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Definitions and Historical Background

Definition

The concept of violence against women is very broad and can potentially cover a variety of phenomena. Even at the level of a general definition, there are some divergences between the existing definitions. At the universal level, two definitions are the most important: the definition formulated by the CEDAW Committee in General Recommendation 19[1] and the definition contained in the DEVAW.[2]

Significantly, two regional treaties addressing violence against women are currently in force: the Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence (Istanbul Convention)10 and the Inter-American Convention on the Prevention, Punishment, and Eradication of Violence against Women (Belem Do Para Convention).n These two conventions contain their own definitions of violence against women that are very similar to each other and to the two above-mentioned definitions^2 The common elements of all these definitions are: the fact that violence is based on gender; the consequences of violence that encompass not only physical harm, but also psychological harm or suffering; and the emphasis that both public and private violence falls under the ambit of international law. These core elements can be regarded as uniting factors. The crucial element is that of ‘based on gender’. The definition of ‘gender’ itself is a very difficult task if taken seriously.13 Therefore, the understanding and recognition of violence against women, as well as its various forms and manifestations, will depend on the evolving and changing understandings of gender. The link to gender in defining violence against women has been the subject of criticismTh As the definition contained in General Recommendation 19 demonstrates, it is possible to define violence against women without relying on the concept of gender. The definition of the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa also makes no reference to gender. This document, in line with the CEDAW Committee’s definition, defines violence against women as ‘all acts perpetrated against women which cause the physical, sexual, psychological, and economic harm’.i5

The available definitions of violence against women are quite broad and can potentially cover many rights violations that are already recognized under other of liberty, whether occurring in public or in private life.’ Adopted by UN GA Resolution 48/104 of 20 Dec. 1993, A/RES/48/104, Art. 1.

  • 10 Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence, CETS No 210, adopted 11 May 2011, in force 1 Aug. 2014.
  • 11 Inter-American Convention on the Prevention, Punishment, and Eradication ofViolence against Women, A-61, adopted 9 June 1994, in force 5 Mar. 1995.
  • 12 Art. 1 of the Belem do Para Convention reads as follows: ‘For the purposes of this Convention, violence against women shall be understood as any act or conduct, based on gender, which causes death or physical, sexual or psychological harm or suffering to women, whether in the public or the private sphere.’ The Istanbul Convention provides several definitions in Art. 3 and separately deals with violence against women (Art. 3(a)), domestic violence (Art. 3(b)), and gender-based violence (Art. 3(d)).
  • 13 The term ‘gender’ usually refers to the social construction of roles and responsibilities of men and women. See e.g.: UNESCO, Division of Gender Equality, Office of the Director-General, Priority Gender Equality Guidelines (2011): 5. However, it can have a more restricted and a broader, complex meaning. For a more restrictive approach to gender, see e.g.: Rome Statute of the International Criminal Court (Rome, 17 July 1998, 2187 UNTS 3) Art. 7(3). To appreciate the complexities of the notion of gender, see e.g.: J. Butler, Gender Trouble: Feminism and the Subversion of Identity (New York: Harper Perennial, 1993).
  • 14 See e.g.: A. Edwards, Violence against Women under International Human Rights Law (Cambridge: Cambridge University Press, 2013): 21—5.
  • 15 Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, 11 July 2003, CAB/LEG/66.6 (13 Sept. 2000); 1 Afr. Hum. Rts LJ 40 (2001) Art. 1(j).

general or specific treaties such as the CEDAW. However, thanks to the definitions’ focus on gender and women, they can help identify and recognize new forms of harm that otherwise remain invisible due to the male standard still prevalent in human rights law.[3] [4] [5] [6] The attitude of the CEDAW Committee is indicative of the deliberate use of this function in relation to the prohibition of violence against women. When the Committee can approach a particular situation from a perspective of another, more specific right embodied in the CEDAW, it will not resort to the language of violence against women. However, when it is faced with issues that are more difficult to subsume under other articles of the Convention, domestic violence being the prominent example, prohibition of violence against women becomes the dominant narrative.

The focus of this contribution is not on the definition as such. However, it will become clear that the broad vision of violence against women as it emerged in human rights discourse plays an important role in this author’s interpretation of the role and impact of soft law in this regard.

  • [1] General Recommendation 19: Violence against Women, 11th Session, 1992, Contained inCompilation of General Comments and General Recommendations Adopted by Human Rights TreatyBodies, HRI/GEN/1/Rev.9, vol. 2 (27 May 2008): 331, para. 6.
  • [2] ‘[A]ny act of gender-based violence that results in, or is likely to result in, physical, sexual or psychological harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation
  • [3] For a clear overview and analysis, see e.g.: D. Otto, ‘Lost in Translation: Re-scripting the SexedSubjects of International Human Rights Law’, in International Law and its Others, ed. A. Orford(Cambridge: Cambridge University Press, 2006): 318—56.
  • [4] See the Introduction to this volume, section 2.1.
  • [5] i® United Nations General Assembly, Resolution, 18 Dec. 1972, A/RES/27/3010.
  • [6] 19 United Nations General Assembly, Resolution, 16 Dec. 1976, A/RES/31/136.
 
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