The Legal Protection of Women From Violence: Normative Gaps in International Law

237 Pages·2018·10.002 MB·English

by  Rashida Manjoo, Jackie Jones

The Legal Protection of Women from
Violence
Violenceagainstwomenremainsoneofthemostpervasivehumanrightsviolationsinthe
world today, and it permeates every society, at every level. Such violence is considered a
systemic, widespread and pervasive human rights violation, experienced largely by women
becausetheyarewomen.Yetattheinternationallevel,thereisagapinthelegalprotection
of women from violence. There is currently no binding international convention that
explicitly prohibits such violence; or calls for its elimination; or mandates the criminalisa-
tionofallformsofviolenceagainstwomen.
This book critically analyses the treatment of violence against women in the United
Nations system, and in three regional human rights systems. Each chapter explores the
advantagesanddisadvantagescomingfromthelegalinstruments,theworkofthemonitor-
ing systems, and the resulting findings and jurisprudence. The book proposes that the gap
needstobeaddressedthroughanewUnitedNationsConventionontheEliminationofAll
FormsofViolenceagainstWomen,oralternativelyanOptionalProtocoltotheConvention
on the Elimination of all Forms of Discrimination against Women. A new Convention or
OptionalProtocolwouldbepartofthetransformativeagendathatisneededtonormatively
addressthepromotionofalifefreeofviolenceforwomen,theresponsibilityofstatestoact
with due diligence in the elimination of all forms of violence against all women, and the
systemicchallengesthatarethecausesandconsequencesofsuchviolence.
Rashida Manjoo is a Professor in the Department of Public Law, University of Cape
Town,SouthAfricaandaVisitingProfessoratQueenMaryUniversityLondon.UntilJuly
2015, she held the position of United Nations Special Rapporteur on Violence against
Women, its Causes and Consequences, a post she was appointed to in 2009 by the UN
Human Rights Council. Professor Manjoo is the former Parliamentary Commissioner of
the Commission on Gender Equality, an institution created by the Constitution of South
Africa, with a mandate to oversee the promotion and protection of gender equality. She
has also been involved in social context training for judges and lawyers, where she has
designedbothcontentandmethodology.Shehasoverfourdecadesofexperienceinsocial
justice and human rights work both in South Africa and abroad. Her research interests
includehumanrightsbroadlywithaparticularfocusonwomen’shumanrights.Inthesix
years as Special Rapporteur she has gained a unique insight into the normative social
contexts and realities facing women and girls in their quest for a life free of all forms of
violence. She has extensive first-hand knowledge on the issues of normative gaps, indivi-
dualandStateaccountabilityandresponsibility,andregionalnormativeframeworks.
JackieJonesisProfessorofFeministLegalStudiesandactivistinthewomen’shumanrights
movementandhaswritten,taughtandspokenabouttheneedtoeliminateviolenceagainst
womenandchildrenusinglawallovertheworld.SheteachesattheUniversityoftheWest
ofEngland and has specialised inthe law inrelationtodifferent aspects ofendingviolence
againstwomen,especiallyhumantrafficking,aswellasgenderequality.Jackiehaspublished
papersondifferentaspectsofgender,including,transsexualrightsintheworkplace,same-sex
marriage, equality legislation and human dignity. She has recently been appointed as the
ChairoftheAcademicAdvisoryPanelonHumanTraffickinginWales.SheispastPresident
ofEuropeanWomen Lawyers Association and trustee oftwo women’s organisations inthe
UK;sheisregularlyaskedtospeakandtrainlawyersandinputherviewstopolicyinitiatives
atlocal,regionalandinternationallevels.Sheisco-editor(withProf.JohnWinterdyk)ofthe
PalgraveInternationalMajorReferenceWorkonHumanTrafficking(2018).
Human Rights and International Law
Series Editor:
Professor Surya P. Subedi, OBE, QC (Hon)
This series will explore human rights law’s place within the international legal
order, offering much-needed interdisciplinary and global perspectives on human
rights’ increasingly central role in the development and implementation of
international law and policy.
Human Rights and International Law is committed to providing critical and
contextual accounts of human rights’ relationship with international law theory
and practice. To achieve this, volumes in the series will take a thematic approach
that focuses on major debates in the field, looking at how human rights impact
onareasasdiverseanddivisiveassecurity,terrorism,climatechange,refugeelaw,
migration, bioethics, natural resources and international trade.
