12.08.2021
Interactive Dialogue with the Special Rapporteur on Violence against Women
28 and 29 June 2021
47th Session of the Human Rights Council, 21 June to 15 July 2021.
ITEM 3 – Promotion and protection of all human rights, civil, political, economic, social and cultural rights, including the right to development
By: Beatrice Serra
Executive Summary
The mandate of the Special Rapporteur on violence against women, its causes and consequences, were endorsed in 1994 by the then Commission on Human Rights. As violence against women continues to destroy the lives of women and girls worldwide, the establishment of the mandate was a major benchmark within the global women’s rights movement. The year 2021 marks the 27th anniversary of the endorsement of the mandate, in which violence against women is not only condemned as a human rights violation, but it is also integrated into the UN human rights framework and its mechanism.
At the 11th and 13th meeting of the 47th session of the Human Rights Council (HRC), the Special Rapporteur on violence against women, its causes and consequences, presented a report. The report addresses rape as a grave, systematic and widespread human rights violation, a crime, and a manifestation of gender-based violence against women and girls. The report recommends a model law that States should implement in order to achieve the effective criminalization and prosecution of rape: harmonizing domestic criminal laws with international standards and jurisprudence on rape, both in peacetime and during conflict, is the main tool to combat violence against women.
Additionally, at the 11th and 13th meeting of the 47th session of the Human Rights Council, the Special Rapporteur on violence against women, its causes and consequences, held an interactive dialogue on rape as a grave, systematic and widespread human rights violation, a crime and a manifestation of gender-based violence against women and girls, and its prevention. The Special Rapporteur current holder pointed out that rape is one of the most widespread violation not reported by victims and reiterated the importance of having common definitions and legal standards to effectively protect the victims while avoiding revictimization and fighting stereotypes. Delegations expressed their support to the report, stressing the importance to sign and ratify the Istanbul Convention as well as align national laws with international standards. The majority of delegations expressed their concerns for the normative and political gaps and gender inequality which leads to a normalization of rape, revictimization of women and girls, and to impunity for perpetrators as well as the importance of including the lack of free consent in the legal definition of rape. Civil society thanks the Special Rapporteur for her report, pushing States to seek harmonizing national laws with international standards and requiring the Special Rapporteur further recommendations on effective measures to prevent rape.
Background
The UN Human Rights appointed a Special Rapporteur on violence against women, including its causes and consequences, on 4 March 1994 (resolution 1994/45). The mandate, which was recently renewed in 2019 (resolution 41/17) is the first independent human rights mechanism that exclusively focuses on violence against women: recognizing violence against women as a human rights violation and integrating it into the United Nations human rights framework and its mechanisms. The mandate aims at adopting a comprehensive and universal approach to the elimination of violence against women, its causes and consequences, including causes of violence against women relating to the civil, cultural, economic, political and social spheres.
In the first report of the mandate holder in 1995, rape was identified as a manifestation of gender-based violence against women, labelling the lack of consent as a constitutive element which should be included in the definition of rape; additionally, it expressed concerns on the status of the criminalization and prosecution of rape. In the 27 years that followed the establishment of the Special Rapporteur on violence against women, its causes and consequences, successive mandate holders have regularly addressed shortcomings in the criminalization and prosecution of rape in their reports. In this context, it was decided at the 47th session of the Human Rights Council (June 2021) to hold an Interactive Dialogue with the Special Rapporteur on violence against women, its causes and consequences, to provide States with legal guidelines and recommendations for the criminalization and prosecution of rape at the national level. The Interactive Dialogue held at the 47th session of the Human Rights Council took place on 28 and 29 of June 2021, the Council considered the report of the Special Rapporteur A/HRC/47/26 on “Rape as a grave, systematic and widespread human rights violation, a crime and a manifestation of gender-based violence against women and girls, and its prevention”.
Report of the Special Rapporteur
Report A/HRC/47/26 of the Special Rapporteur on violence against women, its causes and consequences, Dubravka Šimonović: “Rape as a grave, systematic and widespread human rights violation, a crime and a manifestation of gender-based violence against women and girls, and its prevention”.
The report takes into consideration the Special Rapporteur’s activities carried out mainly online while the world is facing the COVID-19 crisis and addresses rape as a grave, systematic and widespread human rights violation, a crime, and a manifestation of gender-based violence against women and girls; harmonizing domestic criminal laws with international standards and jurisprudence on rape, both in peacetime and during conflict, is described as the main tool to prevent such violations.
According to the international standards and legal framework, rape is a human rights violation that could amount either to torture, war crime, a crime against humanity, or genocide when the elements of the crimes are present. Despite numerous domestic laws that criminalize rape, international standards are not fully incorporated and implemented, also due to gender-based stereotypes and discrimination coming from the surrounding general context; while perpetrators enjoy impunity, rape remains one of the most widespread crimes not reported by victims.
