The CAT, 1998–2007

The CAT was established in 1987 to monitor the Convention against Torture.Footnote ⁸ This treaty, ratified by 169 states, focuses exclusively on torture/CIDT and is one of the rare treaties to contain a definition of torture. At the time of drafting, state parties clearly envisioned the convention relating to state violence only (Burgers and Danelius Reference Burgers and Danelius1988, 119–20). Torture is defined as “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.”Footnote ⁹ In her influential 1994 article, Rhonda Copelon (Reference Copelon1994) argued that each of these elements of torture is found in domestic violence. In particular, the purpose requirement was met since violence against women, according to General Recommendation no. 19 published by the Committee on the Elimination of Discrimination against Women (CEDAW) in 1992, is a form of discrimination (CEDAW 1992). With respect to state involvement, she insisted that “the premise for treating gender-based domestic violence as a violation of human rights is that government-conferred impunity encourages this form of violence” (351).

These arguments would be echoed a decade later in discussions at the CAT about the inclusion of domestic violence in the committee’s mandate. This inclusion occurred in two stages: between 1998 and 2004, domestic violence appeared as an issue for discussion in the concluding observations, and, between 2005 and 2007, the interpretation of domestic violence was solidified as falling within the CAT’s mandate under certain conditions, according to General Comment no. 2, which provides that states bear responsibility where officials have knowledge or reasonable ground to believe violence is being committed by private actors, including domestic violence.Footnote ¹⁰ Both stages are largely the work of Felice Gaer, the second woman to serve as an expert on the CAT from 2000 to 2014.

For a decade before being appointed to the CAT, Gaer, a US citizen, was involved on behalf of NGOs and as an appointee of the United States in rights advocacy at the UN. She was one of the initiators of CEDAW’s General Recommendation no. 19 establishing that discrimination against women includes gender-based violence. When she joined the CAT, she was aware that the committee had been criticized for lacking a gender perspective. A 1998 report by the UN secretary general had noted that the committee’s concluding observations never made reference to the situation of women (UN Secretary General 1998, para. 50). Gaer had originally planned to “follow the pattern of American senators” whereby a newcomer demonstrates that she is a respectful member of the body before attempting to make sweeping changes. But, as she recounted, that approach “lasted all of two mornings.” Faced with the insistence by the chairman of the CAT that the topic was not within the committee’s mandate, Gaer insisted on asking questions about gender-based violence, consciously “establishing a record … in the review of countries.”Footnote ¹¹

To this end, she recalls obtaining factual information about the situation in each country from NGOs present at the UN in order to ask well-informed questions to state representatives. In addition, despite initial open confrontations with the chairman, Gaer decided to proceed gradually, first establishing that sexual violence in prisons was part of the CAT’s mandate—a point that was difficult for states and experts to object to—before moving on to sexual and other violence in the home. Gaer found support in one of the other experts in the CAT, Andreas Mavrommatis, a former judge from Cyprus (all of the other experts were men in the first years of her mandate). In fact, according to the records, in most of the meetings with state representatives at which domestic violence was discussed until 2002, it was Mavrommatis who asked the questions, while Gaer asked about violence against women detainees. Gaer credits Mavrommatis’s experience at the HRC, where gender issues had been mainstreamed, for sensitizing him to the issue. She also surmises that domestic violence gave Mavrommatis an additional issue to discuss with states. She explained that, because the committee must afford equal treatment to all countries, it cannot be seen to hold shorter meetings with some. As a result, she sometimes noticed that “the most obscure issues would fill the time.” Alternatively, in her recollection, experts occasionally tried to “throw softballs” to state representatives.Footnote ¹² At a time when many states were enacting domestic violence legislation, asking a question about that subject might have fulfilled such a goal.

Indeed, in the early years, some states even discussed domestic violence of their own initiative during their periodic review before the CAT. In 1997, Argentina’s periodic report pointed to its ratification of the Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women (Belém do Pará Convention), a convention that emphasizes violence in the private sphere, as evidence of positive developments in the country with respect to the eradication of torture (CAT 1997, para. 11).Footnote ¹³ Similarly, in 1999, at the first meeting of the Venezuelan delegation with the CAT (1999, para. 7), a state representative drew the committee’s attention to the fact that Venezuela had enacted domestic violence legislation. As noted above, NGO shadow reports submitted in those years are not accessible, and it is possible that NGOs also raised this issue in addition to the state. However, this seems unlikely as the concluding observations issued by the CAT in each case retain the states’ positive framing of the issue as demonstrating the state’s progress.Footnote ¹⁴ It is plausible that, by presenting recent enactments of legislation and accession to treaties addressing domestic violence as evidence of their progress in combating torture, these states attempted to deflect attention away from failures to comply with the prohibition of torture/CIDT in the traditional contexts of criminal justice or repression by the state.

In addition, some feminist state officials occasionally “encouraged,” in Gaer’s words, discussions of violence against women, probably in the hope of subsequently invoking the CAT’s condemnation domestically. This is not to imply that states generally welcomed the inclusion of domestic violence in the CAT’s mandate. Gaer recalls state resistance, expressed through comments such as “that question belongs in CEDAW.” Moreover, she and another expert later appointed to the CAT recall resistance from male experts on the CAT until the mid-2000s.Footnote ¹⁵

How, then, did domestic violence come to routinely appear in the CAT’s concluding observations by 2004? In addition to Gaer’s and Mavrommatis’s regular questioning of state delegations, the committee’s Secretariat, composed of lawyers employed by the UN, began to include domestic violence among the list of issues that it sent to states in preparation for the their upcoming periodic reviews, starting in 2003. The Secretariat also occasionally assisted committee members in drafting concluding observations and, when doing so, echoed the discussions of domestic violence at the committee’s sessions with states.Footnote ¹⁶ Around the same time, consolidated working methods were adopted by the UN treaty bodies, including a format for each issue discussed of one paragraph of concerns followed by one paragraph of recommendations. The standardization of the concluding observations’ format meant that the issue of domestic violence began to appear more regularly and took on a more legal shape—not simply an area of concern but one in which the committee issued recommendations, giving more precise meaning to state obligations.

