Violence Against Migrant Women: The Istanbul Convention Through a Postcolonial Feminist Lens
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This article examines the recent Council of Europe Convention on violence against women (VAW) through the lens of postcolonial feminist critiques. The article argues that, while there is certainly cause for optimism, the Convention still falls into some of the traps identified by postcolonial feminists. The Convention largely circumvents the stigmatising risks that arise from framing certain VAW forms primarily as a problem of some ‘cultures’. Yet dangers linger in the Convention’s approach to ‘honour’ as an unacceptable justification for VAW. Inherent risks also remain in the vulnerability frame through which the Convention views migrant, refugee, and asylum-seeker women. Applied uncritically, these approaches risk re-inscribing images of inherently powerless women victimised by their non-European ‘cultures,’ reminiscent of colonial times.
KeywordsIstanbul Convention Migrant, refugee, and asylum-seeker women in Europe Postcolonial feminism Violence against women
The recognition of the problem of violence against women (VAW) in international human rights law has been cause for both celebration and concern among feminist scholars. Following decades of scattered attention, if not silence, VAW finally entered international human rights law in the nineties, framed as part of the problem of inequality between women and men (Edwards 2011, 7 and 140). Feminists have welcomed this gender-specific frame for making visible the harm historically experienced by women and its roots in female subordination (Goldscheid 2014, 628–629). At the same time, however, feminists have worried that over-emphasis on female victimhood may perpetuate older stereotypes of women as inherently vulnerable and in need of protection (Scully 2009; Otto 2006, 345).1
Postcolonial feminists, in particular, have warned that an exclusive reliance on female victimhood has often re-inscribed colonial images of non-Western women as abjectly oppressed by their cultures (Kapur 2002).2 These depictions have reinforced racial stereotypes of these cultures as ‘backward’ and of the women concerned as intrinsically helpless, prompting ‘rescuing’ responses reminiscent of imperial interventions (Kapur 2005, 99; 2002, 17–20).
In 2014, international human rights law welcomed a major VAW development: the Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence (the Istanbul Convention or the Convention).3 As the first legally binding VAW instrument to enter into force in a region with a colonial past, postcolonial feminist concerns gain particular salience. In recent years, Western European states have intensely targeted violence against women of migrant background in ways feminists have found stigmatising (Longman and Coene 2015, 61–62; Yurdakul and Korteweg 2013; Baer 2010, 62; Dustin and Phillips 2008). France, for example, has been criticised for condemning VAW primarily “according to logics of cultural otherness,” which readily recognise “tropes of alterity, such as forced marriage, honor killings, or… female genital mutilation” (Ticktin 2008, 865).4 Motivated by the need to ‘rescue’ women of migrant background from their violent ‘cultures’ (Razack 2004), domestic efforts of this kind separate these forms from violence against women occurring in the wider society (Dustin 2007, 1).
Whether the Istanbul Convention will come to reinforce or discourage domestic responses that (re)produce the ‘Other’5 will largely depend on the extent to which postcolonial feminist insights have made their way into the Convention.6 On paper, there are some indications that the Convention would be taking on these critiques. Among its objectives, the Convention includes not only protecting women from violence7 but also empowering women as part of the broader aim of promoting gender equality.8 Moreover, the Convention does not group and single out for separate attention certain violence types often assumed to be ‘caused’ by some ‘cultures’.
This article evaluates the Istanbul Convention through the lens of postcolonial feminist critiques. It examines, in particular, whether the Convention views violence against migrant,9 refugee,10 and asylum-seeker women11 through stigmatising frames that may re-entrench their victim status or through frames that recognise the structural causes of this violence and women’s resistance in the face of it.
The article shows that the Istanbul Convention has, to a significant extent, escaped some of the fundamental traps identified by postcolonial feminists. The Convention views a variety of forms of violence typically experienced by women through the frame of VAW.12 In using this frame, the Istanbul Convention largely circumvents the stigmatising risks arising from framing certain forms of VAW as a problem of some ‘cultures’, usually non-dominant ‘cultures’.
