Blog post written by IHRC Student Anna Saber.
On October 1, 2016, Santa Clara University’s International Human Rights Clinic (Clinic) prepared and submitted a response to a questionnaire sent by UN Special Rapporteur on Violence Against Women, Ms. Dubravka Šimonović. A special rapporteur, also known as an “Independent Expert,” is a private individual working on behalf of the United Nations to investigate, monitor and recommend solutions to specific human rights problems. These special rapporteurs often solicit input from civil society organizations to assist them in fulfilling their mandate. In this case, the Clinic responded to Ms. Šimonović’s questionnaire on the need for a new UN treaty addressing the issue of violence against women and girls. Her questionnaire focused on understanding if, and why, there was a need for a new treaty, what are the current normative gaps in international treaty law to address violence against women, and what provisions a new treaty should contain to address these shortcomings. The Clinic hopes that our submission helps inform Ms. Šimonović to support the creation of a new UN treaty on violence against women.
Currently, there is no independent UN treaty that specifically addresses violence against women in a way that makes such violent acts a violation of human rights. The only relevant and legally binding treaty within the UN human rights normative framework is the Convention on the Elimination of Discrimination Against Women (CEDAW), a treaty which calls for the eradication of discrimination based on gender, focusing on enumerating women’s political, social and economic rights, as well as rights related marital and family rights. In the realm of violence against women, CEDAW falls short because the convention’s text does not mention the words violence, sexual assault, or rape. Consequently, CEDAW has to be creatively interpreted to encompass violence against women normative standards.
The Clinic took the opportunity to submit a response to advocate that this creative exercise of tangentially relating violence against women to CEDAW provisions is not an adequate way to address violence against women. Rather, a new treaty devoted solely to the issue of addressing violence against women and a new treaty body (the entity charged with interpreting and enforcing the treaty provisions) is needed to ensure that victims of violence against women can seek redress and perpetrators of the violence are punished.
Clinic Student Anna Saber, under the supervision of Clinic Director Francisco Rivera, drafted the submission, which can be found here. Of the five questions posed by Ms. Šimonović, the Clinic provided responses to (1) “Do you consider that there is a need for a separate legally binding treaty on violence against women with its separate monitoring body?” [yes] and (2) “Could you also provide your views on measures needed to address this normative and implementation gap to accelerate prevention?”
Regarding the first question, the Clinic argued that a separate legally binding treaty on violence against women is necessary to address the key gaps in the current normative framework, lessen the backlog before the CEDAW treaty monitoring body, and create a robust individual complaint system. First, the Clinic highlighted that regional treaties on VAW have been successful in minimizing the normative gap, but those regional standards do not apply globally. (More information about this issue can be found in the Clinic’s 2015 report entitled The Inter-American Human Rights System and Violence Against Women: Norms, Compliance Mechanisms, Jurisprudence, Implementation, Lessons Learned, and Recommendations, which addresses the existing normative and implementation gap of the international legal framework on VAW.) Second, the Clinic analyzed why the overburdened caseload of the current CEDAW committee lends support to a new VAW treaty. As it stands, the CEDAW committee has a backlog and does not have adequate resources to remedy the backlog. Increasing the CEDAW caseload by adding a mandate requiring the committee to take on new cases related to VAW would lead to an inefficient and unworkable system. The Clinic recommended that the resources would be more efficiently used if devoted to a treaty body that solely is devoted to issues of VAW.
In response to the second question, the Clinic argued that a new treaty should ensure that VAW is recognized as a grave and complex human rights violation, and that the treaty should require education and training on gender-based violence, include and define terms like femicide or feminicide, prohibit the use of military jurisdiction to address cases of VAW, and it should require strong and effective domestic and international mechanisms of implementation.
On a more personal note, what I found to be the most important argument in our submission was the prohibition of the use of military jurisdiction to address cases of VAW. The report stresses the importance of ensuring that cases of VAW must be heard in civil or criminal courts and not in military courts. An act of VAW is not a military crime simply because it was committed by a member of the military. When the military courts take over these cases, women are often denied access to justice and do not have an adequate opportunity to have their case be heard. Women and girls should be able to have their “day in court,” without worrying about having the traditionally male-dominant structure of the military undermine their access to justice.
During the course of drafting this submission, it did not really dawn on me that I was advocating for a new treaty — a new UN treaty. It is only when I look back and reflect on the submission that I actually see the big picture; I still cannot believe that my work will be read by the UN Special Rapporteur, an expert in the field of violence against women, and the individual who ultimately shapes the discussion of whether a new treaty on violence against women is needed.
This whole process in drafting this submission has been such a wonderful and fulfilling experience, I have to thank the IHRC and Professor Rivera for the opportunity. On the first week of class, members of the Clinic all selected different projects to work on. My interest in issues affecting women and my involvement on the Women & Law board at Santa Clara University drew me to the Violence Against Women project.
Six weeks ago, when I began the project, I did not even know what a special rapporteur was, this person’s role or significance — in fact my first question during the team meeting was “What is a rapporteur and why does she want our opinion?” In the six weeks I have devoted to this project in preparation for the October 1st submission deadline, I not only learned about the role of the Rapporteur, but developed an understanding of how treaties work at the UN level, gained in-depth knowledge about the vastness that the topic of Violence Against Women covers, learned the value of regional treaties as stepping stones to a UN treaty, and how to articulate solutions to the gaps in the current framework by describing what a new VAW treaty would like. Yes, I actually described key provisions that a new VAW treaty would have to have in order to remedy the current shortcomings. When I think about the fact that I actually provided recommendations for a new treaty, I am thrilled at the experience.
Building upon this experience, is the chance for me to help assist Professor Rivera in the actual drafting of the treaty. Since 2014, the Everywoman Everywhere coalition has been actively advocating for a new violence against women treaty, focusing specifically on the need for a new treaty body to effectively ensure enforcement of a new VAW treaty. As described above, the current backlog and resources of the CEDAW treaty body, means that there is a need to establish a new body dedicated solely to addressing violence against women issues. Professor Rivera is Chair of the Governing Bodies Committee in the coalition, and as we transition into 2017, he will be actively working with experts from around the world to draft a new VAW treaty. He has invited me to continue assisting him throughout this process, which I am very eager for. Actually putting pen to paper and drafting parts of a treaty, a TREATY. I cannot believe that I am fortunate enough to have the opportunity in my second year of law school to be doing such impactful work.