 39272/98, 4 Dec. 2003. This case involved a fourteen-year-old girl who claimed that she had been raped by two men, aged twenty and twenty-one. Criminal investigations in Bulgaria found insufficient evidence that MC had been compelled to have sex with the two men. The district prosecutor terminated the proceedings on the grounds that the use of force or threats had not been established beyond reasonable doubt and that no resistance on her part had been established.
181. See also X & Y v. TheNetherlands, A 91 ECHR (1985), in which the European Court found that failing to have a law allowing for criminal proceedings against perpetrators of sexual assault against amentally handicapped girl violates the ECHR.
182. East Asian Africans, (1973) 3 EHRR 76.
183. This case involved a fourteen-year-old girl who claimed that she had been raped by two men, aged twenty and twenty-one., paras. 196 and 207.
184. ECHR A94 (1985), Judgment 28May 1985.
185. This case involved a fourteen-year-old girl who claimed that she had been raped by two men, aged twenty and twenty-one., para. 91.
186. Velasquez Rodriguez v.Honduras, IACHRSer. C,No. 4, Judgment 29 July 1988. See also Godina-Cruz v.Honduras, IACHR Ser. C, No. 5, 20 Jan. 1989.
187. Velasquez Rodriquez v. Honduras, This case involved a fourteen-year-old girl who claimed that she had been raped by two men, aged twenty and twenty-one… note 197, para. 291.
188. Edwards, This case involved a fourteen-year-old girl who claimed that she had been raped by two men, aged twenty and twenty-one… note 25, at 60, n. 78.
189. Velasquez Rodriquez v. Honduras, This case involved a fourteen-year-old girl who claimed that she had been raped by two men, aged twenty and twenty-one… note 197, paras. 173-4.
190. This case involved a fourteen-year-old girl who claimed that she had been raped by two men, aged twenty and twenty-one., para. 175.
191. RaquelMarte’ deMeje’ a v. Peru, Case 10. 970, Report No. 5/96, IACHR, OEA/Ser. L/V. /II. 91 Doc. 7, at 157 (1996).
192. Note, also, the case of Loayza-Tamayo v. Peru, C33, Judgment 17 Dept. 1997, in which the Commission accepted that the applicant had been raped and that this constituted inhumane treatment, while the Court ruled that the accusation of rape could not be substantiated given the evidence. This case is interesting, since the Court was prepared to accept other evidence relating to incommunicado detention, solitary confinement, intimidation with threats of further violence, etc., but not in relation to the rape (para. 58). It is arguable that a different level of proof was expected for an accusation of rape.
193. OAS Treaty Series No. 67, Doc. OEA/Ser. L. V/II. 82 doc. 6 rev. 1, at 83 (1992); entered into force 28 Feb. 1987. Art. 2 of the IACPPT provides”
194. RaquelMarte’ deMeje’ a v. Peru, It is arguable that a different level of proof was expected for an accusation of rape. note 203.
195. Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women, adopted at Belem do Para, Brazil, 9 June 1994; entered into force 5Mar. 1995; 33 ILM 1534 (IACVAW).
196. Inter-American Convention on the Prevention., Art. 1.
197. Inter-American Convention on the Prevention., Art. 4(d).
198. Note that crimes against humanity may also be committed during peacetime.
199. ICTR Case No. ICTR-96-4-T, 2 Sept. 1998; Case No. ICTR-96-4-T (AC), 1 June 2001.
200. K. D. Askin, ‘Prosecuting Wartime Rape and Other Gender-Related Crimes under International Law” Extraordinary Advances, Enduring Obstacles’, (2003) 21 Berkeley Journal of International Law 288, 318.