The article further argues that some pitfalls remain nonetheless in both the Convention text and, to a larger extent, in the Explanatory Report of the Convention, a document in which the drafters give content to the provisions of the Convention. The Convention text still views certain notions such as ‘honour’ through frames that may not fully dispel stigmatisation risks. Moreover, at times, the Explanatory Report views migrant, refugee, and asylum-seeker women as vulnerable in ways that may reinforce further victimisation and undermine broader empowering objectives.
In what follows, I develop these arguments in two parts. In the first part, I identify some of the main critiques made by postcolonial feminists to (international human rights) law’s efforts to combat VAW. In the second part, I zoom in on the Istanbul Convention text and the drafters’ interpretation of the Convention in order to assess whether VAW is addressed without contributing to the gender/cultural/racial stereotyping of migrant, refugee, and asylum-seeker women in Europe.
VAW in International Human Rights Law and Postcolonial Feminist Critiques13
Incorporating the feminist insight that VAW is rooted in unequal gender relations (Schneider 2000, 5), international human rights law has recognised VAW as part of the wider problem of discrimination against women (Edwards 2011, 179–181). This recognition has gone hand in hand with the recognition of gender stereotypes as one of the root causes of such violence (Peroni and Timmer 2016). In the words of the United Nations Special Rapporteur on Violence against Women: “[V]iolence is not an isolated incident targeting vulnerable women but a systematically used tool of patriarchal control to ensure that ‘women stay in their place.’”14
Whereas anti-stereotyping concerns lie at the heart of international human rights efforts to combat VAW (Peroni and Timmer 2016), ironically, subsequent law has to some extent resulted in more stereotyping.15 The exclusive focus on female victims of violence has recreated old stereotypes of women as intrinsically vulnerable and in need of protection (Goldscheid 2014, 640–641; Scully 2009; Otto 2006, 345). This has been especially the case for ‘other’ women whom international human rights law has come to rescue from their oppressive ‘cultures’ (Otto 2006, 347; Kapur 2002).
Stereotypical constructions of gender have thus intersected with those of race and culture to produce one of the recurring female subjects of international human rights law: the victim subject (Otto 2006). The victim subject, Otto explains, has been “created by the masculine bearer of ‘civilization’ who rescues ‘native’ women from ‘barbarian’ men” (2006, 320). Postcolonial feminist scholars have identified various ways in which these stereotypical imageries have been reasserted. In this part, I draw attention to three of these ways: (1) disproportionate emphasis on and distinctive framing of certain VAW forms; (2) culturalisation of some VAW types and stigmatisation of non-Western or minority ‘cultures’; and (3) use of gendered and racialised notions to describe non-Western and minority women affected by VAW.
Disproportionate Emphasis on and Distinctive Framing of Certain VAW Categories
Categories such as FGM, honour-based violence, and forced marriage have been distinctively framed as “harmful cultural practices,” a scheme reserved to VAW and gender discriminatory practices in non-Western countries and minority/migrant communities in the West (Longman and Bradley 2015, 11). Despite efforts to extend this frame to practices in the West17 and to challenge this frame “for essentializing certain cultures as the source of the problem,”18 VAW forms associated with such countries and communities remain the paradigmatic examples of harmful cultural practices in international human rights law.19 The latter frame, as I will now show, has been criticised for using notions of culture that racialise non-Western societies and migrant communities in the West.
Although violence against women has been identified as a universal phenomenon, the focus has been to condemn certain “uncivilized” practices in developing countries, such as genital surgeries and dowry murders, which produces anew the “native victim” of her “uncivilized” culture, whom Western feminists can speak for, rescue and rehabilitate, this time through extending the civilizing reach of human rights law (2006, 347).
Selective Culturalisation of VAW and Racialisation of Cultural Differences
Critiques of international human rights law’s approach to VAW show how an essentialist understanding of culture as static tradition is typically used to describe practices in the Global South (Merry 2006, 12). When culture in this sense refers to Europe and North America, the critique continues it is to describe the lifestyle of migrant communities or racial minorities (Merry 2006, 12). In an analysis of CEDAW hearings on VAW, Sally Engle Merry notes: “[C]ulture is out there, in the hinterland, with the minorities, while here there is law, with culture hiding from view, buried in the everyday practices of modernity” (2003b, 974).
