60 GENDER PERSPECTIVES ON TORTURE: Law and Practice and which “disregards the harm that women often suffer.”13 However, jus cogens norms were devel­ oped “by privileging the experiences of men over those of women, providing protections to men that are not available to women.”14 In the framework of torture, this has proven to be an obstacle to including the harm done to women within the definition of torture, because although women are also “victims of torture in the public sphere, most of the violence (...) takes place in the private, nongovernmental sphere.”15 An important symbolic step forward was made in January 2008, when General Comment No. 2 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“Convention against Torture”) specifically mentioned rape and others forms of gen­ der-based violence as torture, as well as the positive16 and negative obligations of States regarding these forms of torture: “Since the failure of the State to exercise due diligence to intervene to stop, sanction and provide remedies to victims of torture facilitates and enables non-State actors to com­ mit acts impermissible under the Convention with impunity, the State’s indifference or inaction provides a form of encouragement and/or de facto permission. The Committee has applied this principle to States parties’ failure to prevent and protect victims from gender-based violence, such as rape, domestic violence, female genital mutilation, and trafficking”.17 The office of the UN Special Rapporteur on Torture has also played an important role in achiev­ ing recognition of women’s rights as human rights.18 But, official recognition would not come until the 1990s, with the Vienna and Beijing Declarations.19 In what was considered a major step for­ ward in the struggle for women’s rights, Peter Kooijmans, the first Special Rapporteur on Torture, argued in 1986 that prison rape should be viewed as a form of torture under the Convention against Torture (hereinafter “CAT”).20 This marked the first time rape was considered torture, albeit only when committed by State agents in public facilities such as prisons. Later, in 2008, Special Rapporteur on Torture Manfred Nowak issued an extensive report on tor­ ture with a gender perspective.21 Regarding a definition of torture that takes gender into account, the Special Rapporteur cited the elements of the definition of torture provided by the Convention 13 Miguel, Carmen (2016). Refugiadas. Una mirada feminista al derecho internacional. Pp. 218 et seq. Ed. Catarata. Madrid. 14 Ibid. Miguel, Carmen, p. 221. 15 Ibid. Miguel, Carmen. p. 222. 16 The theory of positive obligations is a vital tool for raising awareness of violence against women not as a private matter, but as a human rights violation, and one which allows State responsibility to extend not only to acts committed by the State but also to those committed by non-State parties. Preventive measures are an example of a positive obligation. 17 CAT General Comment 2, para. 18. 18 Gaer, Felice. Op. cit., p. 294. 19 Ibid. 20 Cf. UN Econ. & Soc. Council [ECOSOC], Comm’n on Human Rights, Torture and other cruel, inhuman or degrading treatment or punishment, pp. 119, 138, UN Doc. E/CN.4/1986/15 (1986) (prepared by Peter Kooijmans), UN ECOSOC, Comm’n on Human Rights, Question of the human rights of all persons subjected to any form of detention or imprisonment, in particular: torture and other cruel, inhuman or degrading treatment or punishment, pp. 18, 19, UN Doc. E/CN.4/1995/34 (Jan. 12, 1995) (prepared by Nigel S. Rodley); UN Human Rights Council, Promotion and protection of all human rights, civil, political, economic, social and cultural rights, including the right to development: Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, UN Doc. A/HRC/7/3 (Jan. 15, 2008) (prepared by Manfred Nowak). 21 HRC. Promotion and protection of all human rights, civil, political, economic, social and cultural rights, including the right to development. Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Manfred Nowak. A/HRC/7/3 15 January 2008.