28 Sep COVID-19 and the “Gender Crisis”: More of a Need for the Istanbul Convention, Not Less
[Sara De Vido is Associate Professor of International Law at Ca’ Foscari University of Venice, Italy; affiliate to the Manchester International Law Centre, UK.]
There is an emergency spreading around the world and its name is not COVID-19. It is rather what can be called “gender crisis”, which has been determined, on the one hand, by the increasing opposition to the adoption of norms aimed at the protection of women’s rights, and, on the other hand, by the increasing number of cases of gender-based violence against women and of violence against women’s health, as a consequence of the still ongoing pandemic. Both aspects of this crisis have a common denominator: a stereotyped view of the woman, whose consent and autonomy are not relevant in the political language of neo-conservative anti-gender parties and movements. This post is aimed at addressing this gender crisis from an international law perspective, focusing on these two interrelated issues in the European context through the lens of the Council of Europe Istanbul Convention on preventing and combating violence against women and domestic violence (Istanbul Convention).
The Istanbul Convention and the misconceptions surrounding it
The first aspect of the crisis is well represented by Poland, which has recently threatened to denounce the Istanbul Convention, adopted in 2011 and which entered into force in 2014. The Council of Europe Secretary General Marija Pejčinović Burić declared herself to be alarmed by the announcements of Poland government officials and would be open to clarify any misconceptions or misunderstandings about the Convention in a “constructive dialogue”. Poland is not alone in its attacks against the Convention though. Other governments (see, e.g. Hungary, Croatia, Slovakia, Bulgaria), often supported by religious groups, have showed reluctance towards a convention that has been accused of jeopardising “traditional family values” and are undermining the process of the ratification of the Convention by the European Union. Other non-EU countries are either waiting for amendments to their legislation to be able to enter the Convention (UK) or are reconsidering it (Turkey). The Council of Europe has issued a Q&A brochure and made announcements to address the misconceptions related to the Convention without however achieving the expected outcome. Yet, the Convention allows State parties (Article 80) to denounce the Convention at any time, without providing any reason, by a mere notification to the Secretary of the Council of Europe. If Poland withdraws from the Convention, will other States follow? Not necessarily, but it could pave the way for further protests against it.
The Istanbul Convention is the first treaty that provides a comprehensive framework for countering gender-based violence against women and domestic violence (on the Convention, see here). It is based on four pillars, namely prevention, protection, prosecution and policies, mirroring the structure of another “famous” Council of Europe Convention, the one against human trafficking of 2005. The Istanbul Convention obliges ratifying States, among other things, to adopt policies that are aimed at eradicating rooted stereotypes in society, allocate appropriate financial resources for the implementation of policies aimed at combat all forms of violence (Article 8), “promote changes in the social and cultural patterns of behaviours of women and men” (Article 12(1)), criminalise the behaviours listed in Arts 32 ff., provide for reparations (Article 30, a provision that has been object of numerous reservations), and grant protection to the victims/survivors of violence (Arts 18 ff.). It also contemplates the protection of children witnessing violence (Article 26), amplifying and specifying the protection of children’s rights provided by the UN Convention on the Rights of the Child (see here, p. 43 ff.). It is applicable both in times of peace and in times of conflict (Article 2), and, as the pandemic has showed us, in times of emergency (see the Declaration of the Committee of State parties to the Convention). The GREVIO Committee has the mandate to monitor the implementation of the Convention, and its first reports have been pivotal to appreciate the best possible ways to apply its provisions. One of the most controversial provisions of the Istanbul Convention is Article 14, which obliges State parties “to include teaching material on issues such as equality between men and women, non-stereotyped gender roles, mutual respect, non-violent conflict resolution in interpersonal relationships, gender-based violence against women and the right to personal integrity”. How this provision can undermine the integrity of “traditional families” – provided that it is possible to define them, particularly in the light of the evolutive jurisprudence of the European Court of Human Rights – is hard to say, but it was used by conservative and religious groups to instill the doubt that the Convention obliges countries to teach in school what has been called “gender ideology”. As Dianne Otto has recently argued (p. 363), “while the issue of violence against women has proved to be a remarkably productive ‘touchstone’ for countering the marginalization of women’s gendered experiences of human rights violations, its effects have been double-edged. Ironically, the issue has breathed new life into the conservative and racialized gender scripts that are deeply embedded in international law”.
The Convention is surrounded by misconceptions and misunderstandings: a close reading of its provisions shows that this legal instrument is (only, though in a very advanced way) aimed at protecting women from violence in the ratifying States and addressing for the first time in treaty law, for example, the phenomenon of witnessing violence. Far from recognising LGBT rights, the Convention includes a binary (male/female) definition of gender. The Convention would have been extremely advanced in acknowledging violence in same-sex couples, but it did not, clearly endorsing a narrow definition of gender (the best that could be agreed by States). The interpretation of the concept of domestic violence, which does not explicitly mention women (Article 3 b) – and this has been considered a limit because it does not acknowledge the gendered nature of this form of violence (in this sense, Chinkin and Nousiainen, p. 43) – might have expanded to domestic violence within same-sex couples (but also against elderly people, children, men), but only if States had been willing to do so in the phase of implementation. As Article 2 of the Convention unequivocally reads, “Parties are encouraged to apply [the] Convention to all victims of domestic violence”. Furthermore, reference to women’s rights to health and reproductive health is almost completely absent from the Convention. Article 30 (2) only refers to “serious bodily injury or impairment of health”, and access to health care is merely mentioned among the “general support services” (Article 20(2)).
Where is women’s right to reproductive health?
Hence, the disappointing outcome, and I am moving to the second aspect of this post, is that, on the one hand, the Convention endorses the ‘Western’ narrative of violence, which is mainly based on the condemnation of “the other’s’ violence” (e.g., child marriages, female genital mutilation), “while Western practices of genital surgeries on intersex babies and ‘cosmetic’ surgeries like labiaplasty and breast augmentation escape condemnation” (Otto, p. 364); on the other hand, it does not appreciate how all forms of violence affect women’s right to health and reproductive health, and also how State policies themselves might be the cause of violence (De Vido). The absence of the right to sexual and reproductive health is worrying because it fails to grasp the connection between all forms of violence and women’s health. Providing access to health services is stressed in CEDAW General Recommendation No. 35 and can inform both protective (access to “timely and comprehensive mental, sexual and reproductive health services including emergency contraception and HIV Post Exposure Prophylaxis”, para. 40) and repressive measures (access to reparations, which go beyond monetary compensation to include “the provision of legal, social and health services including sexual, reproductive and mental health for a complete recovery”, para. 46).
In this time of pandemic, we have seen an increasing number of cases of domestic violence (as reported, among others, by European Women’s Lobby), and online violence (sexist hate speech, which struggles to be captured by domestic legislation. See, in that sense, the debate in Italy), along with a less evident but persistent pattern of discrimination through the adoption of State policies which, with the declared purpose to counter the pandemic, restrict women’s access to reproductive services (see here). This is a form of what I have defined as violence against women(‘s health): it is a violation of women’s rights to health and reproductive health, a form of discrimination against women, and causes physical and psychological harm. It jeopardises women’s autonomy and stresses paternalistic patterns based on the subordination of women.
The debate surrounding the Istanbul Convention and the State’s response to the pandemic confirms the need for strong hard law and soft law instruments, combined with the support of civil society and remarkable judgments (see, in that respect, for example, Talpis, and the opinions by European Court of Human Rights Judge de Albuquerque in Valiuliene and Volodina) to challenge the patriarchal structure of societies and of international law itself (on the UN Security Council law, see here) and affirm women’s autonomy.