Known as selective culturalisation, this kind of move reduces VAW to a problem of culture, “understood as frozen in time and separate from systems of domination” (Razack 2004, 131). Culture is thus viewed as something fixed and homogenous and selectively deployed to explain VAW against certain groups of women (Volpp 2000). Used in colonial times to describe ‘backward’ peoples to be ‘civilised’ (Merry 2006, 12), this understanding of culture usually marginalises “as ‘other’ those to whom it is attributed” (Merry 2003b, 974). In recent post-9/11 times, culturalising violence has served to stigmatise and police minority communities in Western countries (Razack 2004).
An example of selective culturalisation is the harmful cultural practices frame discussed above. The frame suggests that Western metropolises have no ‘culture’ harmful to women and, therefore, that existing violence is not culturally condoned (Winter et al. 2002, 72).20 Any culture-specific frame that segregates some categories from generic VAW frames—and even the term ‘cultural practice’—has raised scepticism among feminists (Phillips 2010, 5; Dustin and Phillips 2008, 419). The worry is that such frames may reinforce the idea that VAW is a problem exclusively in minority groups (Dustin 2007, 30).
In selectively culturalising some VAW forms in ways reminiscent of colonial times (Merry 2006, 12), international human rights law makes itself vulnerable to charges of racialising cultural differences (Krivenko 2015, 134). Certain behaviours have been recognised as harmful through essentialist binaries that stigmatise some cultures as more oppressive—and the women concerned as more oppressed—than those of the liberal West.21 Colonialist racial binaries (e.g. backward/civilised) thus creep back into human rights law not because it endorses them explicitly but because it understands and ascribes culture in ways that maintain traditional/modern binaries (Merry 2006, 13 and 226).
Gendered and Racialised Labels: Vulnerable (Minority) Women
The use of gendered and racialised notions in (international human rights) law to describe non-Western or minority female VAW victims has been another source of postcolonial feminist critiques. One of these notions is vulnerability, a notion that has been on the rise both in feminist theory and in international human rights jurisprudence, albeit with different connotations. Contrary to feminist efforts to theorise vulnerability in a universal way as something inherent in all human beings (Fineman 2008; Butler 2004), recent international human rights jurisprudence views vulnerability as something concerning certain groups or individuals (Peroni and Timmer 2013; Chapman and Carbonetti 2011).22
Uncritically characterising some as more vulnerable than others carries however inherent stigmatising risks. Typically linked to “victimhood, deprivation, dependency, or pathology,” vulnerability has a negative connotation (Fineman 2008, 8–9).23 Applied like a label to describe something intrinsic to some groups, vulnerability may thus operate to stigmatise them as perpetual, deprived victims (Peroni and Timmer 2013, 1073–1074). The risk of stigmatisation arises from viewing vulnerability as something that lies exclusively and inherently in the group rather than as something relational, lessened or heightened by broader social and historical contexts (Peroni and Timmer 2013, 1064 and 1073–1074).24
Given these risks, it comes as no surprise that feminists remain uneasy about using vulnerability to describe women in international human rights law (Scully 2009). Deployed unreflectively, vulnerability may serve to sustain the above-mentioned female victim subject recurrent in international human rights law. Produced by “notions of women’s sexual vulnerability,” and “colonial narratives of gender” this subject has been construed as nothing but helpless and in need of “imperial salvation” by international human rights law (Otto 2006, 320 and 335).
The use of vulnerability has called for particular caution in legal responses to migration. Usually invisible in law, when migrant women do appear in these responses, it is as oppressed victims to be protected (Kapur 2010, 8). Not surprisingly, feminists have recently brought to light gendered and racialised deployments of vulnerability in the migration context (FitzGerald 2011), especially in discourses on sexual exploitation of trafficked female migrants and female sex workers (FitzGerald 2012; Munro and Scoular 2012). Without denying vulnerability’s progressive potential, these feminists warn that vulnerability may sometimes be deployed for regressive purposes (Munro and Scoular 2012) and instrumentalised to protect European borders from “unwanted ‘Others’” (FitzGerald 2012, 227). These critiques, though not focused on international human rights law’s responses to VAW, come to confirm the need for a critical evaluation of legal responses to ‘other’ women’s vulnerability to sexual harm.