Exploring the interaction, interrelationship and potential conflicts between
human rights and other branches of international law, books in the series will
addressbothhistoricaldevelopmentandcontemporarycontexts,beforeoutlining
the most urgent questions facing scholars and policy makers today
Available titles:
Adoption Law and Human Rights: International Perspectives
Kerry O’Halloran
Tax Havens and International Human Rights
Paul Beckett
The Effectiveness of the UN Human Rights System
Reform and the Judicialisation of Human Rights
Surya P. Subedi
Socio-Economic Human Rights in Essential Public Services Provision
Marlies Hesselman, Antenor Hallo de Wolf and Brigit Toebes
Forthcoming titles:
The Right to Truth in International Law
Victims’ Rights in Human Rights and International Criminal Law
Melanie Klinkner and Howard Davis
About the Series Editor
Professor Surya P. Subedi, OBE, QC (Hon) is Professor of International Law,
University of Leeds, member of the Institut de Droit International and former
UN Special Rapporteur for human rights in Cambodia.
https://www.routledge.com/Human-Rights-and-International-Law/book-
series/HRIL
The Legal Protection of
Women from Violence
Normative Gaps in International Law
Edited by
Rashida Manjoo and Jackie Jones
Firstpublished2018
byRoutledge
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AcataloguerecordforthisbookisavailablefromtheBritishLibrary
LibraryofCongressCataloginginPublicationData
Names:Jones,Jackie,1964-author.|Manjoo,Rashida,author.
Title:Thelegalprotectionofwomenandgirlsfromviolence:
normativegapsininternationallaw/JackieJonesandRashidaManjoo.
Description:Abingdon,Oxon[UK];NewYork:Routledge,2018.|
Series:Humanrightsandinternationallaw|Includesbibliographical
referencesandindex.
Identifiers:LCCN2017053639|ISBN9781138737969(hbk)|ISBN
9781351732840(webpdf)|ISBN9781351732833(epub)|ISBN
9781351732826(mobipocket)
Subjects:LCSH:Women–Violenceagainst.|Women–Crimesagainst–
Lawandlegislation.|Women–Legalstatus,laws,etc.|Women
(Internationallaw)
Classification:LCCK5191.W65J662018|DDC344.03/288–dc23
LCrecordavailableathttps://lccn.loc.gov/2017053639
ISBN:978-1-138-73796-9(hbk)
ISBN:978-1-315-18500-2(ebk)
TypesetinGalliard
bySwales&WillisLtd,Exeter,UK
Contents
ListofContributors vi
Introduction:ViolenceAgainstWomenandtheNeedforInternationalLaw 1
AishaK.Gill
1 TheImportanceofInternationalLawandInstitutions 9
JackieJones
2 ExploringtheConsequencesoftheNormativeGapinLegal
ProtectionsAddressingViolenceAgainstWomen 40
DavidL.RichardsandJillienneHaglund
3 NormativeDevelopmentsonViolenceAgainstWomeninthe
UnitedNationsSystem 73
RashidaManjoo
4 TheAfricanHumanRightsSystem:ChallengesandPotentialin
AddressingViolenceAgainstWomeninAfrica 107
NicholasWasongaOragoandMariaNassali
5 TheEuropeanConventiononHumanRights(ECHR)
andtheCouncilofEuropeConventiononViolenceAgainst
WomenandDomesticViolence(IstanbulConvention) 139
JackieJones
6 ViolenceAgainstWomen:NormativeDevelopmentsinthe
Inter-AmericanHumanRightsSystem 166
CarolineBettinger-López
7 ClosingtheNormativeGapinInternationalLawonViolence
AgainstWomen:Developments,InitiativesandPossibleOptions 199
RashidaManjoo
Index 215
Contributors
Caroline Bettinger-López is a Professor of Clinical Legal Education and Direc-
tor of the Human Rights Clinic at the University of Miami School of Law. She
also serves as an Adjunct Senior Fellow at the Council on Foreign Relations.
