Istanbul Convention Poised to Enhance Global Efforts to Eradicate Violence against Women and Domestic Violence

Participants of the 16 Days of Activism against Gender-Based Violence Campaign from November 25 to December 10, 2014 had a newly enforceable instrument with which to galvanize action against violence against women (VAW) and domestic violence (DV). The Convention on Preventing and Combating Violence against Women and Domestic Violence[1] (Istanbul Convention or the Convention), a far-reaching regional treaty that builds on pre-existing international instruments addressing human rights and VAW and children, was adopted by the Council of Europe (COE) in April 2011 and entered into force on August 1, 2014.[2] At the time of this writing, sixteen COE member states have ratified the Convention, and an additional twenty-one have signed it.[3]

VAW and DV are pervasive human rights violations requiring urgent legislative and policy reforms. A 2013 prevalence study of VAW globally reported that thirty-five percent of women were victims of physical and/or sexual intimate partner violence or non-partner sexual violence,[4] and another global study estimated that almost half of women killed in 2012 were killed at the hands of intimate partners or family members.[5] An overview of prevalence studies in Europe suggested that one-fifth to one-quarter of women had experienced physical violence as adults.[6] In response to such widespread abuse and devastating consequences, the Istanbul Convention provides a comprehensive framework for prevention of VAW and DV, protection of victims, prosecution of perpetrators, and integrated policies for coordinated response, as well as a dedicated monitoring mechanism for states parties’ compliance with the Convention.[7]

Studies across Europe had demonstrated a very mixed picture of national responses and political will to address VAW, revealing considerable gaps in legislation, policies, and awareness, and highlighting the need for legally binding and harmonized standards.[8]  Despite enjoying high levels of political commitment for creating the Convention, negotiations for drafting it were complicated by a lack of agreement on the scope and approach.[9] Concepts and language established in other international documents were called into question,[10] including the definition of gender and whether VAW is a form of gender-based discrimination (the Convention defines gender as “the socially constructed roles, behaviors, activities and attributes that a given society considers appropriate for women and men” and describes VAW as both a form of discrimination against women and a human rights violation[11]). Discussions also included how to address violence against men and whether the treaty should have been dedicated to the various forms of DV or instead address DV in the context of VAW.[12] On these questions, the Convention reached a compromise, applying the Convention to all forms of VAW but highlighting DV as a component,[13] recognizing that women are at higher risk of gender-based violence and are disproportionately affected by DV, but also that men and children can be victims of DV,[14] and encouraging parties to apply the Convention to all victims of DV (but pay particular attention to female victims).[15]

The Convention stands on the shoulders not only of prior COE efforts,[16] but also a number of incremental but critical international and regional instruments addressing VAW and human rights more broadly.[17] In particular, the Convention builds upon the CEDAW framework, codifying and further developing CEDAW standards and establishing synergies between them.[18] While CEDAW does not explicitly address VAW, the UN Committee on the Elimination of Discrimination against Women (CEDAW Committee) recognized gender-based violence as discrimination under CEDAW.[19]  The CEDAW Committee further noted that states that fail to act with due diligence to prevent, investigate, and punish violations by private actors may be held responsible and may need to provide compensation,[20] duties that are binding in the Istanbul Convention.[21] While CEDAW aims to protect the rights of women, the Istanbul Convention “encourages” states to apply the Convention’s protections and services to all victims of DV.[22] The Istanbul Convention also goes further than CEDAW to provide definitions of gender, gender-based violence against women, DV, and VAW[23] (unequivocally framing VAW as a violation of human rights as well as a form of discrimination against women and expanding the CEDAW Committee’s definition of gender-based violence[24] to include economic harms[25]).

The Istanbul Convention also reaffirms several fundamental rights and protections declared in the first legally binding international instrument on VAW, the Convention of Belém do Pará.[26] It expands the reach of that convention in several ways, including by calling for a coordinated and holistic response[27] and by explicitly criminalizing various types of VAW.[28]  The Istanbul Convention widens the Convention of Belém do Pará’s definition of VAW to acts that not only cause the covered harms, but also acts that are likely to result in those harms.[29] In addition, the Istanbul Convention follows the lead of the Protocol to the African Charter on Human and People’s Rights on the Rights of Women in Africa[30] by recognizing economic harms as a harm within the scope of VAW,[31] cementing the right to be free from violence in times of war and peace,[32] and prohibiting harmful practices such as female genital mutilation and forced marriage,[33] but additionally provides more targeted directives to specifically address VAW and DV.  

The Convention’s mutually reinforcing measures to address VAW and DV include conducting research on and raising awareness of VAW and DV, providing civic education to promote gender equality, training professionals that interact with victims and perpetrators, providing specified victim support services and protections, addressing perpetrator recidivism and rehabilitation, extending states’ jurisdictions to crimes committed by their nationals overseas, affording protections to migrant victims, and encouraging international cooperation to tackle VAW and DV.[34] Notably, the Convention requires parties to criminalize specific manifestations of VAW,[35] including stalking, forced marriage, female genital mutilation, and forced abortion and sterilization, while also preempting as unacceptable justifications that the crimes were committed in defense of “honor” or for reasons of culture, tradition, or religion.[36] The Convention also requires parties to recognize gender-based VAW as a form of persecution when determining the refugee status of asylum seekers.[37] Two interacting bodies, one comprised of independent experts and another comprised of states parties’ representatives, will monitor implementation of the Convention.[38]

The Convention aspires to widen its sphere of influence beyond COE members by contemplating accession by any non-member state globally.[39] Yet, as ambitious and extensive as the treaty is, and as much as it attempts to provide more granular directives to eradicate VAW than the instruments that came before it, it is of course no magic bullet. Over twenty years after the adoption of the Convention of Belém do Pará, VAW is far from being eliminated in its states parties. But with lessons learned from that effort and, hopefully, sustained political commitment to advance gender quality, the Istanbul Convention may well outpace its precursor in its impact. As COE’s former Head of Gender Equality and Human Dignity acknowledged, the ability of the Istanbul Convention to stop impunity depends greatly “on how governments, parliaments, experts and civil society are going to use it.”[40] The Convention relies on concerted action of all such actors for its multi-pronged approach, so the Convention’s success crucially depends on their effective collaboration and coordination. In addition, UN Secretary-General Ban Ki-moon prudently warned that “there is no blanket approach to fighting violence against women. What works in one country may not lead to desired results in another.”[41] The nuanced and iterative conversations regarding appropriate domestic laws, policies, and implementation practices responsive to the Convention have only just begun in some states and have yet to be taken up in others. Thus, the lion’s share of the hard work remains, but early signs of the Convention’s influence are promising as states and civil society begin to rise to the task of aligning domestic frameworks with the Convention’s provisions.

About the Author: Mridula Shrestha is a Senior Legal Analyst in the Research and Assessments division of the American Bar Association’s Rule of Law Initiative. This Insight does not reflect the views of the American Bar Association or the American Bar Association Rule of Law Initiative.