To conclude this section, (international human rights) law’s disproportionate and distinctive attention to some VAW forms, selective and essentialist uses of culture, and gendered/racialised constructions of vulnerability have served to further victimise certain groups of women in ways that evoke colonial times.25 The Istanbul Convention, which is celebrating its second anniversary of entry into force this year, offers an exceptional opportunity to assess the extent to which the challenge of condemning VAW without reinforcing intersectional stereotypes of gender, race, and culture has been successfully addressed.
The Istanbul Convention Through the Lens of Postcolonial Feminist Critiques
In this section, I examine the Istanbul Convention text26 and the drafters’ interpretation of the Convention27 in light of the postcolonial feminist critiques outlined above. I first introduce the Convention drafters, the Convention’s relevant objectives, and the main ways in which the Convention addresses VAW against migrant, refugee, and asylum-seeker women.28 Then, I show that the Convention text seems to have largely but not entirely escaped the traps identified by postcolonial feminists. The drafters, in turn, also fall into some of these traps in the Explanatory Report, the first interpretation available of the Convention,29 to which its expert monitoring body30 will likely turn for interpretative guidance.31
The Convention: Drafting, Objectives, and VAW in the Context of Migration/Asylum
The preparation of what has become the Istanbul Convention was entrusted to the Ad Hoc Committee on Preventing and Combating Violence against Women and Domestic Violence (CAHVIO). CAHVIO’s creation in 200832 followed growing initiatives since the nineties to protect women against violence within the Council of Europe and concerns that such violence undermines human rights values at the core of this regional organisation.33
CAHVIO members included mainly national experts representing either the Ministries of Social Affairs/Gender Equality/Human Rights or the Ministries of Justice in the forty-seven Member States of the Council of Europe.34 The idea was to keep an “equal proportion” of experts in human rights/gender equality and experts in criminal law/procedure.35 CAHVIO participants—who did not have the right to vote—seemed to follow a similar balance of fields of expertise.36 To assist CAHVIO’s work, feminist scholars Renée Römkens and Christine Chinkin were appointed as scientific experts.37
CAHVIO’s negotiations eventually led to the first legally binding standards on VAW in Europe. Following human rights law predecessors,38 the Istanbul Convention condemns VAW as part of the larger problem of inequality between women and men. Like these predecessors, it recognises that VAW “is a manifestation of historically unequal power relations between women and men” and, at the same time, “one of the crucial social mechanisms by which women are forced into a subordinate position compared with men.”39 One fundamental implication of characterising the problem in these terms is that VAW is no longer seen as the result of an isolated individual act but rather as part of a more systemic problem (Edwards 2011, 186).
In affirming the links between VAW and gender inequality, the Convention does not simply recognise the structural nature of the problem. It locates efforts to eradicate VAW within wider efforts to combat discrimination against women and achieve gender equality. The Convention thus sets out objectives that go beyond the protection, prevention, prosecution, and elimination of VAW and domestic violence.40 The objectives more structurally include eliminating discrimination against women and promoting substantive equality between women and men by, inter alia, empowering women.41
The Convention demands that state parties promote the empowerment of women as part of their prevention obligations.42 Moreover, it asks these states that protection and support measures “aim at the empowerment and economic independence of women victims of violence.”43 At first glance, therefore, the Convention makes an admirable effort to redress the wider causes at the root of women’s victimisation to violence while simultaneously emphasising the need for empowering women as part of achieving gender equality.