A few years later, when arguing for the explicit inclusion in General Comment no. 2 of domestic violence, Gaer would insist that the general comment was simply consolidating years of committee practice in concluding observations (CAT 2008b, para. 6).Footnote ¹⁷ Appointed as the committee’s rapporteur on gender in 2000, she consulted with leading specialists on gender-based violence and surveyed the work of the HRC, CEDAW, and other international bodies for inspiration about a concrete plan of action. One of the specialists she consulted was Copelon, who urged Gaer to draft a general comment on gender for the committee’s adoption and to continue raising gender issues in periodic reviews in the meantime. In order to assist Gaer, Copelon and her students at the CUNY Clinic reviewed the CAT’s concluding observations and drew a chart of the gender issues discussed in them, producing a draft general comment on the basis of this information.

At the same time, in reaction to US anti-terrorism practices in the aftermath of 9/11, Spanish CAT member Fernando Marino Menendez prepared his own draft general comment, insisting on the absolute character of the prohibition of torture. Gaer and the CUNY Clinic’s staff surmised that Marino Menendez’s draft would be given precedence and that, due to a lack of time and resources, it would not be possible to publish a general comment on gender in the near future. They therefore decided to integrate gender issues in his draft. Copelon and the CUNY Clinic drafted an alternative, consolidated draft, of which the revised objective was to elaborate on the nature of states’ obligations under Article 2 of the Convention against Torture, which states the principles of the prohibition of torture. Gaer brought this draft before the committee in late 2005, and it was discussed in 2006 and Reference Gaer2007, by which time Mavrommatis had been elected chair.Footnote ¹⁸

The records of meetings show that, even by then, not all CAT members saw domestic violence as fitting squarely within the CAT’s mandate: Chinese expert Wang Xuexian, arguing against recognizing a state obligation to compensate CIDT, pointed out that “[t]here was no precise definition of ill-treatment, and the term could cover virtually anything, domestic violence for example; how could a State possibly be bound to investigate every minor violent incident arising between individuals and compensate every victim?” (CAT 2008a, para. 23). Nevertheless, by 2006, there was little resistance among the CAT experts. A revised draft was circulated for comment by states, NGOs, UN agencies, and national human rights organizations (Gaer Reference Gaer2007, 189).Footnote ¹⁹ A few states, among them Switzerland and Poland, expressed concerned that responsibility would be imposed too easily on states for acts of domestic violence beyond their control, a concern that also pervades Xuexian’s comment quoted earlier. Yet other states praised the committee for discussing domestic violence, as did Amnesty International and Copelon, who addressed the committee in November 2007. The paragraph in which domestic violence is mentioned was carefully reworded by the committee so as to clarify that state responsibility is conditioned on state actors knowing or having reasonable grounds to believe that the violence is being committed.Footnote ²⁰

The HRC, 1999–2002

The HRC was established in 1976 to monitor implementation of the International Covenant on Civil and Political Rights (ICCPR), the principal UN treaty protecting the rights traditionally viewed as core human rights.Footnote ²¹ The ICCPR provides in Article 7 that “[n]o one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.” The categorization of domestic violence as torture/CIDT did not require profound changes before the HRC. The ICCPR does not define torture or CIDT, and the HRC has refrained from articulating a clear basis for distinguishing between them (Rodley Reference Rodley2002, 482). In 1982, the HRC’s General Comment no. 7 clarified that states are responsible for the ultra vires actions of government officials.Footnote ²² This general comment was replaced in 1992 by General Comment no. 20, which indicates that states bear responsibility under Article 7 when the acts are inflicted by persons acting in their private capacity.Footnote ²³ The HRC clarified in General Comment no. 31 in 2004 that states bear responsibility for failing to exercise due diligence in preventing and addressing human rights abuses committed by private persons.Footnote ²⁴ Although General Comment no. 31 is not gender specific, it states that it should be read together with General Comments no. 18 and 28 concerning non-discrimination, the latter of which, adopted in 2000, states that “[to] assess compliance with article 7 of the Covenant … the Committee needs to be provided information on national laws and practice with regard to domestic and other types of violence against women, including rape.”Footnote ²⁵

Since 1993, domestic violence had been discussed in the HRC’s concluding observations in paragraphs concerning women’s rights, typically focused on equality. Until 1998, the HRC’s concluding observations were not organized by article. After the observations became more systematically organized, they began in 1999 to discuss domestic violence and the broader category of violence against women in relation to torture or CIDT. By 2002, the categorization of domestic violence as an issue related to Article 7 of the ICCPR had become routine. In addition, the HRC appears to have set a broader scope of state responsibility than the CAT since it does not require actual knowledge on the part of the state authorities that domestic violence is being committed if they failed to enact measures of prevention such as legislation (Edwards Reference Edwards2006, 374).

