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GENDER PERSPECTIVES ON TORTURE: Law and Practice
private actor (a former common law husband) against his former wife. The Committee highlighted
the State’s failure to provide adequate redress for the woman, as there were no women’s shelters
that had adequate facilities for her and her disabled child to flee from her husband’s continued vio
lence (four years). The Committee also pointed to the State’s failure to take the husband, who had
beaten his wife so badly she had to be hospitalized, into custody, although he repeatedly attacked
her at her home and was, at the time, subject to criminal proceedings. As Rudolf and Eriksson
rightly point out, the Committee “based its understanding of the situation . . . on the prohibition
of gender discrimination seen as the state’s obligation to ensure effective equality,” (2007, p. 522;
see also Reddy, 2016, pp. 505-508) but not the State’s international jus cogens obligation to prevent
violence against women. In other words, the Committee’s main emphasis is on the elimination of
discrimination, not ending violence against women. Nevertheless, there is room, as demonstrated
in the case, for violence against women to be read into the equality standard. For instance, at the
time, Hungary admitted that its domestic laws were inadequate and in the process of being re-writ
ten, most likely as a consequence of accession to the European Union (EU). However, it is not nec
essarily that ‘easy’ in other situations, such as the Canadian example which this paper describes,
and therefore certainly needs to be treated with caution for other more challenging situations. It is
also the case that the individual petition procedure is onerous on the person suffering the discrim
ination and violence. It is not a systemic, transformative solution (see generally Fredman, 2008).
Rather, it permits the State to ‘wait and see’ if someone will make a complaint, instead of fulfilling
its positive obligations under international law where it knows the violence is occurring. In other
words, the jurisprudence of the Committee to date is growing, but not yet developed enough to fill
the normative gap.
Alongside its judgments, the CEDAW Committee has issued several recommendations that
are relevant to addressing violence against women. This includes General Recommendations 12
(1989) and 19 (1992). Both recognize the family as a site for violence against women. Indeed, these
General Recommendations constitute a blueprint (in part) for any new global instrument. General
Recommendation 19 provides an interpretation that is vital as an underpinning of any possible
treaty, as it interprets violence against women and girls as a form of discrimination against them,
meaning “violence that is directed against a woman because she is a woman or that affects women
disproportionately” (para. 6). It expounds on the types of violations that constitute discrimina
tion, including the right not to be subjected to torture, that would impair or nullify the enjoy
ment by women of their human rights under general international law and conventions (para. 7).
Paragraphs 8 and 9 clarify that the Recommendation is not only applicable to State actors, but also
to non-State actors.
Additionally, the DEVAW, ratified in 1993, provides a comprehensive framework in terms of
definition, scope, and State obligations to act with due diligence, and highlights the role of the
United Nations in the effort to eliminate violence against women. The DEVAW has formed the
basis for numerous subsequent resolutions and, as such, has served the purpose of drawing the
international community’s attention to gender-based violence. Other organs of the United Nations
aside from the CEDAW Committee and the Commission on the Status of Women (CSW, outcome
documents, agreed conclusions, etc.) have for many years recognized violence against women,
whether perpetrated in private or public, as a violation of human rights. Despite numerous doc
uments and instruments, including the United Nations General Assembly Resolutions; the work
of the United Nations Commission on Crime Prevention and Criminal Justice; General Comments
of both the Human Rights Council and the Committee on Economic, Social and Cultural Rights;
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