The Istanbul Convention, Domestic Violence and Human Rights

Ronagh McQuigg

• Publisher: Routledge
• Year: 2017
• ISBN:
  9781317313052
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

The Convention on Preventing and Combating Violence against Women and Domestic Violence (also known as the Istanbul Convention) was adopted by the Committee of Ministers of the Council of Europe on 7 April 2011. The Convention entered into force on 1 August 2014 and has currently been ratified by 22 states. This Convention constitutes a crucial development as regards the movement to combat gender-based violence, as it sets new legally binding standards in this area. This book provides a detailed analysis of the Convention and its potential to make an impact in relation to the specific issue of domestic violence.

The book places the Istanbul Convention in context with regard to developments relating to domestic violence as a human rights issue. The background to the adoption of the Convention is examined, and the text of this instrument is analysed in detail. Comparative analysis is engaged in with reference to the duties that have been placed on states by other bodies such as the UN Committee on the Elimination of Discrimination against Women and the European Court of Human Rights. Comparisons are also drawn with the Inter-American Convention on the Prevention, Punishment, and Eradication of Violence against Women and with the relevant provisions of the Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa. An in-depth examination of the advantages of the adoption of the Istanbul Convention by the Council of Europe is provided along with a detailed analysis of the challenges faced by the Convention. The book concludes with a number of brief reflections in relation to the question of whether the adoption of a UN convention on violence against women may be a possible development, and the potential such an instrument holds, in the context of domestic violence.

1 Introduction

The Convention on Preventing and Combating Violence against Women and Domestic Violence (also known as the Istanbul Convention) was adopted by the Committee of Ministers of the Council of Europe on 7 April 2011. The Convention entered into force on 1 August 2014 and, at the time of writing, has been ratified by 22 states.¹ This Convention constitutes a crucial development in the movement to combat gender-based violence, as it sets new legally binding standards in this area. The aim of this book is to provide a detailed analysis of the Convention and its potential to make an impact in relation to the specific issue of domestic violence. The Convention adopts a holistic approach and covers many forms of violence against women. However, the book’s specific focus on domestic violence allows the potential of the Convention with regard to this particular issue to be examined in a sufficiently in-depth and detailed manner.

In this book, the Istanbul Convention is placed in context with respect to developments relating to domestic violence as a human rights issue. The background to the adoption of the Convention is examined, and the text of this instrument is analysed in detail. In examining the Convention’s provisions, comparative analysis is utilised with reference to the duties that have been placed on states by other bodies such as the UN Committee on the Elimination of Discrimination against Women (CEDAW Committee) and the European Court of Human Rights. Comparisons are also drawn with the Inter-American Convention on the Prevention, Punishment, and Eradication of Violence against Women (also known as the Convention of Belém do Pará) and with the relevant provisions of the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (also known as the Maputo Protocol). The monitoring mechanisms of the Istanbul Convention are discussed in detail, again with the inclusion of comparative analysis. An in-depth examination of the advantages of the adoption of the Istanbul Convention by the Council of Europe is provided, as is a detailed analysis of the challenges faced by the Convention. The book concludes with a number of broader reflections in relation to the question of whether the adoption of a UN convention on violence against women may be a possible development, and to the potential held by such an instrument in the context of domestic violence.

Domestic violence in Europe

Domestic violence is an issue that affects vast numbers of women throughout all nations of the world, including every state within the Council of Europe. The potential held by the Istanbul Convention in relation to this particular issue therefore constitutes an important indicator of the effectiveness of the Convention as a whole. Domestic violence is an ‘unseen crime’ which many victims may be too frightened or too ashamed to report. It is therefore difficult, or even impossible, to produce accurate statistics on the true prevalence of this form of violence, as the number of instances reported to the police will be much lower than the number of such instances that actually occur.² In the Explanatory Report to the Istanbul Convention it was estimated that between 12 per cent and 15 per cent of women across Europe have been in a relationship involving domestic violence after the age of 16.³ Many more women continue to suffer abuse from former partners even after the relationship ends.

One of the most reliable sources of statistics on the prevalence of domestic violence in the European context is now found in research carried out by the European Union Agency for Fundamental Rights, the report of which was published in March 2014.⁴ Although this research was carried out only in the 28 states that are members of the European Union, as opposed to all 47 states that constitute the Council of Europe, the results of the research can nevertheless be said to be indicative of levels of domestic violence across Europe as a whole. This research is particularly informative as it is based on interviews carried out with 42,000 women across the EU, who were asked about their experiences of physical, sexual and psychological violence, including incidents of domestic violence. The survey was based on a random sample of women aged 18 to 74 years in the general population of each EU member state. Interviews were conducted face-to-face by female interviewers in the homes of the interviewees. Although the research methodology bore strong resemblances to research that has been carried out in other contexts, such as the Crime Survey for England and Wales (formerly the British Crime Survey),⁵ this was the first time that a comprehensive survey of this nature had been carried out in relation to violence against women across the EU. As this research goes beyond simply examining levels of reported violence, it is likely that the statistics formulated constitute a closer approximation of the true levels of gender-based violence. The research found that just over one in five women have experienced physical and/or sexual violence from a current or former partner. However, only 14 per cent of women reported their most serious incident of such abuse to the police. The report recommended that EU member states ratify the Council of Europe’s Istanbul Convention, describing this Convention as ‘the most comprehensive regional instrument addressing violence against women’.⁶ It was also recommended that the EU itself explore the possibility of accession to this instrument.