Although civil society and women’s movements are now speaking up to challenge impunity, while many UN and regional human rights bodies are directing their effort to produce significant guidance on applicable standards on violence against women, there is no specific thematic report on rape as a human rights violation: this report (A/HRC/47/26) aims to fill the gaps in the criminalization and prosecution of rape at the national level by providing a framework for legislation on rape that States, as the actors having the primary responsibility, should guarantee and implement, both in peacetime and during conflict.
Regarding the criminalization of rape, the Special Rapporteur recommends that, in accordance with international human rights standards, national laws should criminalize rape as a gender-neutral crime covering all persons, and all types of penetration of sexual nature with any bodily part or object should be considered as rape; national laws should also criminalize marital rape. In addition, being a central and constitutive element, the lack of a free consent should be included in the definition of rape, considering force or threat of force a clear evidence of non-consent but not a constitutive element of the crime; States should set the age of consent at 15 or 16 years, according to the local context, but not below 15 years.
Regarding the prosecution of rape, the Special Rapporteur recommends that States should provide sanctions which are adequate and commensurate with the gravity of the offence, excluding fines as alternative sanctions; aggravating and mitigating circumstances should comply with international human rights standards. Additionally, to protect the person involved, the victim’s testimony, supported by a physical and psychological assessment of harm and assessed alongside existing evidence, should not require further proof, especially those involving information of a victim’s sexual history and privacy. To conclude, the crime of rape should be prosecuted ex officio, pursued without undue delay, and access to justice by the victim should never be limited.
The Special Rapporteur recognizes that international human rights law, international humanitarian law and international criminal law on rape have advanced significantly over the past few decades, but it requires all States to accelerate the harmonization of national laws with international standards, following the recommendations laid down in this report, in order to effectively criminalize and prosecute the crime of rape.
Interactive Dialogue with the Special Rapporteur
Geneva, 28 and 29 June 2021 - At the 11th and 13th meeting of the 47th session of the Human Rights Council, the Special Rapporteur on violence against women, its causes and consequences, held an interactive dialogue with stakeholders, under Item 3 of the Agenda.
Ms. Dubrovkashi Monovic, presented her thematic report highlighting states' responsibility to prevent the crime of rape, to change the prevalent rape culture of impunity for perpetrators, and stigmatization, and lack of access to justice for victims. The framework for legislation on rape contained in the report serves as a harmonization tool to align national laws with international standards, a process which has already started under the CEDAW Convention and general recommendation number 35 for 189 States Parties and under the Istanbul Convention for its 34 parties.
Ms. Dubrovkashi Monovic went on to invite all States to follow the recommendations laid down in the report and to increase their collaboration with UN agencies, independent experts, human rights mechanisms and UN intergovernmental bodies. Additionally, she recommends including 'violence against women' as a permanent agenda item of the Commission of the Status of Women (CSW) and the Crime Commission, so as to allow the Human Rights Council to allocate more time to such an important topic.
In the ensuing debate, delegations expressed their support of the report (A/HRC/47/26) and stressed the importance of prevention, criminalization, and prosecution of crimes against women through the harmonization of national law with international standards. The European Union recognized the crucial importance of combating all forms of sexual and gender-based violations, including rape, and holding perpetrators accountable while avoiding stigmatization of victims.
Netherlands on behalf of the Benelux countries, expressed its concern with Turkey’s decision to withdraw from the Istanbul Convention on Violence against Women, considering it as one of the main regional instruments to prevent and fight violence against women and girls. The group of countries invited all States to sign and accelerate the process of ratification of the Convention which has been proven to bring positive effects on the lives of women, girls, families, and the entire community.
Sweden on behalf of Denmark, Estonia, Finland, Iceland, Latvia, Lithuania, and Norway, firmly stated its will to prevent and eliminate all forms of violence against women and girls both online and offline, and to achieve gender equality globally. The group of states reiterate the importance of including the lack of consent as the basis for the legal definition of rape, asking for recommendations on how States can promote the culture of consent.
Chile on behalf of Argentina, Brazil, Colombia, Costa Rica, Guatemala, Honduras, Mexico, Paraguay, Peru, and Uruguay, expressed deep concern for the numbers of women and girls as victims of rape while denouncing the normative and political gaps as well as the inherent structural inequality of gender which leads to a normalization of rape, revictimization of women and girls, and impunity for perpetrators.
Liechtstein regretted the increasing domestic violence affecting women and proudly announced the ratification of the Istanbul Convention as its commitment to fight violence against women while inviting all States to implement adequate measure in line with international standards to combat all forms of gender-based violence, including marital rape, and rape of men and boys. Additionally, Liechtstein pointed out the importance of offering effective protection, support, and legal assistance to victims.
Costa Rica recognized the important progress made under the mandate of the Special Rapporteur and strongly believes that studying structural, normative, and political factors which give rise to impunity should be constantly studied in order to progress towards the criminalization of violence against women.