The HRC’s long-standing recognition of state responsibility for the acts of private actors undoubtedly offered a favorable context for the recognition of domestic violence as torture/CIDT. So did calls to treaty bodies from other UN agencies and conferences to treaty bodies to give greater attention to gender issues and to violence against women (UN Secretary General 1998; Evatt Reference Evatt2002, 4–5). Nevertheless, the link between domestic violence and torture/CIDT was not inevitable. In lists of questions sent to states in preparation for their periodic review in the 1990s, domestic violence appeared in connection with Articles 3 (equality between men and women), 23 (equality between men and women in marriage), and 26 (equality before the law) of the ICCPR, where it could have remained.

Yet, in 1999, a linkage of domestic violence to Article 7 was made in the concluding observations to Romania and Morocco, and this link has been maintained since that time. At the meetings with state delegations preceding those concluding observations, the Chilean jurist Cecilia Medina Quiroga; Elizabeth Evatt, former chief justice of the Family Court of Australia, who had chaired CEDAW before joining the HRC; and the late P. N. Bhagwati, former chief justice of India, who was known for his progressive views, prodded states about domestic violence, without mentioning Article 7. In the concluding observations prepared by the secretariat of the committee together with these experts, a reference to Article 7 was added to the discussion of domestic violence. Then, in 2000, questions about domestic violence, linked to Article 7, began to appear in the lists of issues sent by the Secretariat to states. Furthermore, Medina Quiroga, who was elected chair of the HRC in 1999, drafted General Comment no. 28, which was devoted to the equality of rights between men and women, in which states are requested to provide information about domestic violence in order to assist the committee’s monitoring of their Article 7 obligations (Evatt Reference Evatt2002).Footnote ²⁶ As with the CAT, the norm change was institutionalized through a feminist committee member’s activism and the Secretariat drafting increasingly standardized documents.

However, if the pattern of norm change is similar to that of the CAT, the shorter time frame and the less stringent conditions for recognizing state responsibility are noteworthy. What can explain these differences? Contrary to Gaer’s experience with the CAT, feminist HRC members encountered no resistance from other committee members, as is clear from the records of the sessions at which the relevant articles of General Comment no. 28 were adopted without disagreement. This lack of resistance can be explained, first, by the composition of the committee. Elizabeth Evatt (Reference Evatt2002, 5) credits the 1994 elections to the eighteen-member committee of “five new progressive minded members” for helping integrate women’s concerns. The fact that, unlike the CAT, the HRC is not specialized in torture/CIDT but, rather, mandated to address a broad range of issues including equality, explains the appointment of experts specializing in women’s rights. The formal inclusion of gender equality in the committee’s mandate, and of women’s rights experts among the personnel, made the committee’s discussion of gender issues uncontroversial.Footnote ²⁷

Moreover, the committee’s practice of treating Article 7 violations holistically, without distinguishing between torture and CIDT, without precisely defining either category and without assigning torture a special stigma, facilitated the introduction of new forms of violence in the purview of that article. As recounted by a member of the HRC at the time, “[n]obody asked the question, are we talking about torture? Are we talking about cruel punishment or inhumane treatment? Or whatever it happens to be because nobody thought it was relevant and we didn’t have to be specific. We were saying to states you better address this question, otherwise you’re violating article 7. We don’t have to tell you whether it’s torture or not.”Footnote ²⁸ In addition, for this former member of the HRC, the condemnation of domestic violence had broad resonance among states and did not trigger claims of cultural relativism on their part. Finally, it should be noted that states were not given an opportunity to comment on General Comment no. 28, which was drafted at a time when general comments were issued by committees without the extensive public deliberation that accompanies the process in more recent years.

The IACHR and IACtHR, 1996–2011

The American Convention on Human Rights (American Convention), which entered into force in 1978, assigns the monitoring of states’ compliance with the convention to the IACHR and IACtHR.Footnote ²⁹ Although the IACHR sends the court only fourteen cases per year on average, the IACtHR has developed a progressive and distinctive jurisprudence (Antkowiak and Gonza Reference Antkowiak and Gonza2017, 10). In particular, the IACtHR’s first judgment on the merits, Velásquez-Rodriguez, is a landmark case in the establishment of positive obligations on states.Footnote ³⁰ The inter-American system thus provided a favorable doctrinal terrain for the recognition of state responsibility for domestic violence.

Latin American women’s movements have also forcefully pushed for the recognition of private violence against women as a human rights violation. In fact, Copelon (Reference Copelon2007, 232–33) traced her interest in framing domestic violence as torture to a workshop of the Latin American and Caribbean Feminist Meeting in 1994, where Latin American feminists familiar with the repressive practices under dictatorships saw parallels with domestic violence. Hence, as early as 1994, American states adopted the Belém do Pará Convention, which was the first treaty to specifically establish that private violence against women constitutes a violation of human rights. Article 4 of the Belém do Pará Convention recognizes women’s right to physical, mental, and moral integrity and to be free from torture.

Moreover, the definition of torture in the inter-American system is very broad. Because Article 5 of the American Convention, prohibiting torture and ill-treatment, does not define these terms, the IACtHR has often referred to the 1985 Inter-American Convention to Prevent and Punish Torture (American Torture Convention), which defines torture in Article 2 as “any act intentionally performed whereby physical or mental pain or suffering is inflicted on a person for purposes of criminal investigation, as a means of intimidation, as personal punishment, as a preventive measure, as a penalty, or for any other purpose.Footnote ³¹ Torture shall also be understood to be the use of methods upon a person intended to obliterate the personality of the victim or to diminish his physical or mental capacities, even if they do not cause physical pain or mental anguish” (Antkowiak and Gonza Reference Antkowiak and Gonza2017, 108–10). While this definition does not require state involvement, Article 3 of the American Torture Convention limits the crime of torture to public servants or employees or people acting at the instigation of such individuals.

