Special Procedures of the Human Rights Council

The Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment (SR-Torture) frequently works with the SR-VAW. This position is mandated to transmit urgent appeals to states with regard to individuals reported to be at risk of torture, as well as communications on past alleged cases of torture, and undertake fact-finding country visits, which includes certain acts of VAW.

The SR-Torture has, together with the HRC, adopted the view that in many cases violence against women and girls constitutes torture. In addition to women and girls, the SR-Torture has also analysed the experiences of LGBTI persons, as all face discrimination related to their gender identity and/or sexual orientation which facilitates the practice of torture and ill-treatment. In 2016, the SR-Torture presented a report on this topic to the General Assembly, assessing:

“[5.]… the applicability of the prohibition of torture and other cruel, inhuman or degrading treatment or punishment in international law to the unique experiences of women, girls, and lesbian, gay, bisexual and transgender and intersex persons. Historically, the torture and ill-treatment framework evolved largely in response to practices and situations that disproportionately affected men. The analysis has thus largely failed to have a gendered and intersectional lens, or to account adequately for the impact of entrenched discrimination, patriarchal, heteronormative and discriminatory power structures and socialized gender stereotypes. He highlights in the report how the torture and ill-treatment framework can be more effectively applied to qualify human rights violations committed against persons who transgress sexual and gender norms; identify gaps in prevention, protection, access to justice and remedies; and provide guidance to States on their obligations to respect, protect and fulfil the rights of all persons to be free from torture and ill-treatment.”

To begin the analysis, the report opens with the inclusion of women, girls and LGBTI persons’ experiences into the torture and other cruel, inhuman or degrading treatment or punishment legal framework, and the state obligations that result from doing so:

9. Gender-based discrimination includes violence directed against or disproportionately affecting women (A/47/38). Prohibited conduct is often accepted by communities due to entrenched discriminatory perceptions while victims’ marginalized status tends to render them less able to seek accountability from perpetrators, thereby fostering impunity. Gender stereotypes play a role in downplaying the pain and suffering that certain practices inflict on women, girls, and lesbian, gay, bisexual and transgender persons. Furthermore, gender intersects with other factors and identities, including sexual orientation, disability and age, that may render a person more vulnerable to being subjected to torture and ill-treatment (general comment No. 2). Intersectional identities can result in experiencing torture and ill-treatment in distinct ways. The torture protection framework must be interpreted against the background of the human rights norms that have developed to combat discrimination and violence against women.

…

11. States must exercise due diligence to prohibit, prevent and redress torture and ill-treatment whenever there are reasonable grounds to believe that such acts are being committed by private actors. This includes an obligation to prevent, investigate and punish acts of violence against women (A/47/38). 2 Indifference or inaction by the State provides a form of encouragement and/or de facto permission (general comment No. 2). This principle applies to States’ failure to prevent and eradicate gender-based violence. States’ failure to protect against prohibited conduct and effectively investigate and prosecute violations suggests consent, acquiescence and, at times, even justification of violence. When States are aware of a pattern of violence or the targeting of specific groups by non-State actors, their due diligence obligations are likewise engaged and they are required actively to monitor and review data, apprise themselves of trends and respond appropriately.

12. In Opuz v. Turkey, the European Court of Human Rights found that discriminatory judicial passivity and unresponsiveness to domestic violence gave rise to impunity and a climate that was conducive to such gender-based violence, leading to a violation of the prohibition of torture and ill-treatment. Furthermore, when a State knows or should have known that a woman is in danger, it must take positive steps to ensure her safety, even when she hesitates in pursuing legal action (A/47/38). Women’s rights to life and physical and mental integrity cannot be superseded by other rights, such as those to property and privacy. States have a heightened obligation to protect vulnerable and marginalized individuals from torture.”

The report also focuses on the experiences of women, girls and LGBTI persons in detention, including shackling of women in labour and invasive body searches. The experiences of girls, and those detained because of their migration status, is highlighted. The report also looks at crimes which are often committed by non-state actors, such as trafficking, domestic violence, rape and harmful practices, including “honour” based violence, female genital mutilation, child and forced marriage. Even though they are committed by non-state actors, the state’s failure to prevent, investigate and prosecute such crimes makes each of these offenses a violation of the right not to be tortured.

