DRAFT CEDAW General recommendation on Trafficking in Women and Girls in the Context of Global Migration unequivocally a phenomenon rooted in gender-based discrimination and inequality and constitutes gender-based violence against women.24 15. Trafficking in women and girls may amount to torture or cruel, inhuman or degrading treatment.25 The direct obligation of non-State actors to respect the prohibition of torture, as a peremptory norm (jus cogens), is set out in both international humanitarian law and human rights law. 26 States parties’ obligation to exercise due diligence to prevent, investigate, prosecute and punish acts of trafficking is reinforced by international criminal law, including jurisprudence of the international and mixed criminal tribunals and the Rome Statute of the International Criminal Court, pursuant to which enslavement in the course of trafficking in women and girls may constitute a war crime, a crime against humanity or an act of torture constitute an act of genocide.27 c. Scope of application of the Convention 16. States parties’ obligation of due diligence to suppress all forms of trafficking in women and girls extends to the acts or omissions of all perpetrators, including private persons, intimate or extended family members and intimate partners, as well as organizations or enterprises.28 This includes the regulation of the activities of national corporations operating extraterritorially as affirmed in general recommendations No. 28 (2010) and No. 37 (2018)29 and reinforced in the United Nations Guiding Principles on Business and Human Rights.30 17. States parties are responsible for all their actions affecting human rights, regardless of whether the affected persons are in their territory.31 This includes obligations towards States parties’ nationals who are trafficked abroad. The obligations of States parties under the Convention apply without discrimination both to citizens and non-citizens, including refugees, 24 General Recommendations: No. 19 (1992) (HRI/GEN/1/Rev.9 (Vol. II)), para. 14; No. 28 (2010) (CEDAW/C/GC/28), para. 21; No. 30 (2013) (CEDAW/C/GC/30), para. 39; No. 32 (2014) (CEDAW/C/GC/32), paras. 14, 15, 55; No. 35 (2017) (CEDAW/C/GC/35), para. 12; No. 37 (2018) (CEDAW/C/GC/37), para. 75. 25 General recommendation No. 35 (2017) (CEDAW/C/GC/35), paras. 16-17. The Committee has set out that a gender-sensitive approach is required to determine when an act of gender-based violence against women amounts to torture or cruel, inhuman or degrading treatment. This requires an understanding of the level of pain and suffering experienced by women. The purpose and intent requirements for classifying such acts as torture are satisfied when acts or omissions are genderspecific or perpetrated against a person on the basis of sex. 26 General recommendation No. 35 (2017) (CEDAW/C/GC/35), para. 25. 27 General recommendations: No. 30 (2013) (CEDAW/C/GC/30), para. 23; No. 35 (2017) (CEDAW/C/GC/35), para. 16: ref. articles 7 (1) (g), 8 (2) (b) (xxii) and 8 (2) (e) (vi) of the Rome Statute of the International Criminal Court. Also see Article 9(1) of the Trafficking Protocol: “1. States Parties shall establish comprehensive policies, programmes and other measures: (a) To prevent and combat trafficking in persons; and (b) To protect victims of trafficking in persons, especially women and children, from revictimization.” 28 General recommendations: No. 28 (2010) (CEDA W/C/GC/28), para. 13; No. 35 (2017) (CEDAW/C/GC/35), paras. 21, 24(b), No. 32 (2014) (CEDAW/C/GC/32), para. 27. 29 General recommendations: No. 30 (2013) (CEDAW/C/GC/30), para. 10; No. 37 (2018) (CEDAW/C/GC/37), para. 48. 30 General recommendation No. 37 (2018) (CEDAW/C/GC/37), para. 48. The United Nations Guiding Principles on Business and Human Rights stipulate that businesses have a direct responsibility to respect and protect human rights, to act with due diligence to prevent human rights violations and to provide effective remedies for human rights violations connected to their operations 31 General recommendations: No. 28 (2010) (CEDAW/C/GC/28), para. 12; No. 30 (2013) (CEDAW/C/GC/30), para. 8. 5