WHEN JUSTICE FAILS: STATE ACCOUNTABILITY UNDER THE TORTURE CONVENTION FOR DOMESTIC VIOLENCE

By Cristina Kinsella

LLM International Human Rights Law

2015

Gender and Human Rights

Dr. Ekaterina Yahyaoui Krivenko

(Word Count: 9,958)

Table of Contents

INTRODUCTION.........................................................................................................................2

I.  THE IMPORTANCE OF THE WORDS WE USE...............................................................4

A.  The Problem with the Public/Private Dichotomy.....................................................5 

B.  What is Domestic Violence? Is a Better Definition Possible?...................................7 

C.  What is Torture?..........................................................................................................9

II.  INTERNATIONALIZING DOMESTIC VIOLENCE AS TORTURE...........................11

III.  CALLING DOMESTIC VIOLENCE TORTURE...........................................................13

A. International Jurisprudence......................................................................................13

1.  Committee on the Elimination of all Forms of Discrimination Against Women....................................................................................................................13

2.  Convention and Committee Against Torture....................................................15

3.  Human Rights Committee.................................................................................15

4.  United Nations General Assembly....................................................................16

5.  European Court of Human Rights....................................................................17

B.  Private Torture and Official Torture.......................................................................18

1.  Elements of Torture...........................................................................................18

2.  Challenges to Private Torture..........................................................................20

IV.  STATE RESPONSIBILITY: WHO BEARS THE BURDEN?........................................22 

V.  CREATING A REMEDY FOR PRIVATE TORTURE UNDER UNCAT......................24

CONCLUSION............................................................................................................................25

INTRODUCTION

“Where after all, do universal human rights begin? In small places, close to home – so close and so small that they cannot be seen on any map of the world . . . Unless these rights have meaning here, they have little meaning anywhere.” – Eleanor Roosevelt^[1]

        By the time Joan was twenty-five, she had five children, no home, and more broken bones and concussions than she could remember. She spent eleven years in an abusive relationship with the father of her five children, who repeatedly beat her, strangled her, and threatened to kill her, on several occasions in front of their children, and once while she was pregnant with their youngest. When her abuser fled the state of California in 2009 to avoid arrest for strangling Joan, she accepted it as a sign of hope. For the next year, she and her five children moved from temporary home to temporary home, searching for stability. In 2010, the abuser returned, demanding Joan and the children move across the country with him. When she refused, he opened fire through the window where the children were sleeping with a handgun he legally purchased in Mississippi, despite pending assault charges in California. When the police arrived at the scene, the abuser had fled. The police recommended Joan find a “safe place” to stay for a while. The handgun was not retrieved and no arrest warrant was issued. The abuser again fled the state of California.

        By 2013, after years of homelessness and uncertainty, Joan and the children had found a safe place to call home. The children were all in school, and doing very well. In May, Joan learned her abuser was back in town, and wanted to see the children. Joan moved the children her aunt’s house, and sought a restraining order immediately. After being served with the restraining order, the abuser tracked down and abducted the children, fleeing the state of California with the assistance of his family. For the next three months, Joan fought with law enforcement at the state and federal levels, prosecutors, and judges in two states to have her children returned. Ultimately, it was determined by a family court judge in California that the children were “better off” in Mississippi with their father, because Joan had struggled to keep a stable home for them. The judge considered evidence Joan’s attorney’s had not had the opportunity to review, and refused to hear Joan’s testimony. Joan’s abuser has never been arrested, tried or prosecuted for the years of abuser he inflicted on Joan, nor has he ever been held accountable for the abduction of the children. Joan, like millions of women, has faced injustice at the hands of her abuser and her government, who repeatedly fail to prevent, investigate, prosecute and punish acts of domestic violence.^[2] 

        Joan’s story is not unique. Unfortunately, some consider Joan to be one of the “lucky ones” because her story does not end in the death of her or her children.^[3] But when it comes to domestic violence, there are no “lucky ones”. Domestic violence is a problem that affects people from all corners of the world regardless of development or socio-economic status.^[4] Though both men and women may be victims of domestic violence, women are affected more than any other group in every country in the world.^[5] Worldwide, 35% of women have experienced domestic violence, but some state studies show that up to 70% of women are victims of domestic violence.^[6] Risk factors for victims of domestic violence go beyond physical and mental injury, and include economic harm, loss of education or employment, and drug and alcohol abuse.^[7]

        The international community has acknowledged domestic violence as problem affecting the human rights of women. However, no binding legal instrument directly addresses the issue. The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), the only treaty dealing expressly with women’s issues, does not include any language addressing violence against women. The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment (UNCAT) deals exclusively with the issue of torture and ill treatment, and is rarely applied in instances of violence against women. However, when the human rights treaties are taken together, clear standards of human rights exist. The work of the treaty bodies has created a place for domestic violence in human rights, and all the treaties impose a duty of due diligence on state parties. When state actors fail to adequately enforce laws to protect victims of domestic violence, human rights law should be able to provide remedy.

        Part I of this paper will discuss the problem with current domestic violence language, focusing on the issues created by the broad language of “domestic violence” and how this definition must change to meet the needs of victims. Part II will discuss the importance of internationalizing the issue of domestic violence and why it is necessary in light of the dominance of public/private dichotomy. Part III argues that connecting domestic violence to torture gives power to the prevention of domestic violence by analyzing international jurisprudence and comparing acts of official torture with private torture. Part IV will discuss state responsibility, and how the private/public dichotomy has lead to impunity for perpetrators of domestic violence. Part V will propose using UNCAT as a guideline for protecting victims of domestic violence, and creating a remedy where the state fails to act with due diligence to protect against the abuses in the home.