Professor Bettinger-López recently completed a two-year term in the Obama
Administration, where she served as the White House Advisor on Violence
Against Women, a senior advisor to Vice President Joe Biden, and a member of
the White House Council on Women and Girls. Professor Bettinger-López’s
scholarship, practice, and teaching concern international human rights law and
policy advocacy, violence against women, gender and race discrimination, immi-
grants’ rights, and clinical legal education. Professor Bettinger-López regularly
litigates and engages in other forms of advocacy before the Inter-American
Human Rights system, the United Nations, federal and state courts, and legisla-
tive bodies. Professor Bettinger-López is lead counsel on Jessica Lenahan (Gon-
zales) v. United States (Inter-American Commission on Human Rights, 2011),
the first international human rights case brought by a domestic violence victim
against the U.S.
Aisha K. Gill is Professor of Criminology at University of Roehampton, UK.
Her main areas of interest and research are health and criminal justice responses
to violence against black, minority ethnic and refugee women in the UK, Iraqi
KurdistanandIndia.Shehasbeeninvolvedinaddressingtheproblemofviolence
against women and girls/‘honour’ crimes and forced marriage at the grassroots
level for the past 17 years. Her recent publications include articles on crimes
related to the murder of women, femicide, coercion and forced marriage, child
sexual exploitation and sexual abuse in South Asian communities, female genital
mutilation and sex selective abortions. She has published widely in refereed
journals such as British Journal of Criminology, Current Sociology, European
JournalofWomen’sStudies,FeministCriminology,FeministLegalStudies,Femin-
ist Review, Journal of Gender Studies, Journal of Social Welfare and Family Law,
Violence against Women Journal and Women’s Studies International Forum.
Jillienne Haglund is an Assistant Professor of Political Science at the University
of Kentucky. Her research interests include human rights, international organisa-
tions, international law, and comparative political institutions. Her work largely
Contributors vii
seeks to illuminate the extent to which international law constrains state human
rights behaviour. Her book, Violence Against Women and the Law (co-authored
withDavidRichards)usesoriginaldataoncross-nationalviolenceagainstwomen
legal protections to explain why states adopt strong legal protections, as well as
assess the extent to which the presence and strength of national laws are
associated with better women’s rights outcomes. Her current research projects
examine the effectiveness of regional human rights courts and the role of multi-
ple, overlapping international human rights legal commitments on state human
rights practices.
Jackie Jones is Professor of Feminist Legal Studies and activist in the women’s
human rights movement, has written, taught and spoken about the need to
eliminate violence against women and children using law all over the world. She
teachesattheUniversityoftheWestofEnglandandhasspecialisedinthelawin
relation to different aspects of ending violence against women, especially human
trafficking, as well as gender equality. Jackie has published papers on different
aspects of gender, including, transsexual rights in the workplace, same-sex
marriage, equality legislation and human dignity. She is member of the Advisory
Group on the Istanbul Convention set up to ensure ratification through Parlia-
ment in the UK and has recently been appointed as the Chair of the Academic
Advisory Panel on Human Trafficking in Wales. She is past President of Eur-
opean Women Lawyers Association and trustee of two women’s organisations in
the UK; she is regularly asked to speak and train lawyers and input her views to
policy initiatives at local, regional and international levels. She is co-editor (with
Prof. John Winterdyk) of the Palgrave International Major Reference Work on
Human Trafficking (2018).
Rashida Manjoo is a Professor in the Department of Public Law, University of
Cape Town, South Africa and a Visiting Professor at Queen Mary University
London. Until July 2015, she held the position of United Nations Special
Rapporteur on Violence against Women, its Causes and Consequences, a post
shewasappointedtoin2009bytheUNHumanRightsCouncil.ProfManjoois
the formerParliamentary Commissionerofthe Commissionon GenderEquality,
an institution created by the Constitution of South Africa, with a mandate to
oversee the promotion and protection of gender equality. She has also been
involvedinsocialcontexttrainingforjudgesandlawyers,whereshehasdesigned
bothcontentandmethodology.Shehasoverfourdecadesofexperienceinsocial
justice and human rights work both in South Africa and abroad. Her research
interestsincludehumanrightsbroadlywithaparticularfocusonwomen’shuman
rights.Inthe sixyearsasSpecialRapporteurshehas gainedauniqueinsightinto
the normative, social contexts and realities facing women and girls in their quest
for a life free of all forms of violence. She has extensive first-hand knowledge on
the issues of normative gaps, individual and State accountability and responsi-
bility, and regional normative frameworks.