Particularly relevant for present purposes is the Istanbul Convention’s concern over violence against (female) migrants, refugees, and asylum seekers.44 The Convention, first of all, ensures that its provisions are implemented without discrimination on grounds such as sex, gender, race, migrant or refugee status, language, and national origin.45 This is an extremely important provision. It guarantees that migrant and refugee women are not excluded from services and therefore not exposed to further violence because of their, say, residence status.46
The Istanbul Convention also opens up access to protection and justice for (female) migrants, refugees, and asylum-seekers by easing the effects of language barriers. For example, the Convention asks state parties to adopt measures ensuring that victims who do not speak the language are given information on support services and legal actions in a language they understand,47 and access to interpreters during investigations and judicial proceedings.48 These measures are instrumental in enabling victims who do not or hardly speak the language—like many migrant, refugee and asylum-seeker victims—to make informed decisions, seek support, claim their rights, and access justice.49
In a chapter exclusively devoted to migration and asylum,50 the Convention counters the effects of some barriers arising more structurally from migration and asylum legal regimes (e.g. dependency on partner’s/spouse’s residence status and gender-blind asylum procedures). For instance, victims of violence whose residence status depends on that of their partners/spouses may obtain an independent residence permit.51 They may also obtain the suspension of expulsion proceedings in respect of themselves in the event of expulsion of partners/spouses on whom their residence status depends.52 These measures may thus ensure that the risk of losing residence status does not prevent (female) migrant victims from seeking protection and that deportation does not expose them to further abuse in their countries of origin.53
As for asylum-seeker women, the Convention for example asks state parties to recognise that gender-based violence against women may amount to persecution.54 Moreover, it demands that these states introduce gender-sensitive reception procedures, support services, and asylum procedures.55 The Istanbul Convention thus addresses the ways in which women may experience persecution and navigation of the asylum system differently than men.56 In so doing, it confronts the gender-blindness that has long characterised asylum law.57
In the following sub-sections, I show that the Convention text escapes one fundamental trap identified by postcolonial feminists: using separate frames that over-emphasise the cultural distinctiveness of certain types of violence. I maintain however that the Istanbul Convention text—as well as its drafters—still ‘sees’ some forms of violence through potentially stigmatising culturalist lenses.58 I then argue that additional dangers may arise from the way in which certain groups—among which migrant, refugee, and asylum-seeker women are included—are characterised as vulnerable in the drafters’ interpretation of the Convention.
The Convention Text and the Drafters’ Interpretation: The Promise of Equal Framing and the Persisting Danger of Selective Culturalisations
One important trap that the Istanbul Convention text seems to circumvent is that of using distinctive and separate frames for certain types of violence. The Convention text condemns a broad variety of violence forms, all of them together on a more or less equal basis, under the frame of “Violence against Women and Domestic Violence.”59 The Convention text does not single out forms such as forced marriage and FGM60 for separate attention. Nor does it place them within a frame that emphasises their cultural distinctiveness. To be more precise, the text stays clear of the ‘harmful cultural practices’ frame. As seen earlier, this frame problematically singles out VAW forms thought to be ‘caused’ by certain ‘cultures’, usually those of minority, non-Western, and migrant women.
The Convention text, moreover, largely avoids giving disproportionate attention to certain forms of violence over others.61 For instance, it asks state parties to criminalise FGM and forced marriage at the same time it requires them to criminalise psychological violence, stalking, physical violence, sexual violence, and forced abortion and sterilisation.62
Yet neither the Convention text nor the drafters’ interpretation wholly dispels the culturalist shortcomings that have troubled postcolonial feminists. As discussed earlier, postcolonial feminists have worried about the stigmatising risks flowing from selectively blaming ‘cultures’ for VAW (Volpp 2000). The danger of stigmatisation does not come from acknowledging the cultural dimensions of VAW forms as such.63 The danger, rather, arises from overemphasising the explanatory role of culture when VAW affects certain groups of women, usually migrant, minority, and non-Western women (Phillips 2010, 63).