I. THE IMPORTANCE OF THE WORDS WE USE

        Language is a powerful tool for legal advocacy and policymaking. How a right or harm is phrased can have a significant impact on public awareness and official enforcement and protection. “Domestic violence” as a term has legal significance, but the language used highlights a prominent problem in feminist law making.^[8] Not only does domestic violence cover a wide array of harms predominately affecting women, the use of the term “domestic” conveys an idea of tameness.^[9] This highlights the dichotomy between public and private life in the law.^[10] In order to adequately address the problem of domestic violence, the language must change.

A. The Problem with the Public/Private Dichotomy

         Human rights born out of international law require state cooperation in order for those rights to funnel down to the people they are meant to protect. States, as the central actors in international law, have a responsibility to ensure the human rights of their citizens are protected. The dichotomy between the public sphere and the private sphere make this responsibility challenging for states to equally distribute human rights across the gender spectrum.^[11] The public sphere, which is defined as the “realm of the work place, the law, economics, politics and intellectual and cultural life”, is the place where international law happens and where the law has an “interest” in interfering.^[12] The private sphere consists of “home, the hearth and children” and is a place the state has no business in legislating.^[13] Unfortunately, this dichotomy has divided the world along gender lines.^[14]

        The public sphere has been long dominated by men, who have historically been the breadwinners and political animals, while the private sphere consists mostly of women who dominate the positions of mother, wife and homemaker.^[15] The rights of privacy and family life are important rights in international law, and state interference with these rights is viewed with suspicion.^[16] The prevention of state interference with the private sphere creates a “private familial space” where parents are free to raise their children and couples are free to live without government interference in their marriage.^[17] It also creates an environment that trivializes and justifies violence against women by their partners.^[18] While freedom from state intrusion in the private lives of individuals is important to protect individual rights, it also creates a situation where the law prioritizes the “home as a man’s castle” ideology over a women’s right to be free from bodily harm.^[19] A “parallel state” exists where the state’s failure to act reinforces an abuser’s dominance in the home and gives him a social license to treat it as an independent realm, free from legal sanction with its own system of justice.^[20]

        The rights to bodily integrity, security and freedom from harmful treatment are core human rights embodied in the central human rights treaties.^[21] However, a byproduct of the public/private dichotomy is that women’s experiences are seen as exceptions to the human rights rules instead of parallel to internationally recognized standards.^[22] For instance, when a woman is raped in custody, it’s considered rape and is not automatically a human rights violation; when a man is raped in custody, it’s acknowledged as torture.^[23] In some cases of private violence, states have argued that an abuser’s right to privacy and property prevents interference in “domestic” matters, somehow superseding a woman’s right to be free from violence.^[24] To suggest that women who are abused by their intimate partners have suffered no human rights violation implies that women are not entitled to full human rights protections.^[25] Though this is not the intention of states, as long as the public/private dichotomy is permitted to survive in the case of intimate abuse, women’s human rights will continue to be restricted around the life cycle of men.^[26] 

B. What is Domestic Violence? Is a Better Definition Possible?

Domestic violence is, by definition, one of the broadest crimes in domestic legislation around the world.^[27] Domestic violence is limited to violence that occurs in an “intimate” or “domestic” relationship, commonly defined as a relationship where the individuals are or were married or in a domestic partnership, dating or formerly dating, living together or formerly lived together, or have children in common.^[28] Yet the violence covered under domestic violence statutes is broad, and include acts such as physical violence, sexual violence, economic abuse, threats, and name-calling.^[29] Specifically, this includes “battery, biting, burning, hacking, electrocuting, starvation, sleep deprivation, . . . non-consensual sexual touching, rape, . . . poisoning, exposure, property harm, threats of harm, threats of harm to third parties, threats of removing children, psychological abuse, financial deprivation, stalking, shouting, . . . isolation, and threats of suicide” under the umbrella of domestic violence.^[30] Though the expansive definition of domestic violence demonstrates the wide range of abuses suffered by victims, it creates a void where the severity of the crime is lost in the breadth and timidity of the language.^[31]

        The perceived tame, domestic nature of domestic violence limits potential progress made by legislation that takes the time and opportunity to actually define it as a crime.^[32] Though it seems as though any criticism of these important statutes does little more than quibble over semantics, without proper categorization, effective protection and enforcement is not possible without the use of appropriate language.^[33] Law enforcement, prosecutors, and judicial officers are hesitant to impose the law on activity that is relegated to the home.^[34] The idea of the home as a place of “love and intimacy” guards the privacy of the family and keeps the state from imposing justice on harm inflicted there.^[35] Without adequate categorization, violence in the home, “domestic” violence, becomes “invisible and marginalized,” unbelievable, and obscured by the public/private dichotomy.^[36] Structures available in states to protect victims are, instead, insensitive to and ignorant of the types of harm domestic violence can cause in the lives of victims.^[37] It creates the assumption that issues like rape and murder by strangers are more worthy of state attention and resources than disagreements between individuals in private.

        However, when the diminutive language is stripped away from domestic violence as a crime, it is obvious that domestic violence is no less egregious than abuse by strangers.^[38] Bonita Meyersfeld has written extensively on the internationalization of domestic violence, and states that a failure to distinguish between types of harm inflicted by domestic violence prevents laws from accurately responding to the crime as a whole.^[39] Separating types of harm caused by domestic violence is not meant to “attribute a lesser status” to one form of harm over the other, but there is a need “to separate shoving-slapping-shouting from the more physically extreme battering-breaking-raping.”^[40] According to Meyersfeld, categorizing all acts of domestic violence under one umbrella is like treating “a motorist who causes the death of another . . . through negligent driving and . . . a killer who causes death . . . through precise and systematic planning” with the same form of legal redress.^[41] To treat a serial killer the same as a negligent motorist is legally absurd, but it is how the law currently approaches domestic violence.