Chapter outline

The Istanbul Convention is based upon a human rights framework. For example, Article 4(1) states: ‘Parties shall take the necessary legislative and other measures to promote and protect the right for everyone, particularly women, to live free from violence in both the public and the private sphere.’ Chapter 2 of this book will therefore place the Istanbul Convention in context as regards the analysis of domestic violence as a human rights issue which requires the attention of international and regional institutions, such as the United Nations and the Council of Europe. As domestic violence takes place between private individuals, it did not come within the ambit of the traditional interpretation of human rights law. Those who framed the earliest human rights treaties, such as the European Convention on Human Rights (ECHR), had no intention of encompassing issues such as violence in the home within the scope of such instruments. Instead, the main aim of those who formulated such treaties was to protect the individual from abuse perpetrated by the state itself and by state actors. The objective was essentially to ensure that there would be a sphere of activity in which the individual would be ‘left alone’ and with which the state would not interfere. When applied to the issue of domestic violence, such an approach is not only useless but arguably perpetuates the conditions that allow violence in the home to occur. The lack of perception of domestic violence as a human rights issue can be seen in the fact that the UN Convention on the Elimination of All Forms of Discrimination against Women (CEDAW)⁷ contains no express mention of domestic violence within its provisions.

However, there have of course been immense developments within human rights law such as the formulation of the concepts of positive obligations and state responsibility, and it is now clearly established that domestic violence constitutes a human rights issue. For example, in its General Recommendation No. 19, the CEDAW Committee interpreted CEDAW in such a manner as to encompass domestic violence within the scope of this instrument.⁸ In order to place the Istanbul Convention in context, Chapter 2 will provide an analysis of such developments.

Chapter 3 will examine the background to the adoption of the Istanbul Convention. It will begin by analysing the development of domestic violence as a policy issue within the Council of Europe. Since 2007 the European Court of Human Rights has built up a substantial body of jurisprudence on domestic violence.⁹ As this jurisprudence played an important role in the recognition of domestic violence as an issue that should be addressed by the Council of Europe, Chapter 3 will incorporate an analysis of this body of case law. Other developments on this issue within the context of the Council of Europe will also be examined. For example, in 1993 the third European Ministerial Conference on Equality between Women and Men focused on ‘Strategies for the elimination of violence against women in society: the media and other means’. These discussions resulted in the development of an Action Plan to Combat Violence against Women. Also, in 2002 the Committee of Ministers of the Council of Europe adopted a Recommendation to states on the protection of women against violence.¹⁰

Chapter 3 will then proceed to analyse the events that led directly to the drafting and adoption of the Istanbul Convention. From 2006 until 2008 the Council of Europe implemented a campaign to combat violence against women. As part of this campaign, a Task Force carried out an assessment of measures that had been adopted by states in this area. It was concluded that serious gaps remained and that there was a need to ensure that levels of support and protection were standardised across Europe. To this end, the Task Force recommended that a Convention to combat violence against women be developed by the Council of Europe. In December 2008 the Committee of Ministers of the Council of Europe established an Ad Hoc Committee on Preventing and Combating Violence against Women and Domestic Violence with the mandate of preparing a legally binding instrument on violence against women. The draft Convention was approved by the Ad Hoc Committee in December 2010, and the finalised Convention document was adopted by the Committee of Ministers on 7 April 2011.

Chapter 4 will provide a detailed analysis of the text of the Istanbul Convention itself, with a particular focus on the provisions that relate to domestic violence. The matters discussed will include a number of definitional issues, such as the fact that the Convention repeatedly separates out domestic violence from violence against women more generally (for example, the title of the instrument is framed as ‘the Convention on Preventing and Combating Violence against Women and Domestic Violence’) and the possible rationale for such an approach. The reference within the Convention to the ‘due diligence’ standard will also be discussed. The obligations placed upon states parties by the Convention with regard to the issue of domestic violence will be examined in detail, and comparisons will be made with the statements and duties that have been put forward by other bodies such as the CEDAW Committee, the UN Special Rapporteur on violence against women, its causes and consequences, the UN General Assembly and the European Court of Human Rights.

The Istanbul Convention, although ground-breaking within the context of the Council of Europe, is not the first regional instrument to address the issue of violence against women. Almost 17 years prior to the Council of Europe’s adoption of this Convention, the Inter-American Convention on the Prevention, Punishment, and Eradication of Violence against Women (also known as the Convention of Belém do Pará) was adopted by the General Assembly of the Organization of American States (OAS). Chapter 4 will therefore compare and contrast the approaches taken by the Istanbul Convention and the Convention of Belém do Pará to the specific issue of domestic violence. In addition, the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (also known as the Maputo Protocol) was adopted by the African Union in 2003 and entered into force in 2005. The provisions of this Protocol that relate to gender-based violence, including domestic violence, will also be compared to those of the Istanbul Convention.

Chapter 5 will examine the monitoring procedures of the Istanbul Convention and provide an analysis of the potential held by these mechanisms. Under Article 66(1) of the Convention, the implementation of this instrument is to be monitored by a Group of Experts on Action against Violence against Women and Domestic Violence, known as ‘GREVIO’. The members of GREVIO are elected by a body known as ‘the Committee of the Parties’ which, under Article 67(1), is to be composed of representatives of the states that are parties to the Convention. The main monitoring mechanism is a reporting procedure, with an inquiry procedure also being established. The Committee of the Parties met for the first time on 4 May 2015, and the first meeting of GREVIO took place on 21–23 September 2015.

In examining the monitoring mechanisms of the Istanbul Convention, the book will again engage in comparative analysis. For example, the Optional Protocol to CEDAW encompasses a communications mechanism, under which individuals may submit complaints concerning violations of CEDAW to the CEDAW Committee. Likewise, an individual complaints mechanism whereby petitions may be lodged with the Inter-American Commission on Human Rights is encompassed by the Convention of Belém do Pará. Such a mechanism is not included in the Istanbul Convention, and the question of whether the omission of a communications mechan...