Within the report there also is an important section on torture and ill-treatment in health-care settings:

• denial of access to abortion and related care
• forced and coerced sterilisation, and,
• for LGBT persons: “[denial] of medical  treatment” and “[being] subjected  to  verbal  abuse  and  public  humiliation,  psychiatric evaluations, forced procedures such as sterilization, ‘conversion’ therapy, hormone therapy and   genital-normalizing  surgeries  under  the  guise  of  ‘reparative  therapies’”

The Special Rapporteur notes that “[t]hese procedures are rarely, if ever, medically necessary, lead to severe and life-long physical and mental pain and suffering and can amount to torture and ill-treatment.” [para 48]

The report concludes with important comments on access to justice and reparation and detailed and progressive recommendations to states:

“65. Victims of gender-based violence face significant hurdles in accessing justice and reparations, including absence of or shortcomings in domestic legal frameworks to hold perpetrators accountable, and practical obstacles such as the significant expense involved in accessing courts. Stigma can be a factor associated with gender-based crimes, and victims may fear rejection by families and communities and encounter personnel who are not properly trained to respond to their needs. All victims must be granted access to effective judicial and administrative remedies. This entails the dismantling of discriminatory barriers and the provision of support to victims at all stages of the legal process.

66. Reparations must be premised on a full understanding of the gendered nature and consequences of the harm suffered and take existing gender inequalities into account to ensure that they are not themselves discriminatory (see A/HRC/14/22, para. 32). They must address the context of structural discrimination in which violations occurred and aim to provide both restitution and rectification.41 Reparations must have a transformative impact, addressing the underlying causes and consequences of violations, and offer continued protection for and respectful engagement with victims (A/HRC/14/22). As stipulated in the Nairobi Declaration on Women’s and Girls’ Right to a Remedy and Reparation, victims must be empowered to help determine what forms of reparation are best suited to their situation.”

Want more? Read the full 2016 report

In his earlier 2008 annual report, the SR-Torture, Manfred Nowak, also acknowledged that certain forms of VAW constitute torture and called for the legal framework to be applied in a gender-inclusive manner. In this report, he stated (emphasis added):

“The Special Rapporteur concluded that torture and ill-treatment can occur in different private contexts. He pointed to the striking parallels between “official” and “private” torture in terms of strategies, process and resulting trauma, and showed that State acquiescence can occur at different levels. In order to ensure a gender-inclusive approach to torture, the Special Rapporteur underlined the need to perceive it as a process. Mental trauma does not happen at one point in time, but needs to be put in context. With regard to sexual violence, stigma is a crucial element at all stages, starting from its humiliating intention as well as its impact which, apart from the often devastating physical and mental consequences, often entails exclusion from the family and/or community and can lead to outright destitution.”

Want more? Read the full 2008 report

In addition to general reports, the SR-Torture also investigates and issues recommendations on VAW during country visits. In a report issued following a country visit to Denmark, the SR-Torture noted:

“In light of the Special Rapporteur’s report to the Human Rights Council on using the anti-torture framework to strengthen the global campaign to end violence against women, he is pleased to note that the attention to domestic violence by the Government of Denmark has begun to show positive effects as the number of cases reported seems to have decreased.

…Finally, the Special Rapporteur recommends, as a priority for the Greenland Home Rule Government, that it develop and implement an adequately resourced plan of action against domestic violence in Greenland in cooperation with actors with relevant experience, such as the Ministry of Welfare and Gender Equality.

The Special Rapporteur acknowledges that Denmark’s particular practice of allowing male and female detainees to associate freely, based on the principle of normalization, is widely accepted in Danish society, including by female detainees. However, in light of international standards which advocate a segregation of the sexes and the risks of the practice of non-separation of men and women, he points to the need to rigorously ensure that appropriate safeguards are in place and that female detainees can freely decide whether or not they want to mix with men.”

Want more? Read the full 2009 report | Read about the SR-Torture

The Special Rapporteur on the human rights aspects of the victims of trafficking in persons, especially women and children frequently works in cooperation with the SR-VAW and the Working Group on the issue of discrimination against women. This mandate specifically calls for the “identification of gender- and age-specific vulnerabilities in relation to the issue of trafficking in persons”. This identification of gender-specific vulnerabilities covers all aspects of VAW that relate to trafficking. For example, in her 2007 report, the Special Rapporteur, Sigma Huda recommended that:

“…States amend their immigration legislation so that victims of forced marriages are not dependent upon their spouses for legal immigration status but can obtain residence permits independently of their continued relation to their husbands. Governments should recognize forced marriage, especially in the context of trafficking in persons, as a condition giving rise to a claim of asylum based on gender-related violence and other forms of human rights violations, and ensure that the women and girls concerned are not deported; “

Want more? Read the SR-Trafficking’s report  |  Read about the SR-Trafficking

The mandate for the Special Rapporteur on the human rights of migrants specifically calls for special attention to be given “…to the occurrence of multiple forms of discrimination and violence against migrant women” in its work and reports.