        Domestic violence scholars have proposed creating “categories” of harm caused by domestic violence.^[42] Meyersfeld proposes categorizing harm caused by domestic violence into two categories: intimate abuse and private torture.^[43] This is not attempt to “rank the harm” but uses three factors to distinguish between intimate abuse and private torture. These factors are repetition, controlling power and severity.^[44] First, harm that is systemic and repeated should be dealt with differently than harm that occurs infrequently.^[45] Second, harm that incapacitates the victim and creates an environment where there is no one more powerful to the victim than the abuser aligns domestic violence with types of official torture.^[46] Third, extremely destructive and debilitating violence, coupled with the factor of repetition, holds private torture out from intimate violence.^[47] Private torture includes repeated beating causing bruising and the breaking of bones and skin, rape or forced sexual encounters, imprisonment or isolation, and repeated verbal abused used as justification for battery.^[48] Intimate abuse includes slapping, pushing, cornering, non-physical abuse such as name-calling, or insistence on sexual intercourse without force.^[49]

Distinguishing between private torture and intimate abuse in the law is not meant to create a hierarchy of harm or to insinuate one violation is worse than the other.^[50] In no way is it intended to suggest that intimate abuse is somehow unworthy of legal attention. Instead, it separates types of harm so the law can appropriately address the violation; the same way ordinary assault is distinguished from rape and manslaughter is prosecuted differently than murder. Treating types of domestic violence the way the law treats rape and murder by strangers can help change the dialogue surrounding domestic violence. It also demonstrates the types of harm that need international attention as a form of torture.

C. What is Torture?

        The term “torture” carries powerful meaning and stigma for states.^[51] Though people may not know the legal definition of torture, everyone has a working knowledge or an idea of what torture involves.^[52] It conjures up images of individuals being beaten, electrocuted or “water boarded” by military or law enforcement officials in order to elicit a confession.^[53] Revulsion against Nazi practices during the Holocaust lead to a blanket intolerance for acts of torture, but with the rise of terrorist activities, especially after the attacks on September 11, 2001, some argue that there may be justifications for torture sometimes.^[54] Legally, there is never a justification for torture.

        International law prohibits acts of torture, regardless of the circumstances. According to both the International Covenant on Civil and Political Rights (ICCPR) and the Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment (UNCAT), the right to be free from torture or cruel, inhuman or degrading treatment (CIDT) is one from which no derogation is permitted.^[55] This means that even in times of emergency or war, the state may not engage in acts of torture or CIDT for any purpose.^[56] Not only is torture prohibited by treaty law, it is also ranked among the most important human rights as a jus cogens norm of international law.^[57] A jus cogens, or preemptory, norm is a fundamental principle of international law from which no derogation is possible, and is widely accepted by the international community.^[58] These norms include the prohibition of genocide, slavery, and torture.^[59] 

        The most extensive definition of torture and CIDT is found in UNCAT. Article 1 defines torture as:

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.^[60] 

CIDT is found at article 16 of UNCAT, and is any acts “which do not amount to torture as defined in article I, when such acts are committed by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.” Ultimately, there are four basic elements for torture: 1) severe mental or physical pain or suffering; 2) intentionally inflicted; 3) for prohibited purpose; and 4) by state officials or with state acquiescence or consent. CIDT contains the same elements, with the exception of a prohibited purpose.^[61] 

        The understanding of torture has evolved over time.^[62] The “classic” examples of torture include beating that causes intense pain or swelling, simulated drowning, electric shocks, rape, physical mutilation, being made to stand for prolonged periods of time, and deprivation of sleep, food or water.^[63] The Human Rights Committee, the treaty body monitoring the ICCPR, states that psychological treatment, such as solitary confinement or threats of death or disfigurement are forms of torture.^[64] To aid in the understanding of what can be classified as torture or CIDT, the European Court of Human Rights (ECtHR) held that all the circumstances of a case must be considered, “including the nature and context, duration, physical and mental effects, and, in some instances, the sex, age and state of health of the victim,” to find a violation of the torture article in the European Convention of Human Rights (ECHR).^[65] Together, the analysis of the treaty bodies and human rights courts establish a framework for determining when treatment rises to the level of torture.

II. INTERNATIONALIZING DOMESTIC VIOLENCE AS TORTURE

        Conceptualizing domestic violence as torture is a powerful tool for legitimizing private torture as a human rights violation and drawing international attention to the issue. Human rights language appeals to a sense of moral and emotional obligations owed to victims who suffer violations of these rights.^[66] Calling instances of private torture a human rights violation worthy of international attention has the benefits of drawing international attention to the issue of domestic violence and holding states accountable for failing to act.^[67] Bringing issues of human rights onto the international stage encourages states to remedy legal deficiencies domestically and influences how states behave toward their citizens.^[68] Though some argue that international law is ineffective or lacking in authoritative status, it can shine light on harms buried at the domestic level and give form to norms of human rights law.^[69] International response can bring on a “refashioning” of the legal responses and remedies available at the national level.^[70] With regards to issues concerning violence against women in particular, an international response can refocus the needs of human rights law so that it appropriately addresses concerns across gender lines.^[71]

        Because human rights issues affecting women are typically relegated to the private sphere, domestic violence can become invisible in the vast scheme of domestic law. Torture, given international attention by UNCAT, brought the issue of state sanctioned violence to the forefront of state concerns.^[72] As a result of the prevalence of UNCAT, torture is legislated separately from assault and battery by states, and receives special attention from the international community of states, non-governmental organizations and other actors in civil society.^[73] Domestic law enforcement and judicial officers have the tools to prevent and punish acts of torture because the international machinery has given guidance in the form of state recommendation, general comments, the work of legal experts, and the findings of international human rights courts.^[74] Instead of being lost as a domestic “states only” issue, torture has become an international issue warranting international concern. By providing tools that facilitate the development of international norms and rights, international law filters down through domestic legislation and court systems and flows out to the public, creating awareness and education.^[75]

        Two important examples of the power of internationalization of norms and rights can be found in genocide and mass rape as a violation of human rights. Before the Holocaust, neither the word nor the concept of genocide as an international norm existed.^[76] The international community, horrified by the acts of the Nazi regime, took action to prevent genocide from happening again, and created a network of treaties and mechanisms to draw attention to the problem of genocide.^[77] Today, the mass killing of a group of people receives international attention and is guarded against by the community of states. Similarly, the development of mass rape as a violation of the laws of war came out of the work of the international community. Rape of women in war is neither uncommon nor a new phenomena.^[78] International laws of war prohibit attacks on civilians and the use of illegitimate weapons.^[79] After the atrocities in the Former Yugoslavia and Rwanda, the international courts recognized mass rape as an illegitimate weapon and a form of genocide.^[80] This was the first time an international court or entity recognized mass rape as an international crime.^[81] Like private torture, mass rape is a problem that disproportionately affects women.^[82] By connecting private torture with official torture language and drawing international attention it, there can be a change at the state level.