The IACtHR and IACHR established state responsibility for failing to prevent and/or investigate domestic violence in a few rulings between 2000 and 2011. These landmark cases are the result of strenuous activism on the part of coalitions of victims of domestic violence, grassroots organizations, and NGOs from North and South America who were well versed in international law. In 1996, the Center for Justice and International Law (CEJIL), the Latin American and Caribbean Committee for the Defense of Women’s Rights (CLADEM), and the grassroots União de Mulheres de São Paulo brought a case against Brazil on behalf of the family of Márcia Leopoldi who had been assassinated by her ex-boyfriend. According to Cecília MacDowell Santos (Reference MacDowell Santos2018, 203–5), CEJIL, a regional organization and repeat player within the inter-American system, saw the case as an opportunity to expand its activities to women’s rights and to set a precedent that would allow it to bring pressure on members of the Organization of American States to respect those rights. CLADEM, a regional network of feminist legal experts, saw in the case an opportunity to test the application of the Belém do Pará Convention while pressuring the Brazilian state to set up a domestic violence policy. The case did not produce any ruling, however, as Leopoldi’s ex-boyfriend was arrested, and the IACHR, CLADEM, and CEJIL considered the case resolved (205).

In 1998, CEJIL, in search of further strategic cases on violence against women, contacted Maria da Penha, a Brazilian pharmacist whose husband had attempted to murder her, leaving her paraplegic (MacDowell Santos Reference MacDowell Santos2018, 207). CLADEM, CEJIL, and da Penha petitioned the IACHR, invoking a violation of Article 7 of the Belém do Pará Convention, which sets out the state’s due diligence obligations, in relation to the subparagraphs of Article 4 that protect women’s rights to physical and mental integrity as well as to be free from torture. The IACHR held Brazil responsible for these violations, linking for the first time in the inter-American system domestic violence with torture/CIDT.Footnote ³²

The ruling in Maria da Penha v. Brazil made this link within the context of the Belém do Pará Convention, which explicitly recognized domestic violence as a human rights violation. A decade later, in 2009, the IACtHR held Mexico responsible, under, inter alia, Article 5(2) of the American Convention prohibiting torture and CIDT, for failing to prevent and properly investigate the abuse and murder of eight girls whose bodies were found in a cotton field near Ciudad Juarez, in a case commonly known as Cotton Field.Footnote ³³ However, it did not expressly classify the abuses as torture, an omission that Medina Quiroga, who was by then a judge at the court, explained as the possible result of a mistaken belief by her colleagues “that a State could not be found responsible for an act of torture if there was no evidence that it had been perpetrated by State agents or that it had been carried out when a public servant or employee.”Footnote ³⁴

The petition had been filed in 2002 by Sonia Torres Hernández, Alfredo Limas Hernández, and their colleagues at the Red Ciudadana de No Violencia y por la Dignidad Humana (Red). Torres Hernández had fifteen years of experience organizing in Ciudad Juarez and attending to women’s needs. Profoundly shocked by the discovery of the bodies, she and members of other grassroots organizations in Ciudad Juarez formed the Red.Footnote ³⁵ Disappointed with the response of the federal government, the Red considered turning to the inter-American system, with which it had no experience. Before doing so, the Red members launched a broad public consultation to ensure that they had the community’s support. They also approached the victims’ mothers, took their testimonies, and worked for years to help them in their struggle for justice. The petition lingered in the IACHR for three years before being declared admissible in 2005, with the mothers insisting, even after the government had made a settlement offer, on pursuing it before the court.Footnote ³⁶

The IACHR (which brings cases to the court) had not invoked Article 5(2) of the American Convention in relation to the victims, only in relation to their next of kin, to account for their suffering as a result of the murders. It was Torres Hernández and Limas Hernández who added the claim of a violation of the murdered women’s right to humane treatment, explaining in their brief that this was important in order to clarify that the state was responsible not just for the killing but also from the moment the women were deprived of their liberty. Limas Hernández saw the addition of this claim as the Red’s central contribution to the legal arguments. He explained that the violation of the right to humane treatment appeared to his companions and himself as the best way to reflect the broad extent of the violations, including captivity and sexual violence, and to express the elements of class, gender, and age in the violence: “The right to integrity, it was not only having lost your life, but everything that had happened and that had to do with being girls and being poor.”Footnote ³⁷ In addition, for Torres Hernández, it was only natural to argue torture, given the horrible marks on the bodies of the victims.Footnote ³⁸

By the time the case reached the court, the Red had been joined by CLADEM and the National Association of Democratic Lawyers (ANAD). The grassroots organizations that had initiated the case succeeded in defeating ANAD and CLADEM’s persistent attempts to take over legal representation and were able to do so thanks to the legal advice they received from experts in the inter-American system—in particular, Ariel Dulitsky, who was the former co-director of CEJIL, among other activities. Despite conflicts over control, the various organizations and the mothers had overlapping objectives: having the mothers’ version of the facts acknowledged, shedding light on the failures of the local and federal government, and pressuring the state to properly investigate the incident and repair the damage that had been done.Footnote ³⁹ The case drew much international interest, and thirteen amicus briefs were submitted by international advocacy groups. Copelon testified at the hearing as an expert witness, explaining to the court the specificities of the violence against the women and how a gender perspective can be integrated in states’ due diligence obligations.

