By Georgia Marks
On 3 May 2018, the Welsh Centre for International Affairs held their Annual Law Lecture at the Temple of Peace. This lecture looked at the violence women face and discussed potential solutions, both within Wales and worldwide, with particular focus on the Istanbul Convention.
The event began with a speech by Jeremy Miles, AM for Neath and Counsel General for Wales, who gave us a background on how the Welsh Government was committed to tackling all forms of violence against women. This can be shown, he said, by the introduction of the Violence against Women, Domestic Abuse and Sexual Violence (Wales) Act 2015, which aims to improve the Public Sector response in Wales to gender based violence. This commitment is further reinforced by the National Strategy on Violence against Women, Domestic Abuse and Sexual Violence which was published in November 2016, and the Delivery Framework which is still in development. With regards to implementing the Act, Miles drew particular attention to the “Ask and Act” training carried out on over 70,000 employers of the Public Sector. The training aims to encourage an open dialogue for people to share their experiences so that this violence can be stopped. I think this training is a proactive and welcome addition to any campaign, but particularly one surrounding violence, as raising awareness on such prevalent issues will help form a united front in order to try and prevent such violence in the future. However, of course, given the delicate subject matter it is crucial that we approach this with sensitivity.
Miles then touched upon events surrounding gender-based violence awareness happening in Wales, of particular note was the “Don’t be a bystander” campaign which reinforced the importance of positive intervention and the Live Fear Free guidance available online. This campaign has been circulating throughout Wales and yet again reiterates the active role we, as members of society, must play. This is true- change does not happen if people remain passive and being fully educated is all part of the process.
Miles then went on to introduce Christine Chinkin, and provided us with a little bit of her background. Christine Chinkin, FBA, is an Emerita Professor of International Law and Director of the Centre on Women, Peace and Security at the London School of Economics. Also, together with Hilary Charlesworth, she won the American Society of International Law, 2005 Goler T. Butcher Medal ‘for outstanding contribution to the development or effective realization of international human rights law.’ Her academic work has taken her worldwide, she is a renowned feminist and an expert in post-conflict resolution. This puts her in good stead to comment on the issue of violence against women as she is an expert in her field.
Christine Chinkin took to the podium and began her speech by explaining the Istanbul Convention and how it addresses crime against women. She started off by expressing the view of the UN that gender based violence is a pandemic. She then went on to list some statistics: ¼-1/5 of women have experienced sexual violence; 15-20% of women have been in an abusive relationship; and 26% of women and 15% of men aged 16-59 have experienced some form of violence. The period of most heightened vulnerability, Chinkin stated, is on separation.
A task force was set up to assess the impact on women which concluded that this violence reduces women’s productivity and lowers their overall educational development. The task force also stated that there was a clear need for a European wide convention, which is now the Istanbul Convention. Chinkin emphasised that this Convention was not negotiated in a vacuum, it was built upon a normative standard, with the idea of bringing violence against women into the discourse of human rights. This appears to be positive, as a Convention must reflect the needs of society, so it is quite right that a rigorous negotiation process was carried out to ensure that the Convention provided well rounded protection.
Chinkin then went on to establish violence against women in the background on international law, and gave us the history surrounding the creation of the Istanbul Convention in 2011. She stated that originally human rights advocates criticised the Convention on the Elimination on All Forms of Discrimination against Women 1979 (1979 Convention) due to the fact that in reality state action fails to address violence against women and by non-state actors. This focus on state agents is a problem, Chinkin stated, due to the fact that the statistics that she gave above concerned violence carried out by non-state actors, which is a major societal issue. However, it is worth noting that Article 2(e) of the 1979 Convention committed to take all appropriate measures to eliminate discrimination against women by any person, organization or enterprise. This horizontal application (private individual against another private individual) of Human Rights Law, which moves away from the classic human rights framework (which is vertical and focuses on violations of the individual by the state). Subsequent recommendations were made, by the General Assembly and in the Beijing Conference which both regarded violence against women as a concern. Chinkin established that the need to target gender based violence was only expressed in soft law form (in the shape of opinions and reports) at that point. The judgments of the European Court of Human Rights (ECtHR) had to read issues of violence against women into their judgments as there was no legally binding instrument to refer to. The only legally binding instruments were regional, so the Treaties in the Americas and Africa. Therefore, Chinkin noted, Europe was lacking behind. As a result of the uncertainties of the scope of obligations, the Istanbul Convention was adopted in 2011, of which 30 states are party to it.