III. CALLING DOMESTIC VIOLENCE TORTURE

        Though no binding international instrument exists specifically addressing domestic violence, treaty bodies and human rights organizations, including the United Nations (UN), have acknowledged the harm it causes and have taken action against it. On multiple occasions, domestic violence has been compared to or described as torture by international organizations. When considering private torture and official torture side-by-side, there are significant similarities that promote the idea of private torture as an international human rights violation. However, this analysis is not without criticism.

A. International Jurisprudence

        Jurisprudence considering domestic violence can be found in the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW), UNCAT, and the United Nations General Assembly (UNGA). Regional bodies, such as the ECtHR, have also rendered decisions connecting domestic violence with torture.

1. Committee on the Elimination of all Forms of Discrimination Against Women

        Though no international instrument specifically deals with violence against women, CEDAW is the only instrument dealing solely with women’s issues. The original text of CEDAW did not include the problem of violence against women of any kind, but in 1992, the Committee on the Elimination of all Forms of Discrimination Against Women (Women’s Committee) issued a general recommendation addressing violence against women as a form of discrimination.^[83] This general recommendation states that “gender-based violence” is a form of discrimination which “impairs or nullifies” women’s enjoyment of their human rights.^[84] Specifically, the Women’s Committee names the right to be free from torture or CIDT as a right gender-based violence interferes with.^[85] This general recommendation also states that domestic violence is on of the “most insidious forms of violence against women” that interferes with a woman’s “ability to participate in family life and public life on a basis of equality”.^[86] 

        Along with the general recommendation on violence against women, the Women’s Committee has also acknowledged the issue of domestic violence in its decisions on individual communications. These communications are brought by individuals, or on behalf of individuals, who claim the state has violated their human rights. In AT v. Hungary, the Women’s Committee reinforced the principle that that domestic violence prevents a woman’s full enjoyment of her human rights.^[87] By failing to provide legal protection to safe guard against abuse by her husband, the state violated the author’s human rights and discriminated against her based on her gender.^[88] Additionally, the Women’s Committee held that the state had acted in a discriminatory manner by prioritizing the abuser’s rights to privacy and property over the safety and security of the author.^[89] In Goekce (deceased) v. Austria, the Women’s Committee made a similar finding to that in AT v. Hungary, with the difference being that Austria had a system of legislative protections in place to protect women from domestic violence.^[90] However, despite this comprehensive system of protections, the state still failed to adequately protect the author, resulting in her death.^[91] Though the Women’s Committee treats domestic violence as an issue of discrimination rather than torture, the jurisprudence demonstrates the gravity of the issue of private torture in international law.

2. Convention and Committee Against Torture

        The Committee Against Torture and Other Forms of Cruel, Inhuman, and Degrading Treatment (Torture Committee) has not explicitly stated that private torture is a form of torture under the treaty. However, the Torture Committee has made reference to the domestic violence on more than one occasion. In concluding observations of state compliance with UNCAT, the Torture Committee has expressed concern over the issue of domestic violence. Most recently, the Torture Committee remarked with concern the prevalence of domestic violence in the Philippines^[92] and Lithuania^[93] in spite of domestic legislation. In Serbia, it criticized the law defining domestic violence as a misdemeanor because it lacked adequate prevention measures.^[94] On a positive note, the Torture Committee found that Hong Kong had implemented its previous recommendations to take action against domestic violence.^[95]

        In the Torture Committee’s general comment number three there is a specific reference to domestic violence.^[96] In discussing the non-derogable nature of the prohibition of torture and CIDT, the Torture Committee stated that a failure to prevent, investigate, prosecute and punish acts of torture and CIDT may give rise to state responsibility under articles 1 and 16 of UNCAT.^[97] In the paragraph discussing state responsibility for acts of torture and CIDT carried out by non-state actors, “domestic violence” is listed as a form of harm that demands response by states.^[98] State inaction or indifference to domestic violence creates a “form of encouragement and/or de facto permission” on the part of the state.^[99] Though the Torture Committee does not specifically state that domestic violence is a form of private torture, using the language and holding states responsible under UNCAT is an important step for recognition.

3. Human Rights Committee

        The Human Rights Committee (HRC) is responsible for monitoring state compliance with the International Covenant on Civil and Political Rights (ICCPR). Like UNCAT, the ICCPR contains a provision prohibiting torture and CIDT.^[100] In its general comments on the ICCPR, the HRC has imposed a duty on states to take action against individuals inflicting torture or CIDT on others even when operating outside state or official authority.^[101] When states report on compliance with article 7 (torture and CIDT), the HRC requires that the state include information on national laws and protections regarding domestic violence.^[102] This is important because the HRC frames the issue of domestic violence in the context of article 7, directly connecting acts of domestic violence with acts of torture or CIDT. Additionally, HRC requires the state to adopt measures to safeguard “vulnerable persons”.^[103]

