Issues in focus - Strengthening the protection of women from torture

Expert Workshop Report

On 24 September 2007, an expert workshop on "Strengthening the protection of women from torture" was held at Palais Wilson in Geneva . It was organized by the Office of the High Commissioner for Human Rights on behalf of the Special Rapporteur on the question of torture with a view to contributing to a more systematic application of the international framework on torture to women's concerns and strengthening their protection. Twenty-five experts from different regions and from a broad range of non-governmental and inter-governmental organizations (including regional and United Nations anti-torture mechanisms) participated in the discussions.

The Deputy High Commissioner for Human Rights opened the workshop, setting out the topics to be discussed. She also emphasized that classifying an act as "torture" has significant implications, as there are well-established international legal obligations for the State when it comes to torture. These include obligations to criminalize acts of torture, to prosecute perpetrators, as well as provide restitution to victims. These obligations derive from the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). While a variety of international instruments explicitly or implicitly provide for similar obligations with respect to violence against women or rape, a crime defined as torture carries a considerable stigma and therefore greater force in its public perception.

Overview of the discussions:

1. The term "torture"

At the workshop, there was broad consensus that the term torture should be used to encompass women-specific violence, if the acts fall under the definition of torture1, in order to strengthen women's claims with regard to prevention, protection and rehabilitation. The focus on the role of the State in the definition of torture contained in article 1 of the Convention against Torture was criticized. However, the Special Rapporteur stressed that it includes the concept of acquiescence, which can be broadly interpreted. Definitions adopted by States that explicitly include aspects related to the protection of women are unequivocally positive. In the Special Rapporteur's view, whenever gender-specific violence is at stake, the purpose element of the definition is fulfilled in that there is discrimination.

Participants recommended that there should be a list of acts that always amount to torture, but the list should not be exhaustive. They also emphasized that there is need for clear criteria to establish when acts of violence amount to torture and ill-treatment and that not only rape constitutes torture, also other forms of harassment and violence can amount to torture.

2. Women in detention

As widely recognized (including by the former Special Rapporteur Kooijmans in 19922), rape in detention settings (including prisons, but also police, military detention facilities, psychiatric clinics, social care centres etc.), whether by officials or co-prisoners with the acquiescence of officials, constitutes torture. Depending on the pain and suffering caused, other forms of sexual violence may also constitute torture.

Women-specific aspects relating to detention include:

• Research which shows that women, especially if they are sole or primary carers, during the initial phase of their detention, are extremely worried about their children. Also, breastfeeding mothers separated from their children are exposed to particular suffering during initial phases of detention;

• Very poor hygiene can have a greater adverse impact on women (especially during their menstrual cycle);

• In almost all remand prisons, women are held in the same premises as men, often without female staff, which makes them vulnerable to sexual assault by wardens, but also by male inmates;

• A high percentage of women with mental health problems are in detention and this involves aspects relating to access to health care;

3. Torture in the private sphere/community-based violence

Cases of domestic violence, and sometimes also trafficking, show significant parallels to acts of "classical" torture with respect to the methods used, the trauma inflicted, the total control over the victim (which translates into a feeling of complete isolation), the centrality of the fear element and the stages of exhaustion. Female genital mutilation is widely recognized as constituting torture.

State acquiescence must be understood very broadly and can be attributed to all branches of Government including the legislative branch.

To assess whether a State has fulfilled its obligations with regard to investigation and prosecution of private violence amounting to torture, the so-called "due diligence3 test" has been developed, which examines whether States have taken appropriate measures with regard to:

•  Prevention (legislation, training of law enforcement officials, creation of shelters, accompanying perpetrators (e.g. of domestic violence)); real attempts to eliminate discrimination of women;

•  Prosecution;

•  Protection (specific cases);

•  Reparation (legal framework, rehabilitation infrastructure, medical assistance, compensation etc).

4. Access to justice for women-survivors of torture

Several problems are noted:

•  The problem of under-reporting (in particular with regard to sexual violence): telling their stories exposes and stigmatizes women;

•  Difficulties with collecting evidence : courts have a tendency to ignore "soft" evidence (e.g. psychological assessments, etc), "courts want to see injuries", which is particularly problematic for women because violence against women, in particular sexual violence, often leaves little visible trace;

•  Even if the law is sensitive to women-specific concerns, other elements of the criminal law cycle (law enforcement bodies, judiciary, forensic services etc.) need to adapt themselves;

•  Witness protection is crucial in relation to women because of the stigma that often goes hand in hand with violence against women and the risk of re-victimization. Witness protection under article 13 of CAT must be seen as consisting of two aspects: physical protection from violence and psychological support. Victims of sexual violence face a particular dilemma in this regard, since on the one hand, they have to show that the act violated their mental integrity, while on the other hand convincing the court that the resulting trauma did not affect their credibility. In this context the Furundzija judgement was a milestone, since it stated clearly that post-traumatic stress disorder does not affect the credibility of the witness.