viii Contributors
Maria Nassali is an international human rights and governance practitioner and
activist. She holds a Doctorate, LLD, in Human Rights from the University of
Pretoria and Masters in Law and Development from the University of Warwick,
UK. Nassali is a lecturer at Makerere University and Chief Executive Officer of
International Governance Alliance (iGA), an East African regional organisation
that links theory to practice. Nassali has successful merged academic rigour with
activism, as demonstrated by her track record of resuscitating organisations for
strategic positioning. Nassali is the author of Beating the Human Rights Drum:
ApplyinghumanrightsstandardstoNGOs’governance(PULP)2015.Sheisaco-
author with Haroub Othman of Towards Political Liberalisation in Uganda
(2002). Her recent papers include ‘A Political Coming of Age for Ugandan
NGOs? The Campaign for Free and Fair Elections,’ in Controlling Consent:
Uganda’s 2016 Elections.
NicholasWasongaOragoisapassionateandcommittedhumanrightsadvocate.
His main area of speciality is economic and social rights. Apart from his research
exertions, Dr Orago has worked extensively in the area of human rights, starting
as legal and research assistant at the Federation of Women Lawyers (FIDA-
Kenya);asaresearchassistantattheResearch,PolicyandLegislationDepartment
oftheKenyaNationalCommissiononHumanRights;asaprotectionassistantat
the United Nations High Commissioner for Refugees (UNHCR); and as a
gender based violence field advisor at the United Nations Population Fund
(UNFPA). Dr Orago is currently a lecturer at the School of Law, the University
of Nairobi. His areas of research include comparative constitutional law, interna-
tional human rights law, international humanitarian law and gender equality.
David L. Richards is Associate Professor of Human Rights and Political Science
at the University of Connecticut. He is the author (with Jillienne Haglund) of
Violence Against Women and the Law (Routledge), which uses original data
about domestic gender-violence laws in 196 countries to examine what laws
exist, how strong they are, how gender-violence laws come to be enacted, and
with what outcomes they are associated. His current research projects include a
study of the legal frameworks addressing the international trade in devices used
for torture and ill-treatment, as well as a framework for assessing the level of
states parties’ substantive commitment to treaties such as CEDAW.
Introduction
Violence Against Women and the Need
for International Law
Aisha K. Gill
Violence is a key factor in the production, maintenance and legitimisation of
domination and subordination. It has multiple forms that are interrelated, co-
constitutive and mutually reinforced by the state, institutions and individuals.
This is especially true regarding violence against women and girls, which remains
one of the most widespread and pervasive human rights violations in the world
today,permeatingeverysocietyateverylevel(Mackinnon,2006;Gill,Heathcote
and Williams, 2016). Such violence is considered a systemic form of abuse,
experienced largely by women simply for being women and by girls simply for
being girls. Yet, at the international level, there is a gap in their legal protection
from violence. There is currently no binding international convention that
explicitly prohibits such gendered violence, calls for its elimination or mandates
for its criminalisation.
Everyday forms of violence and violence as a daily reality are observed in
various contexts andcanbelinked todiversemethods, perpetrators andagendas.
‘Violence against women’ (VAW), an intentionally broad term, is understood to
be a salient outcome of systemic gender inequality across the globe. It encom-
passes any physical, sexual, psychological, emotional, financial or social harm
caused to a woman on the primary or partial basis of her gender. This harm can
be inflicted either by individuals (known or unknown to the victim/survivor),
groups, institutions or states. While also recognising that gendered abuse –
domestic violence in particular – is linked to other systems of inequality based
on sexuality, race and class, this book uses the term ‘violence against women’ to
acknowledge the specific, gendered nature of harm that womenencounter, often
in private or domestic arrangements. Nevertheless, while we conceptually favour
the broad term ‘violence against women’, the contributors to this book also use
the terms ‘gendered violence’ and ‘gender-based violence.’ Thus, although we
fully recognise that any attempt to define these terms would be highly complex
and contested and that they cannot be universally applied to all women without
modification or qualification – as revealed by the experiences of black, minority
ethnic, lesbian and refugee women – it is the pervasive nature of VAW across
cultures that has led us to focus on its gendered nature (Bhabha, 2004; Channa,
2013; Hester, 2013; Thiara and Gill, 2010).