Want more? Read the full 2011 report | Read about the SR-Migrants

Impunity for violations and abuses against women human rights defenders persists in every part of the world, due to inadequate reporting, lack of investigation, access to justice and social barriers. In 2010, the Special Rapporteur on the situation of human rights defenders focused on the risks and violations that women human rights defenders and those publicly working on women’s rights or gender issues face, as well as the perpetrators involved. In her annual report to the General Assembly, the Special Rapporteur makes many recommendations concerning violence against women human rights defenders, including that member states “Protect women defenders and those working on women’s rights or gender issues from violations perpetrated by state and non-state actors by acknowledging such violations and by offering effective security measures”.

Want more? Read the full 2010 report | Read about the SR-HRDefenders

The work of the Special Rapporteur on the situation of human rights defenders may be particularly important for users of this website, who have been threatened or are otherwise at risk for their actions to promote the rights of women and girls: particularly those who work on politically sensitive issues such as sexual or reproductive rights, or women’s right to equality irrespective of the claims of culture or religion.

“20. Approaching the criminal justice system from a gender perspective involves an analysis of its impact upon women and men and ensuring that women’s rights, perspectives and needs, as well as those of men, are systematically considered. Historically and globally, women have been underrepresented as actors in the criminal justice system, even if they constitute a large proportion of the victims of crimes and human rights violations and are disproportionately affected by gender-based violence and discrimination…”

In 2011 the Special Rapporteur on the independence of judges and lawyers, Gabriela Knaul, submitted a report to the General Assembly on “Gender in the criminal justice system: the role of judges and lawyers”. This report addresses major obstacles to women’s access to justice, including the feminisation of poverty as well as laws, policies and practices that discriminate against women, and elaborates on the conditions required for the effective realisation of women’s rights to access to justice. Within the thematic cluster on gender and the judiciary, the report focuses on the conditions for developing a gender-sensitive judiciary, and the role of the judiciary in advancing women’s human rights.

Want more? Read the full 2011 report | Read about the Special Rapporteur on the independence of judges and lawyers

In 2012, the Special Rapporteur in the field of cultural rights submitted an annual report thematically focused on women. In it, she proposed a shift away from paradigms that suggest culture is an obstacle to women’s rights to one that seeks to remove the barriers that prevent women’s equal enjoyment of cultural rights. The report also referenced the work of the SR-VAW and recognised the isolation women face due to “fear of sexual harassment or violence and by social or religious ‘moral policing’”. In this regard, the Special Rapporteur recommended that states:

“Abolish or modify laws and regulations, policies and programmes that are based on, apply or sustain negative or harmful gender stereotypes, including through legislative measures and social policies and information and educational programmes”

Want more? Read the full 2012 report Read about the SR-CulturalRights

In 2013, the Special Rapporteur on the human rights of internally displaced persons, Chaloka Beyani, delivered a thematic report to the General Assembly on the situation of internally displaced women. In this report, it was recommended that all member states:

“Ensure meaningful participation of Internally Displaced women and girls in the development, implementation, monitoring and evaluation of laws, policies, programmes and activities that affect their lives at all stages of displacement, through ongoing and direct engagement in identifying priorities and devising and implementing responses to them”

Want more? Read the full 2013 report Read about the SR-IDPersons

Country-specific Rapporteurs also can address issues concerning VAW. In 2007 the SR-Myanmar worked with civil society to produce a report that called attention to Myanmar’s inadequate exercise of due diligence with regard to acts of VAW:

“In 2006, the Special Rapporteur received information about 30 cases of rape of Chin women. …. The Special Rapporteur is not aware of any initiatives by the Government of Myanmar to look into these serious human rights abuses with a view to identifying the perpetrators and bringing them to justice. The failure to investigate, prosecute and punish those responsible for rape and sexual violence has contributed to an environment conducive to the perpetuation of violence against women and girls in Myanmar.”

Want more? Read the full 2007 report | Read about the SR-Myanmar