4. United Nations General Assembly

        Since the 1980s, the UN has made several important contributions to the rights of women, especially in the area of violence against women, specifically domestic violence. The UNGA has issued several important resolutions concerning the rights of women to be free from violence, both in public and in the home.^[104] Though the UNGA has not specifically stated that domestic violence can be a form of private torture, it has acknowledged the far-reaching consequence of domestic violence on the safety, health and well being of women.^[105] These resolutions have helped to bring domestic violence out of the shadows of the private sphere and into the public eye. The most significant resolution to come out of the UNGA has been the Declaration on the Elimination of Violence Against Women (DEVAW), which was based largely on the general recommendation concerning violence against women from the Women’s Committee.^[106] This resolution explicitly states that domestic violence is a concern of the state regardless of whether it occurs in public or in private.^[107] 

        The UNGA has also made important contributions to private torture through the use of special rapporteurs (SR) in the UN Human Rights Council (formerly the Commission on Human Rights). In March 1994, at the World Conference on Human Rights in Vienna, the Commission on Human Rights appointed a SR to obtain information and recommend measures to eliminate violence against women.^[108] The violence against women SR has produced important work on the issue of domestic violence.^[109] In the area of domestic violence, the SR on violence against women has connected domestic violence to private torture.^[110] In its 1996 report, the SR compared the effects of official torture to those of private torture, and concluded that domestic violence is a form of private torture for which the state may be held responsible.^[111] The SR on torture and CIDT, appointed by the Human Rights Commission, also called domestic violence a form of torture.^[112] The SR on torture compared domestic violence within the context of the elements of torture found at article 1 of UNCAT.^[113] Not only did the torture SR state that all the elements of UNCAT align with domestic violence, he also proposed that domestic violence has an additional element not found in official torture: powerlessness.^[114] By including the element of powerlessness, the SR stated the elements of sex, age and physical and mental health also needed to be considered when addressing private torture.^[115]

5. European Court of Human Rights

        Like UNCAT and the ICCPR, the ECHR also contains a prohibition on torture and CIDT.^[116] In interpreting the ECHR, the ECtHR has recognized domestic violence in the context of torture and CIDT. The court did this for the first time in 1998 in the context of child abuse when it held that the United Kingdom (UK) was responsible for violating a child’s right to be free from torture or CIDT.^[117] The court found that the UK was responsible because it allowed a father who beat his son to use the defense of reasonable chastisement, despite the fact the father had beat the child repeatedly with considerable force.^[118] Additionally, the court held that the state has a responsibility to protect vulnerable individuals, such as children, from violations of their human rights.^[119]  In 2009, the ECtHR applied this same reasoning to the issue of domestic violence, when the court held that the state’s failure to adequately protect a woman from her abuser and prosecute the perpetrator violated the woman’s right to be free from torture.^[120] As in the case of child abuse, the court stated that in order to find a violation of article 3 of the ECHR all the circumstances of the case must be considered, including “sex, age and state of health of the victim.”^[121] The court also extended the requirement of state protection of vulnerable individuals to women in domestic violence situations.^[122] The jurisprudence on private torture suggests that it is a human rights concern, which should be treated accordingly by states.

B. Private Torture and Official Torture

        Though international jurisprudence supports the idea of private torture as a human rights violation for which states may be held responsible, there are still some who reject the idea that any form of torture. When acts of private torture are analyzed using the elements of official torture, there are striking similarities.

1. Elements of Torture

        According to UNCAT, the four elements of torture are: 1) severe mental or physical pain or suffering; 2) intentionally inflicted; 3) for prohibited purpose; and 4) by state officials or with state acquiescence or consent. As to the first element, though UNCAT does not provide a standard for determining the severity of suffering, the ECtHR standard has been widely used for determining when harm is sufficiently severe to be considered torture.^[123] This means the nature and context of the treatment, the duration, mental and physical effects, as well as the sex, age and health of the victim are taken into consideration when determining severity.^[124] Victims of private torture report repeated beatings that result in bruises, lacerations and broken bones, burns, rape and sexual assault, stabbing, strangulation, and being bodily thrown around the home.^[125] Victims of official torture have reported the same injuries inflicted by state officials while in custody.^[126] In the latter case, these injuries were considered severe enough to be considered torture.^[127] Additionally, not all torture involves “overt brutality” and victims of private torture and official torture both report being isolated, kept from contacting their families, threatened with death or dismemberment.^[128] In cases of official torture, this is considered infliction of severe psychological pain.^[129]

        The second element, requiring intent, is typically easily met especially when the harm rises to the level of severity required under UNCAT.^[130] The third element, however, is somewhat more difficult to prove in the context of private torture. The purposes of torture may be to obtain a confession, punish the detainee, to intimidate or coerce the victim, or based on general discrimination purposes.^[131] Most people, when thinking about torture, only consider it in the context of obtaining a confession.^[132] However, the general purpose of torture involves the attainment of control over the victim.^[133] The torturer is attempting to “obliterate the personality” or otherwise incapacitate the victim, whether abusing a spouse or attempting to elicit a confession from a detainee.^[134] Victims of official torture report being forced to crawl on the floor, held down while their captors beat them, and threatened with death if they do not obey orders; this is done for no other purpose than to show power and control.^[135] Victims of private torture have made similar reports, providing examples of abusers forcing them to crawl to the abuser’s feet, having a gun pressed to their head while the abuser explains how easy it would be to kill the victim, and being raped or sexually assaulted.^[136] Official and private torture are both primarily about power and control.^[137]

        The final element of torture is often the hardest to overcome, as it involves state complicity in the act of torture. Domestic violence is carried out exclusively by non-state actors or individuals acting outside their role as state officials, and not at the direction of the state.^[138] In order for private torture to be acknowledged under international human rights law, there must be some connection to state activity. UNCAT holds states accountable where state “consent or acquiescence” allows the torture to take place and/or go unpunished.^[139] The Torture Committee has stated that the “acquiescence” language can connect the state to acts of torture where the state fails to adequately prevent, investigate, prosecute and punish acts that the state “knows or should know” about.^[140] This standard is known as the due diligence standard, and it requires states to exercise a reasonable standard of care when it comes to enforcing their human rights responsibilities.^[141] The due diligence standard is the key to understanding private torture as an international human rights violation.^[142] 