201. The ICTR also ruled that rape can be a form of genocide.
202. Para. 687.
203. ICTR Case No. ICTR-96-4-T (AC), 1 June 2001.
204. ICTY Case No. IT-96-23-T and IT-96-23/1-T, 22 Feb. 2001; upheld on appeal, Case No. IT-96-23 and IT-96-23/1, 12 June 2002, paras. 482 and 496. The trial chamber found the three defendants guilty of torture, rape, and enslavement as both crimes against humanity and war crimes, pertaining to a ‘rape camp’ near Foca, a small Bosnian town south-east of Sarajevo, where they held women for many months who were subjected to multiple rapes, including being ‘sold’ or ‘rented out’.
205. See also Prosecutor v. Krnojelac, ICTY Case No. IT-97-25-T (15Mar. 2002).
206. Para. 687.
207. Askin, Para. 687. note 212, at 333.
208. Art. 7(1)(f) of the ICC Statute lists ‘torture’ as a crime against humanity ‘when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack’. For definition of torture, see Para. 687. note 113. See D.M. Koenig and K. D. Askin, ‘International Criminal Law and the International Criminal Court Statute” Crimes againstWomen’, in Askin and Koenig, Para. 687. note 3, vol. 2, at 3.
209. Copelon, ‘International Criminal Law and the International Criminal Court Statute” Crimes againstWomen’ note 3, n. 100, citing variousUS decisions. See also Bunch, ‘International Criminal Law and the International Criminal Court Statute” Crimes againstWomen’ note 12; D. Blatt, ‘Recognizing Rape as aMethod of Torture’, (1992) 19 NYU Review of Law and Social Change 821.
210. The African Commission has similarly found that forced nudity, electricity burns, and sexual assaults ‘constitute, together and separately, violations of Article 5’. See ACHPR 74/92, Commission nationale des droits de l'homme et des liberté s v. Chad (Merits), in (1997) 4 International Human Rights Rep. 94.
211. Note that Arts. 8 (slavery, servitude) and 9 (security of person) of the ICCPR have not been used to the same degree.
212. HRC GC No. 7 (1982), para. 2.
213. See Dzemajl et al. v. Yugoslavia, Note that Arts. 8 (slavery, servitude) and 9 (security of person) of the ICCPR have not been used to the same degree. note 153.
214. Charlesworth, Note that Arts. 8 (slavery, servitude) and 9 (security of person) of the ICCPR have not been used to the same degree. note 36.
215. UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees (1992), para. 65; UNHCR, ‘Guidelines on International Protection” Gender-related persecutionwithin the context of Article 1A(2) of the 1951 Convention and/or 1967 Protocol relating to the Status of Refugees’, UN Doc. HCR/GIP/02/01, 7May 2002, para. 19. For a list of relevant cases see Edwards, Note that Arts. 8 (slavery, servitude) and 9 (security of person) of the ICCPR have not been used to the same degree. note 25.
216. See M.C. v. Bulgaria, Note that Arts. 8 (slavery, servitude) and 9 (security of person) of the ICCPR have not been used to the same degree. note 191.
217. Note that Arts. 8 (slavery, servitude) and 9 (security of person) of the ICCPR have not been used to the same degree. note 197.
218. Note that Arts. 8 (slavery, servitude) and 9 (security of person) of the ICCPR have not been used to the same degree. note 197. note 157.
219. MacKinnon, Note that Arts. 8 (slavery, servitude) and 9 (security of person) of the ICCPR have not been used to the same degree. note 197. note 157. note 5, at 6.
220. Engle, Note that Arts. 8 (slavery, servitude) and 9 (security of person) of the ICCPR have not been used to the same degree. note 197. note 157. note 36, at 143.
221. H. Pearce, Note that Arts. 8 (slavery, servitude) and 9 (security of person) of the ICCPR have not been used to the same degree. note 197. note 157. note 6, at 558.
222. Note that Arts. 8 (slavery, servitude) and 9 (security of person) of the ICCPR have not been used to the same degree. note 197. note 157. note 113.
223. Note that Arts. 8 (slavery, servitude) and 9 (security of person) of the ICCPR have not been used to the same degree. note 197. note 157. note 113. note 183.