To support its reasoning in relation to Article 5(2) of the American Convention prohibiting inhumane treatment, the court referred to the Belém do Pará Convention, the ruling in Maria da Penha v. Brazil, General Recommendation no. 19 of the CEDAW, and other international documents providing a state obligation to prevent and address violence against women by private actors. It also referred to its own case law on the obligation to conduct effective investigations.Footnote ⁴⁰ It further found that Mexico had violated its obligation not to discriminate when fulfilling its due diligence obligations, referring to the ECtHR’s ruling in Opuz v. Turkey.Footnote ⁴¹

Two years later, in Jessica Lenahan (Gonzales) v. United States, the IACHR found the United States responsible for failing to prevent the murder of the petitioner’s three daughters by her ex-husband.Footnote ⁴² The case was led by Caroline Bettinger-López, who was at the American Civil Liberties Union and later at the Columbia Law School Human Rights Clinic. Like in Cotton Field, the case reached the inter-American system thanks to the insistence of the mother of the victims, following a loss before the Supreme Court of the United States. Once the petition was filed, the IACHR demonstrated enthusiasm for an opportunity to hold the United States accountable, pushing the case along swiftly.Footnote ⁴³ However, contrary to the briefs submitted by the petitioner and the third-party interveners, including Copelon (whom Bettinger-López describes as a “mentor”), the IACHR did not find a violation of the right to humane treatment, focusing instead on the rights to life and equality. For the petitioners, however, the principal objectives were met: holding the United States to international standards while strengthening the international jurisprudence on states’ positive obligations in the face of domestic violence.Footnote ⁴⁴

The ECtHR, 2009–13

With over twenty-one thousand judgments concerning a broad range of civil and political rights, the ECtHR’s case law enjoys authority well beyond the forty-seven states that are party to the European Convention on Human Rights (ECHR).Footnote ⁴⁵ The court has generally produced expansive interpretations of rights through an evolutive approach to interpretation (Sjöholm Reference Sjöholm2017, 134). In addition, as part of its bid to interpret the ECHR so as to make rights effective, the ECtHR has recognized positive obligations since the 1970s, an approach that has brought with it openness to dealing with violence by private parties (Yildiz Reference Yildiz2016, 8; in reference to Krahenmann Reference Krahenmann2012, 3). While the ECHR defines neither torture nor ill-treatment, which are both prohibited in Article 3, the two have been distinguished in the European human rights jurisprudence since the 1960s—ill-treatment being defined as “at least such treatment as deliberately causes severe suffering, mental or physical” and torture described as an aggravated form of ill-treatment, committed for a specific purpose.Footnote ⁴⁶ In any event, for Article 3 to be applicable, the ill-treatment must reach a minimum level of severity, of which the assessment depends on the circumstances of the case.Footnote ⁴⁷

Two principal cases, Opuz v Turkey in 2009 and Valiuliené v. Lithuania in 2013, established that states can be held responsible under Article 3 of the ECHR for failing to prevent or address domestic violence against women.Footnote ⁴⁸ In Opuz, Turkey was held responsible under Article 2, which protects the right to life, in relation to the murder of Nahide Opuz’s mother, and Article 3 jointly with Article 14, which prohibits discrimination for failing to protect the applicant and her mother from repeated assaults from their spouses. Yet, after Opuz, the court continued to consider responsibility for domestic violence under Article 8, which protects family life and privacy, opening the possibility that the Article 3 holding in Opuz was linked to the particularly horrific nature of the violence. In Valiuliené, however, the court insisted that domestic violence be addressed under Article 3 and not Article 8 as suggested by the respondent state. Lithuania was held responsible for failing to diligently prosecute the applicant’s former partner who had beaten her on five occasions. The court rejected the state’s contention that the case should be distinguished from Opuz as Loreta Valiuliené, an educated woman, was not in a situation of special vulnerability, following the court’s jurisprudence that, when assessing states’ positive obligations under Article 3, “children and other vulnerable individuals” were particularly entitled to state protection. While the court was “unable to fully share the applicant’s view that she, as a woman, by default fell into the category of vulnerable persons,” it held that “the ill-treatment of the applicant, which on five occasions caused her physical injuries, combined with her feelings of fear and helplessness, was sufficiently serious to reach the level of severity under of Article 3 of the Convention.”Footnote ⁴⁹ Since then, the dozen or so decisions concerning domestic violence have analyzed states’ obligations under Article 3.

As at the HRC, feminist advocacy before the ECtHR was built on a long-standing recognition of positive obligations in relation to the article prohibiting torture. Moreover, similarly to the “encouraging” state officials occasionally appearing before the CAT, the norm change was the result of partnerships between norm entrepreneurs and advocates seeking international condemnations of the state in order to mobilize such condemnations locally. Yet, unlike the almost imperceptible shift in the HRC’s documents from articles on equality to the article on torture, the change before the ECtHR occurred through judicial rulings and was therefore highly visible, triggering state resistance as well as the resistance of some judges. This change also occurred against the background of the court attempting to sail its well-known, uneasy course between protecting rights and avoiding state criticism that it was infringing on individual state sovereignty. As a result, the inclusion of domestic violence in the purview of Article 3 did not go as far as some proponents wished. In a concurring opinion in Valiuliené, Judge Pinto de Albuquerque lamented that the majority applied Article 3 based on a factual assessment of the severity of the violence suffered by the applicant, when, in his view, given “the factual inequalities between women and men and the way they impact on women’s lives … it is self-evident that the very act of domestic violence has an inherent humiliating and debasing character for the victim.”Footnote ⁵⁰