2. Challenges to Private Torture

        Despite the similarities between private and official torture, the social and legal responses are very different.^[143] Victims of official torture are regarded as heroic for surviving, while victims of private torture are seen as passive in their own abuse and often questioned about why they never left.^[144] Instead of regarding victims of private torture as survivors, they are perceived as being complicit in their own harm because they did not leave. This presumes that the ability to flee was a possibility, and that abusive domestic relationships are not, themselves, a form of custody.^[145] However, abusers often use language and threats similar to that of official torture to convince their victims that there is no possibility to leave, and any attempt will result in their immediate death.^[146] But victims of private torture are still viewed as complicit for not trying to escape, an idea deeply ingrained in the public/private dichotomy.^[147]

        Additionally, there is the criticism that considering private torture in context with UNCAT will somehow dilute the definition of “real” torture, which is also deeply rooted in the public/private dichotomy.^[148] Official torture is seen as “worthy” of international attention, because it involves direct abuse by the state.^[149] If private torture is brought under the umbrella of the UNCAT language, the power of the torture language will be diluted to cover all acts of brutality.^[150] Using torture in this way is “sentimental” and detrimental to the preemptory nature of the norm.^[151] The fear that the sentimentality of domestic violence will undermine the power of torture undermines the idea that women’s rights are human rights.^[152] 

It is not merely state action but state inaction that allows the perpetuation of torture, whether official or private. Victims of official torture are not always directly tortured by state officials or at the direction of the state.^[153] However, when the state fails to prevent militant groups from abusing individuals or to protect them from torture, the state is considered responsible, and the case easily falls under the UNCAT language.^[154] In the absence of official conflict, where no militants or militaries are involved, when it is just a woman and her partner in their home, humanity is not violated and there is no need for state interference.^[155] This is, of course, an absurd notion; as is the idea that private torture will bring all instances of torture down to the level of simple assault.^[156] Torture as a concept has evolved through time, and has changed to meet the changing norms of the international community.^[157] Yet the underlying purpose behind the prohibition of torture remains the same: people cannot use mental and physical brutality to tear down the psyche of another, to destroy another human’s body, mind and personality, without being held to account for their actions. It is the state’s responsibility to hold those individuals accountable.

IV. STATE RESPONSIBILITY: WHO BEARS THE BURDEN?

        Human rights violations are understood in the context of state action. As states are the primary actors in international law, human rights are considered violated when the state acts.^[158] However, when private actors are violating rights of other private actors, it is more difficult to place responsibility on the state, but still possible. The due diligence standard is included in human rights treaties and imposes a responsibility to take action to prevent, investigate, prosecute and punish violations of the rights of one private actor by another.^[159] When a state fails to act to protect the human rights of its citizens from infringement by non-state actors, the state may be held responsible for committing an internationally wrongful act.

        As part of the general recommendation on violence against women, the Women’s Committee included a due diligence requirement on states to take action.^[160] This means that state actors have a responsibility, imposed by treaty law, to prevent, investigate, prosecute and punish violations of the rights embodied in the treaty, or the state will be considered responsible for such violations.^[161] UNCAT imposes a duty on states to take “effective legislative, administrative, judicial or other measures” to prevent torture.^[162] This provision requires states to take action to prevent torture, and not sit idly by while others perpetrate acts of torture. When considering the responsibility states have to take action against acts of private torture, the state must consider its obligations to the victim and must act accordingly so as to avoid becoming an accomplice to the abuse.^[163]

        As discussed above, the state action element of article 1 of UNCAT may be found where states consent or acquiesce to the torture.^[164] If the state has legislative measures in place to prevent domestic violence, the question then becomes whether this alleviates the state of its duty of due diligence under the treaty.^[165] The Torture Committee has given little guidance on this question, but the general recommendations and state observations suggest that there must be something more than simply passing legislation to fulfill this duty.^[166] The Torture Committee has positively acknowledged state legislation, but recommended that more needs to be done to address the issue of domestic violence.^[167] Though the committee states that more needs to be done, they do not offer any guidance as to whether this would equal state “acquiescence” to instances of private torture.

        The ECtHR and the Women’s Committee have provided the most guidance on state complicity in actions of domestic violence. In Opuz v. Turkey, the ECtHR found that the state was responsible for violating the torture prohibition in the ECHR for failing to arrest and prosecute the abuser.^[168] Though the state had legislation on the books to protect victims of domestic violence, the fact that the state “knew or had reason to know” that the violence was imminent made the state complicit in the private torture.^[169] The Women’s Committee has made similar findings with regard to domestic violence as a form of discrimination. Despite legislation on the books and proactive measures taken by law enforcement officials, the Women’s Committee has found, on more than one occasion, when the state knew or should have known that acts of private torture were taking place, inaction was a violation of the state’s due diligence obligation.^[170] 

        When taken together, the jurisprudence from the Torture Committee, the Women’s Committee and the ECtHR suggests that state acquiescence to acts of private torture may be found where the state knew or should have known acts of private torture were taking place and failed to act accordingly. This may be referred as “permission by omission”, with the state allowing the torture to continue by not responding adequately to the victim’s requests for help.^[171] Not responding adequately may occur at any level of governance, from a failure to enact appropriate legislation, failure to arrest a perpetrator, or failing to prosecute a known abuser. States have argued that the victim withdrawing a complaint against the abuser or refusing to cooperate in prosecution means the state no longer has a responsibility to take action.^[172] However, when the evidence is clear that acts of private torture are occurring, the state then knows or has reason to know the victim’s right to be free from torture is being infringed, the due diligence obligation is triggered. The balance should be whether a victim of official torture would be treated the same way if the state caused the harm.

