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GENDER PERSPECTIVES ON TORTURE: Law and Practice
State actors (arts. 2, 12, 13 and 16)” (para. 20). It recommended that Canada incorporate torture
perpetrated by non-State actors into its domestic law.
The Canadian Government was aware of non-State torture crimes prior to its appearance
before the Committee against Torture in 2012. In 2008, a Canadian NGO shadow report sub
mitted to the United Nations Committee on the Convention on the Elimination of All Forms of
Discrimination against Women (CEDAW) recommended naming and criminalizing non-State
torture (Canadian Voice of Women for Peace). The shadow report included women’s testimo
nies of non-State torture, detailing the severity of the pain and suffering they endured. Efforts
to recover from this torture were described as feeling like being tortured all over again: it is
“double torture . . . which is a most agonizing, exhausting, and debilitating struggle for sur
vival, post-torture” (p. 23). Double torture for women means re-constructing a relationship with
oneself, and requires undoing survival dissociative responses that automatically developed as
a reaction to the severe physical, sexualized, and mental pain. It means coping with the remem
bered terror and horror that flashbacks ignite, and re-experiencing feelings of deep humiliation,
consequences of dehumanization, degradation, and sexualized torture that accompany involun
tary re-enactments. A major tactic of torturers is to intentionally humiliate, thereby destroying
an individual’s personal integrity and dignity (Vorbrüggen & Baer, 2007), ordeals that are exactly
what human rights treaties are designed to prevent.
The NGO shadow reports of 2008 and 2012 sought human rights entitlement, and non-discrimi
natory equal protection of the law, for women tortured by non-State actors. Canada’s Criminal Code
only permits individuals tortured by Canadian State officials—for example, a peace or public offi
cer or member of the Canadian Forces—to invoke the United Nations Convention against Torture
and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT) (General Assembly,
1984) in a Canadian court of law under section 269.1 (Government of Canada, 2016). This is a fail
ure of State protection obligations.
Fulfilling Gender-Sensitive International-National Due Diligence Obligations
There are several national and international reasons for Canada to adopt the gender-sensitive
recommendation made by the Committee in relation to criminalizing non-State torture. Most
provisions of the United Nations Universal Declaration of Human Rights (UDHR) have custom
ary international law status, including the absolute prohibition on torture (Article 5). Therefore,
for Canada to become a human rights standard bearer once again, it should fulfil its most basic
human rights obligations. The preamble of the UNCAT acknowledges States’ obligations under
the Charter of the United Nations, particularly Article 55, which promotes universal respect for
non-discriminatory human rights and fundamental freedoms for all members of the human fam
ily, which should, and must, include women. Women’s equal protection of and before the law is
mandated by Articles 2 and 7 of the Declaration. Equal protection should translate into non-State
centric structural and legal due diligence obligations to promote, protect, and fulfill, equitably and
reasonably, the human rights of women not to be subjected to torture, irrespective of whether the
torturers are non-State or State actors.
The UDHR does not assign human rights to a specific duty-holder, such as protection only to
individuals tortured by State actors; the right not to be tortured belongs to all individuals (Clapham,
2006; Cook, 1994; Romany, 1994; Schlütter, 2012). Copelon (2000) wrote that achieving “gender justice
. . . [is] revolutionary and one of the ultimate tests of universal justice” (p. 219). This struggle remains
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