Chinkin then went on to establish why the Istanbul Convention is so important. First and foremost, it is a hybrid convention that brings human rights and domestic law into the Convention in an innovative way. The human rights Treaty locates violence against women within the family, community and state. The Treaty sets out state’s both the state’s negative obligation (to refrain from acting in a way that will contribute to the issues of violence against women) and positive obligation (to provide a legal and social framework through active measures). This requires compensation through reparations and provides a monitoring body for the Council of Europe. Importantly it is applicable in conflict and in peace. In terms of the criminal law element, the Convention incorporates legislative change domestically. Violence against women is not exactly an international crime, so within an international treaty there is a need to identify specific crimes within the rubric of violence against women. Importantly, criminal law incorporates specificity in comparison with human rights. This was one of the most important parts of Chinkin’s speech as what appeared to be lacking previously within the law was resolved by incorporating everything into a fused system, which can be positively viewed as providing a larger scale of protection to women.
The hybrid system meant that a lot of time was spent within the drafting process on deciding which crimes come within the Convention. Chinkin expressed that by bringing crimes within the concept of violence against women adds coherence, resolving the original uncertainty of what constituted such violence. The crimes that were discussed were regarded by some as social problems as opposed to criminal, but now crimes such as economic and psychological harm, stalking and sexual violence come within the Istanbul Convention and gives the first legal definitions of these crimes. At the end of the event, a member of the audience commented on the Islamophobia in relation to violence against women that is prevalent in today’s society and asked the speakers’ view of whether this should come under criminal law. Chinkin answered with the conclusion that it should be criminalised. The behaviour that the member of the audience described comes within the Convention and should be recognised as unacceptable. However, there are always others ways of accountability as criminalisation might not be appropriate in all circumstances. This is true, every response to a certain abuse must be tailored.
Chinkin remarked that during negotiations, there was particular debate surrounding whether the crimes would be defined in light of men’s perceptions, or by women’s experiences. However, the focus was on that of the victim in definitions. I think this is crucial to the Convention as the opposite conclusion could have easily led to the isolation and hostility towards women of which the Convention was supposed to protect. Importantly, the speaker stated that there are no defences on justification for violence against women for reasons such as culture or custom. Chinkin also noted that State parties are required to undertake assessment and management of risk of the overall social environment whilst also looking at the appropriate measures for individual women. In this sense, the speaker points out, the convention has a holistic and practical approach. This is a positive aspect of the Convention as it is important to place the Convention within the relevant society so that it can be at its most effective. In particular, Chinkin drew attention to the holistic approach of the Council of Europe of the 4 Ps: prevention of violence against women, protection, provision of services and participation of women in policy. However, the speaker also mentioned an extra P: integrated government policy. Therefore, the Convention brought together standards into a legally binding instrument. Such an instrument requires both pre-emptive and protective measures as well as accountability. The Convention builds on international law and supplements, whilst also recognising violence as a serious crime and within the problem of social hierarchy. When asked to give the audience a flavour of the impact of the Istanbul Convention and the difference it will make to women, Chinkin answered by stating that the Convention was the first step and particularly that actions that will bring in laws are important. There needs to be a holistic approach with reference to the CEDAW reports. Importantly, however, now there is a level of awareness surrounding these issues in most states.
Chinkin then went on to talk about the tensions within the negotiation stage of the Convention. These negotiations, she said, were not straightforward, particularly because the delegates were not human rights experts, but were more experienced in the field of criminal law. They did not understand human rights instruments nor which Conventions states were party to. There was a priority, however, to ensure that the language in The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) was kept. Chinkin expressed that the major issue within the negotiations was rooted in gender, in particular the definition of gender. It was argued, she said, that domestic violence is not gender based, and that the issue was regarded as social rather than legal. However, Chinkin argued, this contention was wrong as violence is disproportionate against women. She further argued that all children should be educated with comprehensive sexuality education, however, this in regards to gender sensitive policy is contentious as there are freedom of expression problems. For example, Croatia made an interpretive statement that there is no requirement for gender ideology. At the end of the talks, a member of the audience mentioned Chinkin’s reference to how gender ideology is used and misused and asked her to elaborate. Chinkin expressed that in terms of misuse, gender is becoming a code word for sexual identity and any mention was viewed as an attempt to bring rights around such identity, for example in the Columbia Peace Process gender was used to refer to family, homosexuality and gender identity. She went on to emphasise that this misinterpretation was beginning to spread and the further difficulties in trying to undo.
The most controversial definition given was within the context of domestic violence, which is defined as gender neutral, which in turn makes it inappropriate to have a woman specific convention. However, Chinkin established that a compromise was reached by providing a definition of gender neutral that is encouraged to all but with a particular focus on women. The Former Special Rapporteur stated that violence against men occurs but has less impact and is not grounded in structural discrimination, thus, to give the two issues the same treatment and resources would ignore reality whilst also ignoring the systematic nature of violence against women. This view has merit and appears to be a particular issue as if their resources are the same, Chinkin stated, that this would not be balanced in reality. Violence against everyone, she said, is important but the treatment needs to be adjusted, rather than having a one size fits all approach. This is a valid response which recognises violence generally while tailoring the treatment to fit with the reality, thus fully utilising all resources in an appropriate way.
