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CEDAW jurisprudence and the prohibition of violence against women

Table 3.1 summarizes all the cases that can be regarded as raising issues related to violence against women based on the definition formulated in General Recommendation 19. In total, up to now, the Committee has issued decisions in thirty-six cases. Out of these thirty-six cases, twenty-four are selected as relevant to the issue of violence against women. It should be noted that cases 7 and 9 are less obvious examples of violence against women. Case 7 is more easily couched in terms of women’s access to health services. However, since the applicant invoked the issue of violence against women, it is included in the table. In case 9, the applicant framed the issue mainly in terms of the right to housing. However, domestic

Table 3.1 CEDAW jurisprudence showing invocation of violence against women

Case No.

Type of issue

Violence against women invoked/ mentioned by

Applicant

State

Committee

1

CEDAW/C/36/D/2/2003

Domestic violence

X

X

X

2

CEDAW/C/36/D/4/2004

Coerced sterilization

X

X

3

CEDAW/39/D/5/2004

Honour killing

X

X

X

4

CEDAW/39/D/6/2004

Honour killing

X

X

X

5

CEDAW/38/D/10/2005

Domestic violence in home country

X

6

CEDAW/42/D/15/2007

Forced prostitution, trafficking

7

CEDAW/49/D/17/2008

Pregnancy related health

X

8

CEDAW/46/D/18/2008

Rape

X

X

9

CEDAW/51/D/19/2008

Housing linked to domestic violence

X

10

CEDAW/49/D/20/2008

Domestic violence

X

X

11

CEDAW/50/D/22/2009

Denial of abortion

12

CEDAW/49/D/23/2009

Mistreatment in detention

X

13

CEDAW/50/D/26/2010

Domestic violence in home country

14

CEDAW/51/D/25/2010

Abuse by a former spouse in home country

15

CEDAW/52/D/32/2010

Domestic violence

X

X

16

CEDAW/53/D/31/2011

Rape and domestic violence

X

X

X

17

CEDAW/55/D/33/2011

Circumcision in home country

X

X

18

CEDAW/55/D/35/2011

Rape in home country

X

X

X

19

CEDAW/55/D/40/2012

Sexual harassment in home country

X

X

X

20

CEDAW/56/D/44/2012

Domestic violence

X

21

CEDAW/57/D/34/2011

Rape

22

CEDAW/57/D/39/2012

Rape in home country

X

23

CEDAW/58/D/47/2012

Domestic violence

X

24

CEDAW/58/D/30/2011

Sexual assault

Note: Shaded lines refer to cases that were declared inadmissible.

violence was an important element of the circumstances that led to the ultimate denial of the access to housing that the Committee had to assess. Moreover, the state felt compelled to mention its policies with regard to combating violence against women. Therefore, the case is included in the table. Finally, case 11 is a good example of violence against women that can be controversial in some settings. In this case, a 13-year-old victim of sexual abuse suspecting pregnancy attempted suicide. Her attempt was unsuccessful, but she suffered damage to the spinal cord that necessitated urgent surgery. In the hospital, when her pregnancy was discovered, the surgery was delayed out of concern for the survival of the foetus until the girl miscarried spontaneously. As a result of the delay in performing surgery on her spinal cord, the victim remains paralysed from the neck down. However, in this case violence against women was not mentioned by any of the involved parties, including the Committee itself. This leads to the first observation. There is a strong tendency in the practice of the Committee to avoid recourse to the language of violence against women if, in the Committee’s view, the issue can be addressed appropriately under one of the existing provisions of the CEDAW. In cases 13, 14, and 20, it was not necessary for the Committee to engage in substantive issues because these cases were declared inadmissible. The Committee did not mention violence against women in cases 6, 7, 9, 11, 20, 21, and 24. In many other cases the Committee was able to easily use existing provisions of the CEDAW and, thus, avoided the language of violence against women. The Committee referred to its general recommendations and used the language of violence against women in cases involving issues traditionally associated with violence against women and for which there is no express provision in the CEDAW: domestic violence, honour killings, and coerced sterilization.

For states, the language of violence against women never forms part of their main argument. In all instances where states mentioned violence against women, it was done as a supplementary argument to demonstrate compliance with relevant provisions of the CEDAW and respect for the principle of non-discrimination. Thus, for example, in case 9, the Canadian government affirmed that ‘it has acted with due diligence to generally prevent violations under the Convention, and that Canadian governments do act with due diligence to investigate and punish acts of violence against women by individuals, where these acts are brought to their attention’.^

The attitude of the Committee in its case law can be interpreted in various ways. However, it is a matter of concern that the Committee does not systematically raise the issue of violence against women in all cases where this would be appropriate because it indicates the Committee’s uncertainty about the normative value of the prohibition of violence against women. The Committee prefers recourse to ‘harder’, more clear-cut provisions when possible and reserves the ‘softer’ language of violence against women for cases where it is not possible to clearly identify an express provision of the CEDAW This attitude resembles the one adopted by the CEDAW Committee in General Recommendation 14 on female circumcision. From the point of view of promoting the normative value of the prohibition of violence against women, a more assertive strategy would be to mention violence against women alongside the applicable hard law provisions. The tactic of putting forward some human rights aspects of an issue at the expense of others has its [1]

benefits. In concrete cases, it can lead to better compliance or a faster acceptance of a new standard. Arguably, the success of the CEDAW’s strategy on the issue of violence against women is in large part attributable to this tactic. However, in other contexts this tactic can produce negative side effects. Thus, in the context of the CEDAW Committee’s efforts to ensure that all forms of violence against women are recognized as a part of hard human rights law, the changing nature of violence against women and multiplicity of its forms is obscured and some forms of violence against women are privileged over others. As a consequence, the normative relevance of the concept of violence against women as such can be jeopardized: if violence against women is adequately addressed through the existing human rights norms, why should this concept matter at all?

Thus, the jurisprudence of the Committee also oscillates between the use of the language of violence against women as an affirmation of its legally binding character and avoidance of this language out of uncertainty about its consequences when more firmly established provisions are available. This recourse to well-established express provisions by the Committee can be an indication of the less than hard law status of the prohibition of violence against women, contrary to what the Committee affirmed in its general recommendations. As already mentioned, states refer to their programmes, strategies, etc. when addressing violence against women as an argument in favour of their compliance with the CEDAW. Therefore, violence against women is supported by states and recognized as a hard law norm to the extent it fits into or is reflected in the express provisions of the CEDAW. The fate of the forms of violence against women that cannot be easily incorporated into one of the articles of the CEDAW remains uncertain.

  • [1] Cecilia Kell v. Canada, Communication No. 19/2008, 26 Apr. 2011, CEDAW/C/51/D/19/2008, para. 8.11 at 12.
 
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