In the Convention text, the only notion that becomes visible through a rather culturalist lens is honour, which is included not as a form of violence but as an unacceptable justification for it. Article 12.5 asks state parties to ensure that “culture, custom, religion, tradition or so-called ‘honour’ shall not be considered as justification for any acts of violence covered by the scope of this Convention.”64 Adopting a similar wording, Article 42.1 then adds: “This covers, in particular, claims that the victim has transgressed cultural, religious, social or traditional norms or customs of appropriate behaviour.”65
Though these two provisions may encompass a wide range of unacceptable justifications (Gormley 2014, 615), both provisions exclusively focus on ‘honour’. In fact, honour is the sole illustration offered in Articles 12.5 and 42.1. Honour is additionally made visible in the title of Article 42, which reads: “Unacceptable justifications for crimes, including crimes committed in the name of so-called ‘honour.’”66
The role of religion and culture in shaping these justifications is also over-emphasised. Notwithstanding the addition of “social” factors in Article 42.1, a reading of its overall formulation, together with that of Article 12.5, suggests that unacceptable justifications for violence are primarily inspired by culture, custom, religion, and tradition. The exclusive focus on honour combined with the over-emphasis on culture and religion signals the kind of culturalist framing that would trouble postcolonial feminists.
The same combined over-emphasis on honour and culture/religion features in the drafters’ explanatory notes to Article 12.567 and some other Convention provisions. For example, commenting on Article 60 “Gender-based asylum claims,” the drafters use honour crimes as the primary example of persecution on the grounds of religion: “Concerning persecution on the grounds of religion, women may be persecuted for not conforming to religious norms and customs of acceptable behaviour. This is particularly true in cases of crimes committed in the name of so-called ‘honour.’”68
A similar culturalist logic flows from the drafters’ interpretation of Article 38, which deals with FGM. In the Explanatory Report, the drafters clarify that this provision “aims at criminalising the traditional practice of cutting away certain parts of the female genitalia which some communities perform on their female members.”69 This understanding implicitly relies upon several assumptions. One of them is that only some forms of female genital surgery should be criminalised: ‘traditional’ not ‘cosmetic.’70 A related assumption is that traditional forms are practiced only in some communities. This latter assumption obscures the cultural approval of physically invasive ‘cosmetic’ genital surgeries in other communities.
Both the Convention text and the drafters take care not to conflate honour-based justifications for violence or FGM with any particular community, migrant or otherwise. Yet it is probably no coincidence that references to culture, religion, and tradition—be it in the Convention text or in the drafters’ interpretation—pop up largely in relation to two violence types whose frequent culturalisation feminists have criticised in domestic legal responses to VAW in Western Europe (Dustin and Phillips 2008). In short, while the Convention text seemingly escapes culture-specific frames such as ‘harmful cultural practices’, it still deploys a culturalist logic to understand and condemn honour-based justifications for violence. The same applies to the drafters’ interpretation of honour and FGM.
The Drafters’ Interpretation: Vulnerability Worries
The Istanbul Convention text requires state parties to take into account and address the specific needs of vulnerable persons in adopting prevention, protection, and support measures.71 In requiring states to specifically tailor their responses to the needs of certain persons both procedurally (take into account) and substantively (address), the Convention makes an effort to attend to differences among (potential) violence victims. The Convention text speaks of “persons made vulnerable by particular circumstances”72 or simply “vulnerable persons”73 without specifying who these persons are or why they are considered vulnerable.74
The drafters’ Explanatory Report, however, lists these vulnerable persons for the purposes of the Convention.75 In the first place, the drafters consider migrant and refugee women vulnerable implicitly, as part of the group “migrants, including undocumented migrants and refugees,” and together with other groups as diverse as pregnant women, persons with disabilities, homeless persons, children, and the elderly.76 Additionally, the drafters recognise the vulnerability of migrant women explicitly, this time along with that of asylum-seeker women: “Migrant women, including undocumented migrant women, and women asylum-seekers form two subcategories of women that are particularly vulnerable to gender-based violence.”77
Clearly, then, not all women are regarded as vulnerable by the drafters. What is more, “persons made vulnerable by particular circumstances” include both female and male groups. The nature of the vulnerability category is therefore mixed: migrant women are together with migrant men and with other gender-neutral groups such as the elderly and children. Thus, the drafters’ group-based vulnerability formulation does not appear gendered, as it avoids assuming that vulnerable persons are exclusively or primarily women. Nor does it seem racialised, for it avoids using vulnerability to refer only or mostly to groups of migrant, refugee or minority background.