The applicants in Opuz and Valiuliené were represented by local human rights lawyers who not only sought justice for their clients but also aimed to pressure their countries to combat domestic violence. “I want to see an end to violence against women and I want the state, the judiciary and the police to take it seriously,” Turkish lawyer Mesut Bestas was reported as saying on behalf of his client Nahide Opuz (quoted in Seibert Reference Seibert2009). In fact, the very filing of the claim before the ECtHR created pressure on the Turkish government, which had begun negotiating entry into the European Union in 2005, and the country struggled to preserve a positive international image when a disproportionate number of ECtHR rulings pronounced it in violation of the ECHR. The filing led a Turkish Ministry of Justice official to pressure the local prosecution service to resume the proceedings against the applicant’s husband.Footnote ⁵¹

Similarly, Jurate Guzeviciute, the main lawyer working on the Valiuliené case on behalf of the Lithuanian Human Rights Monitoring Institute (HRMI), reached out to the applicant after hearing about her case in the media, in a bid to use the ECtHR case to highlight the national authorities’ lack of implementation of recent domestic violence legislation. Once the HRMI took over the case, the complaint was amended to include an allegation of the violation of Article 3 of the ECHR, which Guzeviciute saw as making a stronger statement than other articles about the severity of the Lithuanian government’s failure to act. The lawyers at HRMI were also inspired by the court itself, which in communicating the case to the respondent state had asked it to address the possibility that the applicant’s treatment violated Article 3.Footnote ⁵²

In Opuz, the claims were strengthened by the submission of a third-party brief by Interights, a London-based human rights organization, represented by Andrea Coomber. The case was brought to Coomber’s attention by the ECtHR Registry (the body providing legal and administrative support to the court), which pointed out to her that the case raised important issues and highlighted the parts of the claim that could benefit from further argumentation.Footnote ⁵³ Interights intervened in the case “to show what the obligations of the state were when it came to domestic violence” (Coomber Reference Coomber2018). Coomber and her colleagues hoped to have domestic violence categorized as an Article 3 violation, a framing she believed would emphasize the gravity of the practice.Footnote ⁵⁴ However, in Interights’s written and oral submissions, the primary lens for analyzing the case was discrimination. Article 14 of the ECHR, which prohibits discrimination, can be invoked only in combination with another article of the convention.Footnote ⁵⁵ Article 3, which prohibits torture/CIDT, provided such a “hook” with respect to the applicant’s treatment. The Interights’s brief reviewed recent developments in international law—in particular, the ruling in Maria da Penha v. Brazil and CEDAW’s publications—to support its contention that the ECtHR should adopt a standard of due diligence requiring swift action by states in the face of domestic violence.

The court invited Interights to address it at the oral hearing, a rare occurrence at the time. Coomber reports finding a sympathetic ear in the female Swedish judge. At the hearing, she extensively discussed the jurisprudence of the inter-American system and other human rights bodies linking domestic violence and discrimination. In doing so, she aimed to suggest that the court was at risk of losing its status as a leading human rights body. Noting that the panel was not staffed by particularly progressive judges, she credits this appeal to the court’s standing, as well as the “extreme fact pattern” of the case, for the outcome—a unanimous finding that Articles 2, 3, and 14 of the ECHR had been violated.Footnote ⁵⁶ Whether or not the court was in fact concerned with its standing, by invoking comparative human rights jurisprudence, Coomber offered the court sources with which to buttress the legitimacy of a favorable ruling, whether legally (Seibert-Fohr Reference Seibert-Fohr2015) or morally (McCrudden Reference McCrudden, Örücü and Nelken2007, 376).

In Opuz and Valiuliené, the claimants and court also had a strong and clear doctrinal basis in the ECtHR’s jurisprudence itself: between 1998 and 2002, children’s rights advocates from the United Kingdom (UK) had succeeded in obtaining ECtHR rulings that the state was responsible under Article 3 for failure to protect children from violence at home. This jurisprudence was inaugurated with A. v. United Kingdom, in which the court ruled that Article 3 had been violated in a case of caning, as English law did not provide sufficient protection to children since the defense of “reasonable punishment” was available to the claimant’s stepfather against the charge of assault.Footnote ⁵⁷ The case was brought by several renowned English children’s rights advocates, including Allan Levy, and, in the arguments, both the now-defunct European Commission on Human Rights and the court relied on the Convention on the Rights of the Child and the pronouncements of the Committee on the Rights of the Child (CRC) to find the UK in violation of Article 3 of the ECHR.Footnote ⁵⁸ Before the court, the UK government conceded that Article 3 had been violated, and it “asked the Court to confine itself to considering the facts of the case without making any general statement about the corporal punishment of children.”Footnote ⁵⁹ It seems that, in conceding the Article 3 violation, the UK government attempted to avoid a broader ruling that would have outlawed corporal punishment of children entirely. Indeed, after the CRC had voiced concerns about corporal punishment in the UK in 1995, some individuals in the British media expressed worry about parents losing the “right to smack” their children. After A. v. United Kingdom, the government reassured the public that it had no intention to abolish corporal punishment (Foster and Ginell 1999, 190).