The limited access to justice by women at the national level is mirrored at the international level.

5. Reparation

The concept of reparation has evolved significantly over the last years. However, in terms of implementation, much remains to be done and States need to be reminded of their obligations. From the point of view of women's rights, reparation has to be understood and conceptualized in the broadest sense. Having the truth recognized and giving the survivors their dignity back are at the centre of reparation, but there are many other aspects, especially socio-economic ones, medical care, different forms of rehabilitation and access to justice that are of particular importance in relation to women. As its core objective, reparation should also aim at assuring the non-repetition of the violence. The definition of "victim" needs to be broadly conceived, with no rigid time limits, since telling the truth may take time. Stigma needs to be addressed as part of the reparation. It is crucial to break the silence about what crimes were committed. It is also vital to empower women to participate at all stages of a reparation process. If this broad approach is not taken, there is a strong risk of re-victimisation (see Nairobi Declaration of March 2007).

6. Holistic approach to torture and intersections with other rights

Several participants underlined the need for a holistic approach to understanding torture. The definition of torture should be interpreted in a way that resonates with what is happening, rather than looked at through the classical prisms. Lawyers should borrow from other disciplines, such as psychology and medicine, and describe torture as a process, from the beginning to the end rather than an act. That would mean they would pay more attention to psychological harm and take into account the longer-term effects. A central element of torture, be it by officials or in the private sphere, is fear. Forcing somebody to watch or listen to others being tortured, may generate great fear and in such cases clearly constitutes psychological torture. There is no one rule on where mental drama begins and ends, it needs to be seen as one whole. In this context, it was suggested to add a subjective element to the definition of torture, e.g. "vulnerability" or powerlessness and link it back to the survivor. However, whereas there is a need to look at the consequences of torture and ill-treatment, they should not be included in the definition, because different people react differently to torture and it would be counter-productive to define torture by its "long-term harm".

Stigma is an element present at several stages of the above process: starting from the understanding of torture as a process in context (with stigma being part of it), as an obstacle to reporting torture, to testify about torture, which in turn affects the reparation. The power of words was emphasised in this context: the term "torture" was found to be much less stigmatizing than "rape" or "sexual violence".

The refoulement context can help to shed light on many of the issues relevant to women discussed here: it is extremely difficult for a woman who has survived sexual abuse to substantiate that there is a future risk to her physical and mental integrity. In the context of determination of asylum claims, an issue to be looked at is the "re-affiliation" discussion: there are some violations so egregious that an individual cannot be returned to the place where she suffered them. The trauma stemming from past violation might continue, which may mean that a return constitutes psychological torture.

In order to reflect this holistic approach, the definition of torture needs to be interpreted in light of the Declaration on Violence against Women adopted by consensus in 1993. Considering the two frameworks, the torture framework on the one hand and the violence against women framework on the other hand, as mutually reinforcing, will strengthen both of them. As torture under CAT, the Declaration on VAW requires the criminalization of violence against women. It also contains some very high standards with regard to rehabilitation and to acquiescence, in that it explicitly states that State officials must not use culture and religion as a pretext and that officials should condemn all forms of violence against women.

All too often sexual violence against women and the stigmatization that goes hand in hand with it plus the rejection by their families, lead to destitution, which needs to be addressed as part of reparation. The intersections of the prohibition of torture with other rights, such as the right to health, social protection were stressed repeatedly, in particular when it comes to women in the reparation context.

7. Monitoring and fact-finding

Monitoring and fact-finding under a more inclusive torture definition face many of the challenges described above. The first major hurdle is the under-reporting, which, for several reasons is more likely to occur in relation to women. Whereas, this is closely linked to stigma discussed above, in some cases the composition and training of monitors and fact-finders (often male, not trained to take testimonies, to use gender-sensitive language etc.) exacerbates the situation. The question of so-called "soft evidence" is another challenge for monitors in the sense that sexual violence often leaves no traces and is difficult to document.

(See annex: Agenda of the workshop)

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1. " For the purposes of this Convention, the term "torture" means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity."; Consequently, it requires the following four elements:
•  Severe pain and suffering, physical or mental;
•  Intent;
•  Purpose;
•  Inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity ;

2. E/CN.4/1992/SR.21, para.35)

3. See CEDAW General Comment no. 19 and article 4 of the 1993 Declaration on the Elimination of Violence against Women; see also Veláquez Rodríguez v. Honduras , Inter-American Court of Human Rights (series C), July 29, 1988, No. 4. The Court stated: "An illegal act which violated human rights and which is initially not directly imputable to the State (for example, because it is an act of a private person or because the person responsible has not been identified) can lead to international responsibility of the State, not because of the act itself, but because of the lack of due diligence to prevent the violation or to respond to it as required by the Convention." The court found that a State must take "reasonable steps to prevent human rights violations committed by private actors and to use the means at its disposal to carry out a serious investigation of violations committed within its jurisdiction, to identify those responsible, to impose the appropriate punishment and to ensure the victim adequate compensation".