V. CREATING A REMEDY FOR PRIVATE TORTURE UNDER UNCAT

        Private torture has far-reaching and life threatening consequences for women. Approximately 40% of all female murders are perpetrated by an intimate partner, and nearly one in three women will face violence from an intimate partner at some point in their lives.^[173] Like official torture, private torture tends to worsen over time, causing injury, mutilation, permanent disfigurement and death.^[174] However, perpetrators of private torture are still able to act with impunity in every state in the world.^[175] UNCAT is a powerful tool for bringing attention to the issue of torture around the world.^[176] It is the only legally binding instrument concerned exclusively with torture, and has been crucial to shaping norms of international law.^[177] While the recognition of private torture under UNCAT may not immediately eradicate the problem of domestic violence, using the power of UNCAT to hold states accountable can have a knock-on effect on the prevention, investigation, prosecution, and punishment domestically.

        The term “domestic” conveys timidity and tameness, and misrepresents the life threatening truth of domestic violence as a crime, especially acts rising to the level of private torture.^[178] UNCAT can overcome this perception because it carries the power of treaty law and a preemptory norm of international law.^[179] Though the perpetrator of private torture should always be held accountable for his actions, UNCAT’s language can hold the state accountable for turning a blind-eye to the abuse.^[180] By shining a light on state at the international level, the Torture Committee can provide guidance and encouragement to change policies at a domestic level.^[181] Where states are held accountable for private torture internationally, they will be more likely to treat acts of torture more seriously domestically.

        In order to facilitate the consideration of private torture under UNCAT, civil society organizations focused on the issues of torture, women’s rights, and domestic violence should come together to advocate before the Torture Committee. The Torture Committee has already expressed concern with the issue of domestic violence in concluding observations and general recommendations. By working with civil society UNCAT could issue a general recommendation dealing specifically with violence against women and private torture. By using this information, victims could bring individual complaints against states that fail to prevent, investigate, prosecute and punish acts of private torture. As states are held accountable for failure to protect these victims, the trickle down effect will bring about real change at the domestic level. Though this change will not come overnight, addressing private torture this way may have the same effect on domestic violence as the internationalization of mass rape had on its treatment as a war crime.^[182] This will open the door to victims of private torture, validating their experiences, and giving them a voice on the international stage.

CONCLUSION

        When law enforcement, judicial officers, and politicians stop listening and when no legal avenue is left, does the private nature of domestic violence mean that women like Joan must sit silently by? If abusers are permitted to act with impunity as a result of state inaction, should Joan be able to turn to the international community for assistance? In order for women’s rights to be fully integrated as human rights, these questions must be answered and, ultimately, rendered unnecessary. Violence against women, particularly domestic violence, is one of the greatest challenges to the realization of women’s human rights. By legitimizing egregious acts of domestic violence as private torture and providing victims with a remedy under UNCAT, the international community can take positive step toward diminishing this threat to human rights. A woman’s home should not be a dungeon where she feels trapped and broken. Her home should be a place of safety, a castle where her abuser will find no sanctuary.

BIBLIOGRAPHY

BOOKS

Alice Edwards, Violence Against Women Under International Human Rights Law (2011).

Bonita Meyersfeld, Domestic Violence and International Law (2010)

Catharine MacKinnon, Are Women Human? and Other International Dialogues (2006).

Due Diligence and Its Application to Protect Women From Violence (Carin Benninger-Budel ed., 2008).

Elizabeth Schneider, Battered Women and Feminist Lawmaking (2000).

Human Rights of Women: National and International Perspectives (Rebecca Cook ed., 1994).

Ian Brownlie, Principles of Public International Law (8th ed., 2012).

CHAPTERS IN BOOKS

Carin Benniger-Budel, Introduction, in Due Diligence and Its Application to Protect Women From Violence 1 (Carin Benninger-Budel ed., 2008).

Celina Romany, State Responsibility Goes Private: A Feminist Critique of the Public/Private Distinction in International Human Rights Law, in Human Rights of Women: National and International Perspectives 85 (Rebecca Cook ed., 1994).

Karen Knop, Why Rethinking the Sovereign State is Important for Women’s International Human Rights Law, in Human Rights of Women: National and International Perspectives 193 (Rebecca Cook ed., 1994).

Rhonda Copelon, Intimate Terror: Understanding Domestic Violence as Torture, in Human Rights of Women: National and International Perspectives 116 (Rebecca Cook ed., 1994).

JOURNAL ARTICLES

Andrew Byrnes and Eleanor Bath, Violence Against Women, the Obligation of Due Diligence, and the Optional Protocol to the Convention on the Elimination of all Forms of Discrimination Against Women – Recent Developments, 8 Hum. Rts. L. Rev. 517 (2008).

Bonita Meyersfeld, Reconceptualizing Domestic Violence in International Law, 67 Alb. L. Rev. 371(2004)

Catharine MacKinnon, Rape, Genocide, and Women’s Human Rights, 17 Harv. Women’s L.J. 5 (1994).  

Fernando Tesón, Feminism and International Law: A Reply, 33 Va. J. Int’l L. 647 (1993).

G. Kristian Miccio, With all Due and Deliberate Care: Using International Law and the Federal Violence Against Women Act to Locate the Contours of State Responsibility for Violence Against Mothers in the age of Deshaney, 29 Colum. Hum. Rts. L. Rev. 641 (1998).

Hilary Charlesworth et al., Feminist Approaches to International Law, 85 Am. J. Int’l L. 613 (1991).

John Parry, What is Torture, Are we Doing it, and What if we Are?, 64 U. Pitt. L. Rev. 237 (2003)

Patricia Londono, Developing Human Rights Principles in Cases of Gender-Based Violence: Opuz v. Turkey in the European Court of Human Rights, 9 Hum. Rts. L. Rev. 657 (2009).

