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GENDER PERSPECTIVES ON TORTURE: Law and Practice
treatment was later broadened to include sexual violence committed by private persons and acts
committed in private spaces. For example, rape was first recognized as a form of torture when
committed by State agents in State facilities such as prisons. Nonetheless, it has proven difficult
to establish that acts committed in private spaces constitute torture, and they have tended to be
considered degrading and inhuman treatment.
The article analyzes, through different judgments and jurisprudence from the universal human
rights system and the African, European and Inter-American regional systems, a clear progress
toward the inclusion of a gender perspective in the definition of torture, the current need to con
tinue challenging this definition in order to include the harm done to women specifically by private
actors beyond rape and sexual violence, and the content of the obligation to investigate when apply
ing the due diligence standard for violence against women.
I. Regulation of Sexual Violence and Gender-Based Violence as Torture
Under International Law
Back in the 1980s, Rhonda Copelon fought to get forms of violence against women, includ
ing rape and domestic violence, which were considered “private matters” at the time, recognized
under international law for what they truly were: clear examples of discrimination against women
and serious violations of women’s human rights.2
International Criminal Law (ICL) and International Human Rights Law (IHRL) include provi
sions to punish these crimes. While ICL addresses individual responsibility and IHRL addresses
State responsibility, a review of both bodies of law may be helpful in achieving a fuller understand
ing of the elements of these types of crimes and violations of rights. Torture is a salient example.
This crime is punished under jurisprudence issued by courts charged with enforcing both bodies of
law, so these courts may influence each other as they work toward a more thorough interpretation
and understanding of this form of violence.
The prohibition of torture under international law has achieved peremptory norm (jus cogens)
status. Torture must therefore be prosecuted as an international crime and a serious human rights
violation. International law further requires all States to punish those responsible for acts of torture
within their jurisdictions under domestic law or extradite them for trial in another jurisdiction,
under the principle of aut dedere aut judicare. However, these advances have not succeeded in pro
tecting the numerous women and girls who continue to suffer violence at the hands of State or
non-State agents in both the public and private spheres.
It is true that the States’ responsibility under IHRL for acts of violence or torture committed by
non-State agents is a type of responsibility difficult to adjudicate, and is based on the principle of
due diligence3. This principle marks a minimum in the performance of the State to comply with the
obligation of respect for human rights. It also establishes the responsibility of States for the viola
2
Gaer, Felice (2012): Rape as a Form of Torture: The Experience of the Committee against Torture, CUNY Law
Review, Vol. 15, p. 293.
3
“States should condemn violence against women and should not invoke any custom, tradition or religious
consideration to avoid their obligations with respect to its elimination. States should pursue by all appropriate
means and without delay a policy of eliminating violence against women and, to this end, should: (…) (c)
Exercise due diligence” UN. Declaration on the Elimination of Violence against Women, A/RES/48/104, 85th
plenary meeting, 20 December 1993, 48/104. http://www.un.org/documents/ga/res/48/a48r104.htm.
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