A/74/148
a pernicious form of discrimination. 23 Furthermore, in 1994, the Special Rapporteur
on violence against women, its causes and consequences, was appointed by the
Commission on Human Rights and, soon after, produced a framework for model
legislation on domestic violence (E/CN.4/1996/53/Add.2), followed by a key report
on the related due diligence obligations of States ( E/CN.4/2006/61) and, more
recently, on shelters and protection orders ( A/HRC/35/30).
18. Moreover, article 19 of the Convention on the Rights of the Child provides that
States shall take “all appropriate legislative, administrative, social and educational
measures to protect the child from all forms of physical or mental violence, in jury or
abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual
abuse, while in the care of parent(s), legal guardian(s) or any other person who has
the care of the child.” This provision complements and reinforces the generic
prohibition of torture and ill-treatment, enshrined in article 37 of the Convention,
which applies across custodial and extra-custodial contexts, and in both the public
and private sphere.
19. In its general comment No. 13 (2011) on the right of the chil d to freedom from
all forms of violence, the Committee on the Rights of the Child found that States are
required to take a range of measures to protect children from all forms of physical or
mental violence, injury or abuse, neglect or negligent treatment, maltreatment or
exploitation, including sexual abuse. The Committee emphasized the enormously
deleterious implications of violence against children, which often occurs at the hands
of members of their own household and which includes threats to their surv ival and
their physical, mental, spiritual, moral and social development.
20. The practice of international human rights mechanisms therefore supports the
conclusion that, in principle, domestic violence triggers a range of relevant legal
obligations of States under international human rights law, including their duties
under the universal, absolute and non-derogable prohibition of torture and illtreatment.
D.
Attributive analysis: due diligence and “perpetration”, “instigation”,
“consent” and “acquiescence” in the context of domestic violence
21. Negative duty to “respect” the prohibition of torture and ill-treatment. By
definition, domestic violence occurs in the context of the family or the home and,
therefore, is rarely seen as an official act of the State. Nevertheless, in certain
circumstances, State officials can be direct perpetrators of domestic violence, namely
when the State is involved in providing a home, such as in an orphanage or certain
forms of social care. Moreover, certain policies and practices adopted by the State
may amount to the instigation of torture or ill-treatment by private actors within the
meaning of articles 1 and 16 of the Convention against Torture. In the context of
domestic violence, this can include calls by political or State-endorsed religious
leaders to “discipline” household members through violence; official endorsement of
“honour”-based violence or other harmful practices, or of the social norms dictating
such practices, including coercive control over family me mbers; or discriminatory
political narratives openly encouraging violence and abuse against persons or groups
that are being marginalized for reasons such as gender, age, origin, race, religion,
disabilities or sexual orientation. The prohibition of torture and ill-treatment
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23
8/23
Committee on the Elimination of Discrimination against Women, general recommendation
No. 35 (2017) on gender-based violence against women, updating general recommendation
No. 19, para. 21.
19-11892