Canada condemned rape as a serious human rights violation that is to be punished in the strongest terms possible considering also how rape is often used as a weapon of war or to threaten leaders who are women and girls so as to discourage them from civic engagement, political office or working in media. The country required action to reflect on colonial power balances that have put indigenous peoples under threat, especially women, girls and diverse gender people.
Iraq pointed out that law reforms in the country are still pending, but its commitment to protecting victims, punishing criminals and eliminating a pervasive, sexist sub-culture that objectifies women remains strong.
Indonesia mentioned that the Parliament is currently working on a new bill on eradication of sexual violence based on heavier punishment for the perpetrators, especially when the victims are children, persons with disabilities and children with disabilities. The country expressed its concern on rape as a grave, systematic and widespread human rights violation used as a tool or form of authority in times of conflict, requiring the Special Rapporteur to elaborate further recommendations on that.
Libya stated that further steps are necessary to combat violence against women and called upon States to provide the country with the necessary support to find more effective means and implement measures to hold perpetrators accountable for their crimes.
Angola expressed its concern on the increasing number of cases of violence against women and girls during the COVID-19 pandemic which revealed “the pandemic within the pandemic”, thus showing that our society has not done enough to effectively fight gender-based violence. The country stated that the criminalization and eradication of rape in line with international standards will be successful only if it is followed by new concrete and effective actions able to change mentalities and behaviors as well as destroy stereotypes and gender inequalities.
Ireland addressed that States have failed to adequately protect victims, sharing the report’s statement that systematic changes are urgent. The country expressed its concerns about the criticisms and misinformation surrounding the purposes of the Istanbul Convention which poses a threat to the progress made.
Georgia expressed its concern about the Russian ongoing operation in Abkhazia which makes Georgia unable to implement international monitoring mechanisms. The country asked the Special Rapporteur how UN entities can assist member States in addressing such challenges.
Yemen expressed concerns on the situation of women in Houthi controlled areas where activists, wives, and children of opponents are kidnapped, and where rape is committed in detention camps and prison. The country called upon the HRC to ensure that human rights can be enjoyed in Yemen, especially by women.
Civil society congratulated the Special Rapporteur on her report on violence against women and rape. Some NGOs stated that harmonizing the definition of consent and rape with international standards is the key to effectively criminalizing and prosecuting the crime of rape. One NGO pointed out how the report scarcely mentions measures and recommendations to prevent rape from occurring in the first place, also considering that educating children about consent, personal integrity, and healthy relationships plays a crucial role in challenging gender stereotypes. Another NGO highlighted the question of women and pornography as a form of sexual violence, requiring the report to focus and provide recommendations on this issue, while asking States and Internet providers to create effective measures to prevent and punish forms of coercive sexual violence.
After interventions from Member States, Observer States, National Human Rights Institutions and Civil Society Organisations, Ms. Dubrovkashi Monovic made her final remarks pointing out the intersection between COVID-19 pandemic and the pandemic of gender-based violence, and how the pandemic revealed pre-existing shortcomings in laws and services. However, States need to counter pushbacks to the Istanbul Convention and more generally those against gender-based violence and women’s rights by better use of international instruments: the report can be a useful tool to produce a model law against rape based on the harmonization of national laws with international standards.
Regarding how to implement the report’s recommendations and accelerate the harmonization process, the Special Rapporteur highlighted the crucial role of regular mechanisms like UPR and CEDAW, the examination of reports, as well as the Istanbul Convention and the Maputo Protocol as spotlight initiatives that the EU and UN must play in implementing the recommendations provided; additionally, ad hoc platform mechanisms would be a way forward in respect of actions needed. To conclude, Ms. Dubrovkashi Monovic called on States for the ratification of the Istanbul Convention and CEDAW and all other international mechanism on the protection of women.
Position of Geneva International Centre for Justice
Geneva International Centre for Justice welcomes the report of the Special Rapporteur on providing a model law to effectively criminalize and prosecute rape during conflict and peace time.
GICJ recognized the development made by international human rights law and humanitarian law, and the achievements made in combating violence against women under the Special Rapporteur, but it requires further efforts to adequately protect victims. GICJ remains committed to put an end to impunity for perpetrators and calls upon the international community to take effective measures in order to combat gender stereotypes, all forms of discrimination and gender-based violence, and the sexist sub-culture that objectifies women.
As stated in the report, States have the primary responsibility to adopt and implement a legal framework that is able to protect victims and hold perpetrators accountable for such crimes. In that regard, GICJ encourages all states to ensure full compliance with their international standards in combating violence against women. Despite the criminalization of rape in many national laws, international standards are not fully incorporated and implemented, many perpetrators remain unpunished, and victims are left without legal and psychological support. It is crucial that all States sign and ratify the Istanbul Convention and other international instruments, addressing their efforts to combat violence against women, including rape.
Justice, Human rights, Geneva, geneva4justice, GICJ, Geneva International Centre For Justice