Rhonda Copelon, Recognizing the Egregious in the Everyday, 25 Colum. Hum. Rts. L. Rev. 291, 352 (1994)

NEWPAPER & MAGAZINE ARTICLES

Jane Mayer, Whatever it Takes, New Yorker (19 February 2007) http://www.newyorker.com/magazine/2007/02/19/whatever-it-takes.

Jeannie Park, Susan Schindehette, Maria Speidel, Thousands of Women, Fearing for Their Lives, Hear a Scary Echo in Tracey Thurman's Cry for Help, People, 9 October 1989, at 112, available at http://www.people.com/people/archive/article/0,,20121378,00.html.

REPORTS

Amnesty International and REDRESS, Gender and Torture Conference Report 18 (2011), available at http://www.redress.org/downloads/GenderandTortureConferenceReport-191011.pdf

INTERNET SOURCES

United Nations Human Rights, Special Rapporteur on Violence Against Women, its Causes and Consequences, http://www.ohchr.org/EN/Issues/Women/SRWomen/Pages/SRWomenIndex.aspx (last visited 5 May 2015).

UN Women, Facts and Figures: Ending Violence Against Women (October 2014), http://www.unwomen.org/en/what-we-do/ending-violence-against-women/facts-and-figures.

World Health Organization, Factsheet No. 239: Intimate Partner and Sexual Violence Against Women (November 2014), http://www.who.int/mediacentre/factsheets/fs239/en

CASES

A v. United Kingdom, 27 EHRR 611 (1998).

Fatma Yildirim v. Austria (Decision), CEDAW Committee (6 August 2007) UN Doc. CEDAW/C/39/D/6/2005.

Goekce (deceased) v. Austria (Decision), CEDAW Committee (6 August 2007) UN Doc. CEDAW/C/39/D/5/2005.

Ms. AT v. Hungary (Decision) CEDAW Committee (adopted 26 January 2005) Communication No. 2/2003, UN Doc. CEDAW/C/32/D/2/2003.

Town of Castle Rock, Colorado v. Gonzales, 545 U.S. 748 (2005).  

Opuz v. Turkey, 50 EHRR 28 (2010)

TREATIES

Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 26 June 1987, 1465 UNTS 85.

European Convention on Human Rights, art. 3, 3 September 1953, 213 U.N.T.S. 222.

International Covenant on Civil and Political Rights, arts. 6 and 7, 10 December 1966, 999 U.N.T.S 171.

Universal Declaration of Human Rights, arts. 6 and 7, G.A. Res. 217 (III) A, U.N. Doc. A/RES/217(III) (Dec. 10, 1948).

LEGISLATION

42 U.S.C. § 13925 (a) (8) (US).

Cal. Penal Code § 13700 (b) (California).

Domestic Violence Act 116 of 1998 (South Africa).

Domestic Violence Act, 1996 2 (1) (a) (Ireland).

Protection of Women from Domestic Violence Act, 2005 Ch. 1 §2 (f) (India).

U.N. REPORTS

Human Rights Council, Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or punishment, ¶ 26, UN Doc. A/HRC/7/3, (15 January 2008) (by Manfred Nowak).

UN Commission on Human Rights, Further Promotion and Encouragement of Human Rights and Fundamental Freedoms, Including the Question of the Programme and Methods of Work of the Commission Alternative Approaches and Ways and Means Within the United Nations System for Improving the Effective Enjoyment of Human Rights and Fundamental Freedoms, UN Doc. E/CN.4/1996/53 (6 February 1996) (by Radhika Coomaraswamy).

World Conference on the Advancement of Women, 15-26 July, 1985, Nairobi Forward-Looking Strategies, A/CONF.116/28/Rev (26 July 1985).

GENERAL COMMENTS

Committee Against Torture, General Comment 2, Implementation of Article 2 by States Parties, U.N. Doc. CAT/C/GC/2/CRP.1/Rev.4 (2007).

Committee on the Elimination of Discrimination Against Women, General Recommendation 19, Violence Against Women, U.N. Doc. A/47/38 at 1 (1993)

Human Rights Committee, General Comment 7, Article 7, U.N. Doc. HRI/GEN/1/Rev.1 (1994).

Human Rights Committee, General Comment 20, Article 7, U.N. Doc. HRI/GEN/1/Rev.1 (1994).

Human Rights Committee, General Comment 28, Equality of Rights Between Men and Women, U.N. Doc. CCPR/C/21/Rev.1/Add.10 (2000).

CONCLUDING OBSERVATIONS

Committee Against Torture, Concluding Observations on Hong Kong Special Administrative Region, UN Doc. CAT/C/HKG/CO/4, 19 January 2009.

Committee Against Torture, Concluding Observations on Lithuania, UN Doc. CAT/C/LTU/CO/2, 19 January 2009.

Committee Against Torture, Concluding Observations on the Philippines, UN Doc. CAT/C/PHL/CO/2, 29 May 2009.

Committee Against Torture, Concluding Observations on Serbia, UN Doc. CAT/C/SRB/CO/1, 19 January 2009.

U.N. RESOLUTIONS

UN Economic and Social Committee Res 14 (24 May 1984) UN Doc. ESC/RES/1984/14

UNCHR Res 1994/45 (4 March 1994) UN Doc. E/CN.4/RES/1994/45.

UNGA Res 40/36 (29 November 1985) UN Doc. A/RES/40/36

UNGA Res 45/114 (14 December 1990) UN Doc. A/RES/45/114

UNGA Res 48/104 (20 December 1993) UN Doc. A/RES/48/104

UNGA Res 58/147 (19 February 2004) UN Doc. A/RES/58/147.

Declaration of Own Work

I , Cristina Kinsella, do hereby declare that this work that is submitted for assessment is my own and that due credit has been given to all sources of information contained herein according to the rules that govern the Irish Centre for Human Rights and the Faculty of Law. I acknowledge that I have read and understood the Code of Practice dealing with Plagiarism and the University Code of Conduct of the National University of Ireland, Galway and that I am bound by them.

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