In July 2017, the CEDAW Committee released a new General Recommendation (No. 35) on Violence Against Women (VAW), 25 years after the first on the topic, General Recommendation No.19. This represents a step forward in the international legal response to the challenge of widespread VAW.
The 1979 UN Convention on the Elimination of Discrimination against Women (CEDAW) contains no explicit reference to VAW. No explicit, binding instrument against VAW has been adopted by the UN, although several regional instruments on the issue have been drafted (latest of these being the Council of Europe Istanbul Convention).
The CEDAW Committee first sought to meet the challenge of VAW in 1992 in General Recommendation No.19, which defined VAW as a form of discrimination against women, prohibited under CEDAW. VAW is defined as ‘violence which is directed against a woman because she is a woman or that affects women disproportionately’. The definition relies on CEDAW’s definition of direct and indirect discrimination. The CEDAW Committee’s new general recommendation on VAW seeks to update General Recommendation No. 19.
A natural question to ask is whether a better response to the prevalence of VAW would be to adopt a binding UN instrument on the topic. Unfortunately, as Recommendation No. 35 notes, state responses to human rights today often stress traditional (even fundamentalist) values, and reflect economic austerity. The backlash makes updating interpretations a more viable option than drafting new instruments. Stakeholders, including states parties and organizations, were consulted in the drafting process.
There were good grounds for reformulating the CEDAW position on VAW. The CEDAW Committee notes that opinio juris and State practice have turned the prohibition on VAW into a principle of customary international law. The Committee presents an impressive list of UN political documents and refers to the regional human rights treaties on the issue, as well as to its own practice. Hundreds of concluding observations based on General Recommendation No. 19 have been given by the Committee during the past 25 years. The UN Special Rapporteur on violence against women has also contributed to the development of the law in the past quarter of a century.
What are the most important updates which General Recommendation No. 35 provides? Firstly, the newly-adopted definition of VAW is ‘gender-based violence against women’, which stresses the social causes of the phenomenon. As the Recommendation notes, gender-based violence is rooted in male entitlement, privilege, and assertion of male control and power, which maintain the widespread impunity for acts of VAW.
The updated Recommendation also recognises the often intersectional nature of VAW, listing characteristics that, intersecting with being a woman, may aggravate the degree of violence. CEDAW does not explicitly address intersectional discrimination. The CEDAW Committee refers to its own practice and accumulated knowledge on harmful intersections, listing not only the most commonly recognized grounds of intersectional discrimination (such as ethnicity), but also specific circumstances which might compound the violence (e.g. presence of armed conflict, being an asylum seeker or a human rights defender).
The updated Recommendation also refers to recommendations on ‘harmful practices’ (such as ‘honour killings’), and requires a gender sensitive approach to the prohibition of torture. The Recommendation also refers to internet-mediated forms of VAW, which so far have received little attention by human rights bodies
Finally, and importantly, the updated Recommendation spells out carefully the general obligations of states parties under CEDAW. The state obligations have often been the bone of contention in drafting and complying with human rights instruments on VAW. Under the new Recommendation, gender-based violence against women constitutes discrimination against women (Article 1 of CEDAW), and thus engages all obligations in the Convention. The states parties have an obligation to prevent, punish and provide reparation, as the parties have the obligation to eliminate discrimination against women by all appropriate means and without delay. States are responsible for violence that results from their own actions and omissions, as well as those of non-state actors, where the state has not implemented measures to tackle VAW with due diligence. The failure of a state party to take all appropriate measures to prevent acts of gender-based violence against women when its authorities know or should know of the danger of violence, or a failure to investigate, prosecute and punish, and provide reparation to victims are noted as violations of the due diligence principle.
In times of backlash, even taking stock and writing down positive developments of human rights law in the form of a recommendation helps to create more coherent and effective state practice in combating gendered violence against women.