Highlighting the clarity on state obligations, acknowledgment of structural causes and intersectionality, Professor Christine Chinkin introduces General Recommendation 35 on gender-based violence against women and girls.
In 1992 the UN Committee on the Elimination of Discrimination against Women (the Committee) adopted its ground-breaking General Recommendation No 19 (GR 19) on violence against women, recognising gender-based violence as discrimination within Article 1 of the UN Convention on Elimination of All Forms of Discrimination against Women (the Convention). 25 years later the Committee has updated GR 19 through General Recommendation No 35 (GR 35). That GR 35 updates rather than replaces GR 19 is testament to the latter’s predominance in the normative framework for combating the scourge that is gender-based violence against women and girls.
In 1992 the Committee had virtually a clean slate in determining the scope of GR 19. In interpreting the Convention it drew upon principles that had been articulated in different human rights contexts, most notably the state’s duty of due diligence with respect to the acts of non-state actors as set out by the Inter-American Court of Human Rights.
In contrast, in drafting the new GR the Committee was faced with a vast array of material: its own concluding observations to states’ reports and opinions made under the Optional Protocol; instruments and jurisprudence from international and regional human rights institutions; and the wealth of experience captured in reports from UN agencies and the Human Rights Council Special Procedures, including those from the Special Rapporteur on violence against women. How to encapsulate 25 years of normative progress and experience, as well as craft a recommendation that continues the trajectory of furthering understanding of violence against women and determining appropriate measures of prevention, protection, punishment and transformative reparation, was a significant challenge to the Committee. In rising to it the Committee considered views and opinions from stakeholders – states, civil society and women’s organisations, UN entities and academia. I am pleased that the LSE Centre for Women Peace and Security was able to contribute to the process and support the Committee in this significant task. Combating violence against women whether in ‘peacetime’ or conflict is core to the Women, Peace and Security agenda.
GR 35 is rich in its scope and substance. It updates GR 19 and amplifies state obligations as set out in GR 28 and other recommendations such as GR 30 on women in conflict and post-conflict situations and GR 33 on access to justice. Indeed, one consequence of GR 35 is to emphasise how much of the Committee’s work has been imbued with addressing violence against women and girls. Here, I highlight just three of the most significant contributions of GR 35.
First, the Committee gives voice to structural causes of gender-based violence notably ‘the ideology of men’s entitlement and privilege over women’ (para 19) and the pernicious effects of prejudices and gender stereotyping, a theme that it has elaborated through opinions such as Vertido v the Philippines and R.P. B. v the Philippines. It recognises the adverse impact of aspects of contemporary life –environmental degradation, militarisation, displacement, globalisation of economic activities, foreign occupation, armed conflict, violent extremism and terrorism (para 14). Article 3 of the Convention requires states to take measures for the advancement of women in ‘all fields, in particular in the political, social, economic and cultural fields.’ GR 35 expands this enormously by recognising that violence against women occurs in: ‘all spaces and spheres of human interaction’; ‘the family, the community, the public spaces, the workplace, leisure, politics, sport, health services, educational settings and their redefinition through technology-mediated environments … the Internet and digital spaces.’ (para 20). In this broad scope it implicates both state and non-state actors and, in line with the conclusions of the International Law Commission, sets out clearly the responsibility of states for the acts or omissions of each.
Second, while GR 19 listed multiple manifestations of violence against women, like the Convention it gave little expression to the diversity of women. GR 28 spelled out that ‘discrimination of women based on sex and gender is inextricably linked with other factors … such as race, ethnicity, religion or belief, health, status, age, class, caste and sexual orientation and gender identity.’ GR 35 recognises that ‘gender-based violence may affect some women to different degrees or in different ways’ and accordingly that different legal and policy responses must be devised. The catalogue of affecting factors has been considerably extended: ‘ethnicity/race, indigenous or minority status, colour, socioeconomic status and/or caste, language, religion or belief, political opinion, national origin, marital and/or maternal status, age, urban/rural location, health status, disability, property ownership, being lesbian, bisexual, transgender or intersex, illiteracy, trafficking of women, armed conflict, seeking asylum, being a refugee, internal displacement, statelessness, migration, heading households, widowhood, living with HIV/AIDS, deprivation of liberty, being in prostitution, geographical remoteness and stigmatisation of women fighting for their rights, including human rights defenders.’ (para 12).
GR 35 recommends specific measures that may be required to address violence targeted against women within some such categories, for instance to repeal laws that allow for medical procedures on women with disabilities without their informed consent, or that criminalise abortion, sex work, or being lesbian, bisexual, or transgender. It also seeks the repeal of laws deemed protective – guardianship laws that restrict the ability of women with disabilities from testifying in court, or so-called ‘protective custody’. GR 35 is thus rich in specificities as well as capturing generalities: states are to examine ‘gender-neutral laws and policies to ensure they do not create or perpetuate existing inequalities’ and to take appropriate remedial action where this is the case. GR 35 highlights that women may be vulnerable to violence because of other state policies, for instance with respect to immigration or creation of statelessness and seeks a reduction of state control over women who may be marginalised or stigmatised by removing them from the ambit of criminal law. Throughout it advances measures that respect women’s autonomy and choice.
Third, GR 35 reiterates what are often viewed as major impediments to elimination of violence against women and effective state responses – culture, tradition, religion, fundamentalist ideology. But it also makes reference to factors that are less often remarked – reduction in public spending, austerity economics, extraterritorial corporate behaviour. The former are implicitly associated with the Global South; through this coupling the Committee tacitly recognises the complicity of the Global North in ‘the pervasiveness of gender-based violence against women’ and the culture of impunity (para 7).
While celebrating the progress made in the practice of states since the adoption of GR 19 the Committee is aware of the continued prevalence of gender-based violence against women and the continued impunity of perpetrators. The importance of systematic collection, analysis and publication of statistical data and research cannot be over-stated and the final paragraphs make a number of important recommendations in this regard, reinforcing recent reports of the Special Rapporteur.
GR 35 is a vital reminder of the importance of human rights in all policies and practices directed towards advancing international agendas, whether the Women, Peace and Security, eliminating violence against women and girls, Sustainable Development Goals or preventing and countering violent extremism. GR 35 reminds us that the personal safety and security of women must be ensured at all times, along with their dignity, autonomy and integrity.
About the author
Professor Christine Chinkin CMG FBA is Emerita Professor of International Law and founding Director of the Centre for Women, Peace and Security.