A. v. United Kingdom can therefore be seen as a compromise. The court ruled that states could be responsible under Article 3 for failing to protect children from corporal punishment, but its ruling was dependent on the severity of the harm suffered by the child in the particular circumstances, falling short of a categorical condemnation of corporal punishment (Foster and Ginell 1999, 190). The same approach of conditioning the applicability of Article 3 on the severity of the treatment suffered by the applicant in the case was followed in Z. and Others v. United Kingdom in 2001 and in E. and Others v. United Kingdom in 2002, cases concerning severe neglect of children by their parents and sexual and emotional abuse of children by their stepfather, respectively.Footnote ⁶⁰ A., Z., and E. would all serve as precedent in Opuz, Valiuliené, and their progeny, where they were invariably referenced.

Where did states stand in Opuz and Valiuliené? The Turkish government in Opuz did not argue that Article 3 was inapplicable to the case, arguing instead that the applicant and her mother’s withdrawal of their complaints to the police had prevented authorities from pursuing proceedings.Footnote ⁶¹ In Valiuliené, in contrast, Lithuania conceded that it had violated the right to privacy under Article 8, insisting in its written submissions that the violence did not reach the level of severity required for Article 3 and, generally, that domestic violence cases could be litigated under other articles of the ECHR. This concession offered the court an easy way to rule in the applicant’s favor, especially since, once an article of the convention has been found to be violated, the court typically declares it unnecessary to examine additional articles. Nevertheless, the court chose to categorize the acts as an Article 3 violation as argued by the plaintiff.

Actors

As predicted by the norm life cycle model, norm entrepreneurs in each institution, who were committed to promoting awareness of the gravity of domestic violence and pressuring states to act against it, consciously strove to frame it as falling in the category of torture/CIDT. These norm entrepreneurs could be legal experts and judges (Gaer, Evatt, Medina, Pinto de Albuquerque) or civil society activists (Copelon, Coomber). Copelon, in particular, was a central player not only in calling for the norm change from an academic platform but also in acting before the CAT and the inter-American institutions and advising other activists. Norm entrepreneurs partnered with each other, with feminist and other human rights activists focused on mobilizing international rulings for local purposes, and with sympathizers with overlapping interests (such as Mavrommatis). In line with the literature pointing to states’ strategic, superficial commitment to human rights norms (Risse, Ropp, and Sikkink Reference Risse, Ropp and Sikkink1999; Hacker Reference Hacker2015), states occasionally acquiesced or even actively contributed to the norm change out of short-term interest, such as Argentina and Venezuela offering information on domestic violence before the CAT or the UK conceding to the applicability of Article 3 in child abuse cases in order to obtain a narrow judgment.

While offering examples of collaboration and of victim-centered advocacy (Da Penha, Cotton Field, and Lenahan), the findings also illustrate the unequal power relations among norm entrepreneurs from civil society (Carpenter Reference Carpenter2011; MacDowell Santos Reference MacDowell Santos2018): in Opuz, the ECtHR’s Registry appealed to Interights, a Western organization affiliated with the global legal elite, to bolster the Turkish lawyer’s legal argumentation; in Cotton Field, the grassroots organizations had to fight tooth and nail to retain control over the case. This suggests that the experimentalist emphasis on the participation of actors from the periphery should be tempered by an understanding that such participation is unequal. Moreover, attention should be given to the significant—and, currently, hidden—power of junior bureaucrats to raise issues (ECtHR’s Registry in Opuz) and institutionalize changes (UN Secretariat with respect to the CAT and the HRC).

In addition to norm entrepreneurs, their sympathizers, state actors with short-term interests, and bureaucrats, some of the landmark cases, such as Cotton Field and Valiuliené, were pushed by victims, grassroots organizations, and strategic litigators with little interest in international norm entrepreneurship, pursuing primarily personal or national goals. Norm entrepreneurs thus share control of lawmaking with a wide range of actors.

Process

In this case, norm change took a slower, incremental, and more haphazard trajectory than suggested by the normal life cycle. There is no “cascade” moment at which a critical mass of persuaded states can be pointed to or at which institutions can be seen to firmly get on board the norm entrepreneurs’ project, even considering each body in isolation. Rather, activists carefully established a series of incremental steps before each institution: in the HRC, domestic violence was first discussed in relation to equality, before a shift to Article 7 was made in the concluding observations and in General Comment no. 28. Gaer and Mavrommatis built a record at the CAT in concluding observations that served as a basis for drafting General Comment no. 2. Before the HRC and the inter-American system, the framing of domestic violence as CIDT was built on the general recognition of state responsibility for private actors and on the specialized Belém do Pará Convention. Children’s rights activists obtained victories that lay the groundwork for women’s rights activists a decade later before the ECtHR. The landmark case of Opuz was not sufficient to institutionalize the change, since domestic violence was still not routinely litigated under Article 3 of the ECHR until 2013, and it took a case of more banal domestic violence to firmly establish the relevance of that article.

While these incremental expansions were effected through standard legal techniques of analogical reasoning and the invocation of precedent, the actors can be seen from a strategic perspective to be “grafting” their claims onto previous successful ones. However, contrary to international relations scholars’ understanding of grafting as the general framing of a new issue in relation to a previous one, this case shows multiple instances of “micro-grafting,” whereby actors incrementally expanded the meaning of the norm, each building on a prior specific interpretation: domestic violence was grafted onto prohibited acts as diverse as rape in prison, child abuse, and paramilitary violence. Some of this grafting involved the same norm entrepreneurs in various stages, such as Gaer’s establishment of a record in the concluding observations on which to graft the general comment she herself drafted. In other instances, it was uncoordinated, such as the grafting of women’s rights advocacy on children’s rights successes and of advocacy for the recognition of banal domestic violence (Valiuliené) on the successes of advocacy for the recognition of horrific domestic violence (Opuz). Thus, instead of a linear process of norm change as a result of successful formations of activist networks, we see here an incremental, recursive, and uncoordinated process of norm evolution.

