20 GENDER PERSPECTIVES ON TORTURE: Law and Practice gender-based violence was largely overlooked by human rights instruments altogether because of the general marginalisation of such acts and their victims. Acts and victims of gender-based violence were not seen as sufficiently ‘serious’ or important and, because of the traditional focus of human rights instruments on public acts, gender-based violence was largely understood as some­ thing which took place in the private sphere, carried out by private actors. There are at least three ways in which these classical understandings about torture and gen­ der-based violence are changing: 1. It has increasingly been recognised that acts of torture must be analysed through a gen­ dered lens. Persons who are tortured are often subjected to particular forms of violence linked to their gender or sexual orientation, including rape, mutilation of sexual organs, forced nudity, and the use of interrogation techniques which focus on sexual humilia­ tion. The gendered element of the crime can be crucial to understanding the purposive element of torture, which can be linked, for example, to discrimination or humiliation on the basis of gender, sexual orientation, and transgender identity, meant to instil fear in communities, and/or undermine the heterosexual ‘masculinity’ of the victim. Identifying gendered elements of the crime is also essential in understanding the impact of the crime on the victim and how the harms might best be remedied. In the Čelebići case, the International Criminal Tribunal for the former Yugoslavia recognised that it was ‘diffi­ cult to envisage circumstances in which rape, … could be considered as occurring for a purpose that does not, in some way, involve punishment, coercion, discrimination or intimidation.’3 2. The public-private distinction in human rights law is progressively being blurred. There is increased recognition that States are responsible when they fail to exercise due dili­ gence to prevent or respond to violence occurring in the private sphere. States have been found to be in breach of the prohibition of torture and ill-treatment when they exposed persons to acts of violence perpetrated by private actors. Furthermore, International juris­ prudence on States’ due diligence obligations has placed particular emphasis on various forms of gender-based violence, including killings and mutilations of women,4 domestic violence,5 and in some cases, the denial of reproductive rights.6 3. International criminal law standards do not limit acts of torture to conduct perpetrated by, at the instigation of, or with the consent or acquiescence of public officials. A range of non-State actors have been found liable for torture as an underlying offence within the context of the perpetration of war crimes, crimes against humanity, and genocide. When torture operates as one of those underlying offences, the definition diverges from the one applicable to torture as a discrete crime under human rights law, in that there is no need for the involvement of a public official.7 This phenomenon is not limited to the jurispru­ 3 Prosecutor v. Mucić et al., Case No. IT-96-21, Trial Judgment, ¶ 495 (Int’l Crim. Trib. for the Former Yugoslavia Nov. 16, 1998). 4 Gonzalez et al. (“Cotton Field”) vs. Mexico, Preliminary Objection, Merits, Reparations and Costs, Inter-Am. Ct. H.R. (Nov. 16, 2009) [hereinafter Cotton Field]. 5 Opuz v Turkey, 2009-III Eur. Ct. H.R. 107. 6 Human Rights Committee, KL v Peru, U.N. Doc. CCPR/C/85/D/1153/2003 (Nov. 22, 2005). 7 Prosecutor v Kunarac et al., Case No. IT-96-23-T & IT-96-23/I-T, Trial Judgment, ¶¶ 495-596 (Int’l Crim. Trib. for the Former Yugoslavia Feb. 22, 2001); Prosecutor v. Kunarac et al., IT-96-23&23/1-A, Appeals Judgment,¶ 148 (Int’l Crim. Trib. for the Former Yugoslavia June 20, 2002); Prosecutor v. Semanza, Case No. ICTR-97-20, Trial Judgment, ¶¶ 342-343 (May 15, 2003); Committee Against Torture, General Comment No. 2, Implementation of Article 2 by States Parties, ¶ 18, U.N. Doc. CAT/C/GC/2 (Jan. 24, 2008).