Chinkin then continued her speech by looking at the United Kingdom’s role in the Convention. She said that the UK government would be a prominent country to become party, but they took a passive role, signing the Convention in June 2012 but having not ratified the Treaty yet. However, the UK are party to CEDAW and the Treaty of Rights Against the Child, as well as adopting some of the measures already contained in the Convention, such as criminalising forced marriage. The UK claims that it cannot ratify until all domestic law is amended. However, Chinkin noted, the UK exercises extraterritorial jurisdiction, so should it really be that difficult to ratify the Convention?
The speaker then established whether we have a global treaty to combat violence against women. The Former Special Rapporteur claimed that there was no such treaty. However, Chinkin noted, the Istanbul Convention would be a good model for such a treaty. There is potential for the Istanbul Convention to be universal, but no state outside of the Council of Europe is party to it. In this sense then, she said, the Convention being universalised would be problematic as it is European. Additionally though, CEDAW was updated through soft law in 1992; over 25 years of practice has endorsed the interpretation that the prohibition of violence against women has evolved into custom, which may remove the need for a global treaty. As a general recommendation, Chinkin suggested that violence against women in all spaces should be emphasised and that different legal responses should be devised. For example, the approach for disabled women who have undergone medical procedures without their consent should be different from looking at women’s vulnerability through immigration. Chinkin then established that a global treaty could have a large impact but could lead to dilution of what we already have. Having a global treaty would appear to have merit in building on well established custom, however, if countries have not signed the Istanbul Convention outside of the Council of Europe, would they be likely to ratify a global treaty? For now it seems that custom is the strongest route to globalising the approach to.
Chinkin concluded her speech by expressing that there is enough in the Convention to provide a framework, but it needs to be applied with resources and kept in review. The evolution of the Istanbul Convention should be with reference to CEDAW. She finished by stating that if the UK government became a party it would be of strength to the Convention.
Chinkin’s speech had many valid points, in particular that the Convention should keep up to date with reality. In this sense then, there is a push towards the Convention being a living instrument that is flexible to meet the needs of an evolving society. This idea should be welcomed.
The Chair of the event, Jackie Jones, Professor of Feminist Legal Studies at the University of the West of England, then came to the podium to speak about the UK and Wales’ response to violence against women. Jones started off by stating that there is a continued call for a global treaty for violence against women and girls. In regards to the UK’s response, they have taken a back seat role, having never nominated someone to CEDAW and are only finally considering doing so now. Jones rightly stated that from this it seems that the UK is not a leader in gender equality. Nevertheless, Jones established that the UK has done good work but more could be done, for example, ratifying the Istanbul Convention is just one thing that it could do. The issue of having to amend their domestic legislation is not a good enough reason not to ratify given their powers of extraterritoriality.
Jones then drew particular attention to Wales, which she said has proven to be good for normative instruments. However, she reiterated that there is always more to do, particularly within the pushbacks about gender in the making of legislation. Nevertheless, the 2015 Act in Wales, she said, is what due diligence looks like. It is also worth noting that the funding for these Welsh policies are coming from Westminster, which shows that Wales are prioritising the protection of women and that the money isn’t just coming from thin air. This point is of particular importance as it shows that Wales appears to be a lot more active than the UK in general but also this is a good thing as it could push the UK to be a leader of gender equality. The Istanbul Convention, she says, has added value in Wales, as putting a human rights perspective within criminal law is really important. Jones expressed that a lot of provisions were already there but more is needed, such as specialist measures and services because of need, for example FGM clinics. However, in the Q&A session after the event, the view was expressed within the audience that Wales have created effective policies but that she disagreed with the criminalisation of female genital mutilation and the introduction of the clinic. How is it effective, she said, if people are being stigmatised? In her response, Jones likened FGM to arranged marriage in that both should, and are, criminalised. She viewed the criminalisation as justified, however there were no successful prosecutions yet. Chinkin added to the debate by saying that human rights have to be crafted and put into effect in consultation. The top-down approach will not work, she said, as although we need normative standards we also need to include a bigger level of consultation. This idea of consultation appeared to be desirable in the context that the individual was referring to. Both of these responses are valid but it looks to be beneficial if the solution is to combine these views: FGM is a clear human rights abuse but consultation may be needed to try and work around the stigmatisation of the criminalisation in these cultural communities.
Jones concluded by reiterating the importance of the 2015 Act in Wales but that there is always more to do in the realm of violence against women.
Overall, this event provided the audience with a well-informed discussion on how the issue of violence against women is being dealt with both here in Wales and across Europe. This issue seems prevalent everywhere, which is why it seems a shame that the UK are not at the forefront of the debate. However, it seems hopeful that Wales’ commitment to eradicating violence against women will set an example for the rest of the UK. In regards to the Istanbul Convention, it appears to be having a positive impact in at least raising awareness to the issues discussed whilst also providing a newly legal platform which will hopefully pave the way for progress in this area.