Opportunities and Constraints

The law and procedure of IHRL have functioned not only as opportunities to be mobilized but also as constraints on norm development. The norm entrepreneurs have leveraged many political opportunity structures: the UN and regional organizations’ focus on gender-based violence; the urgency created by the post-9/11 era for the CAT to issue a general comment clarifying states’ obligations; and the presence of feminist and progressive experts and judges at the HRC, the ECtHR, the IACtHR, and the IACHR. They also leveraged law, procedural rules, and bureaucratic practices, including rules of procedure giving NGOs access to treaty body proceedings and offering them the ability to represent petitioners and submit third-party briefs as well as the standardization of treaty body working methods that led to the recurrent appearance of domestic violence in questions sent to states and in concluding observations. These practices also include the broad mandates of generalist bodies, where domestic violence could have more easily made its first steps on the stage in connection with articles unrelated to torture than in the CAT.

As is to be expected in legal advocacy, when grafting, the norm entrepreneurs took advantage of the “fit” of their claims with precedent, such as rulings recognizing child abuse as inhumane treatment, the HRC’s recognition of state responsibility for violence by private actors, or the less controversial recognition in the CAT of sexual violence in prison. The case thus illustrates the path dependence that scholars have identified in international advocacy, where existing issues shape the emergence of new issues (Carpenter Reference Carpenter, Avant, Finnemore and Sell2010, 237). Yet this study shows that it is not only that existing issues (in this case, private actor violence or child abuse) provide an advantage to new issues that resonate with them (domestic violence) but also that the analytical framework for addressing existing issues is carried over to the new ones. Thus, the formulation of states’ positive obligations in relation to the prohibition of torture as primarily consisting of diligent criminal prosecution has carried over to the treatment of domestic violence. So did the ECtHR’s case-by-case analysis of whether an applicant’s claim reaches the level of severity to make Article 3 applicable, at the expense of a general characterization of domestic violence as ill-treatment. Viewing norm change in IHRL not only as the appearance of new issues on the agenda of the international community but also as grafting legal doctrine allows one to identify with more precision how path dependence limits the ways in which issues are discussed in IHRL. While, in more recent years, some actors operating within IHRL have focused on structural remedies other than criminal prosecution when addressing domestic violence as torture, these efforts have remained peripheral (Davidson Reference Davidson2019, 131–33).

The inclusion of domestic violence was likely facilitated by the abstractness of the formulations of torture and CIDT before the HRC, in line with the experimentalist account. With respect to other institutions, when Copelon and other feminist advocates argued that domestic violence unproblematically fit the existing concept of torture, they can be seen as invoking an abstract, broader category of torture. However, from a doctrinal perspective, the CAT and the inter-American system operated with rather specific definitions of torture. The key creative process before those institutions is therefore not the specification of abstract norms. Instead, the case highlights the hardening of soft law and the consolidation of interpretations across a fragmented field. I discuss each of these in turn.

While some states expressed surprise at being questioned by the CAT about domestic violence, they did not mount a serious opposition. After all, in periodic reviews, they were not taking part in a judicial proceeding. For the same reason, in reviews before the HRC, states were not likely to argue about the exact article under which domestic violence was to be discussed—Article 3 or 7 of the ICCPR. Yet these periodic reviews, and the standardized list of questions and concluding observations they produced, established the categorization of domestic violence as torture/CIDT before these bodies, justifying the general comments that further cemented the norm change. The pronouncements of treaty bodies also assisted in the consolidation of the norm in the regional courts. While neither the IACHR, the IACtHR, nor the ECtHR extensively cited from the CAT and the HRC in the rulings discussed above, they drew heavily on the publications of the CRC in the child advocacy cases and even more on the publications of CEDAW (the ECtHR in Opuz, the IACtHR in Cotton Field). Moreover, the litigants and third-party interveners before the regional courts referred extensively to the work of the treaty bodies, including CAT and the HRC. This case reveals a movement within the treaty bodies, and from treaty bodies to regional courts, whereby norms and ideas initially conceived as non-binding are vested with increasingly binding meaning. This movement furthers creativity as the initial stages, lacking requirements of legal precision, allow expansive, novel interpretations to take root.

The movement from treaty body to regional court is key to the hardening of soft law. Norms also travel among bodies, not just formally but also through shifts of personnel—Mavrommatis from the HRC to the CAT, Evatt from CEDAW to the HRC, and Medina Quiroga from the HRC to the IACtHR. In each case, these individuals brought to their new position an understanding of the culture and approach to human rights of the previous institution. Here we see the diversity of approaches and foci of attention among institutions in IHRL not as a sign of “hypertrophy” and weakness (Posner Reference Posner2014, 91–94) but, rather, as an enabler of creativity. It is not only that specialized treaty bodies such as CEDAW and the CRC develop a rich understanding of their areas of expertise, but the jurisprudence of regional bodies also reflects regional historical circumstances. Hence, it is no surprise that the IACtHR was a forerunner in the recognition of state responsibility for private actors in the context of the extensive use of paramilitary groups by states in the Latin America. While these specialized, unique interpretations of rights are produced in each institutional context, they are subsequently circulated to the other bodies within the regime, through personnel shifts and the comparative citations central to judicial legitimacy (Seibert-Fohr Reference Seibert-Fohr2015). This process of consolidation of a fragmented field is incremental and slow. It nevertheless enables the injection of novel ideas into the system as a whole.