Yet, as I noted in the first section, unreflectively characterising certain groups as vulnerable inheres certain risks. Applied like a label that defines some groups, these groups risk being permanently marked as such and therefore stigmatised as inherently powerless victims. Applied relationally, however, vulnerability may bring to light the historical and societal contexts that render these groups vulnerable. In linking people’s vulnerability to the social, historical or institutional environment, the relational approach encourages interrogation of the arrangements that originate and sustain the vulnerability of certain groups (Peroni and Timmer 2013, 1064). In other words, this latter approach avoids understanding vulnerability as something inherently ‘wrong’ in the groups and invites looking at vulnerability as (re)produced by something wrong in the broader environment.
The name of the category “persons made vulnerable by particular circumstances” at first suggests a concern with this relational question. The formulation signals that persons are not vulnerable but rendered vulnerable by circumstances that are not located solely in them. However, in explaining why certain persons are considered vulnerable by particular circumstances,78 the drafters miss the chance to locate their vulnerability in connection with the wider social context. Instead, they locate the vulnerability in these persons alone. The Explanatory Report of the Convention states: “Perpetrators often choose to target such persons because they know that they are less likely to be able to defend themselves, or seek prosecution of the perpetrator and other forms of reparation, because of their situation.”79
Using the perpetrators’ gaze (“they know”), the drafters here associate these persons’ vulnerability with a lessened ability to defend themselves and seek justice. Put simply, this limited capacity is what makes them more vulnerable to violence. The problem arises when the drafters explain what actually lessens these persons capacity to defend themselves and pursue prosecution. The answer is “their situation.” They are less capable of defending themselves “because of their situation” rather than because of the interaction with institutional and societal structures that may hinder their (equal) access to systems of protection and justice.
The reference to their situation ultimately signals that the lessened capacity to defend themselves lies exclusively or primarily within certain persons. It simultaneously hides from view the wider social forces that undermine this capacity or reinforce victimisation.80 Moreover, the explanation obscures any efforts these persons may make to protect themselves, thereby unintentionally suggesting an idea of complete helplessness in the face violence. Implicitly, then, these persons are defined exclusively by their intrinsic diminished capacity to protect themselves.
The understanding of group-based vulnerability flowing from the above-referred explanation is precisely the kind of understanding that carries the danger of defining certain groups by their vulnerability and fixing them in a position of helplessness. The fact that the drafters overlook these risks is particularly puzzling, considering that a concern over such risks was on the drafting table. Christine Chinkin warned: “It is important that people are not simply labelled as ‘vulnerable’ and perceived only in terms of their perceived vulnerabilities and needs.”81 Inattention to the structures at the root of these groups’ vulnerability to violence risks frustrating the Convention’s broader efforts to illuminate the structural causes of VAW and empower victims.
Here, the drafters at least draw attention to the interaction with structural barriers in overcoming violence, barriers that may ultimately exacerbate the vulnerability of these groups of women to violence. One is however left to infer from the drafters’ comments under the “Migration and Asylum” chapter which barriers these might be. The comments signal that these obstacles may include the ones arising from domestic migration and asylum regimes discussed earlier (e.g. dependent residency, gender-blind asylum procedures).83
Despite their difference in legal status, reasons for leaving their home country and living conditions, both groups are, on the one hand, at increased risk of experiencing violence against women and, on the other hand, face similar difficulties and structural barriers in overcoming violence.82
Though the drafters could have gone further in more explicitly and fully illuminating the structural barriers, the drafters importantly include measures encouraging migrant women’s search for protection84 and asylum-seeker women’s access to asylum procedures.85 Moreover, consistent with the Convention’s broader empowering purposes, the drafters emphasise that support services for asylum-seeker women may not only include counselling and medical care but also “enable them to actively rebuild their lives.”86
To summarise the discussion in this sub-section, despite these latter commendable efforts, stigmatising risks implicitly remain in the drafters’ uncritical characterisation of certain groups as vulnerable (of which migrant, refugee, and asylum-seeker women are part). In this characterisation, the focus remains too much on certain groups and their inabilities to defend themselves rather than on the societal and institutional structures that cause or exacerbate these inabilities.
Notwithstanding feminists’ insistence on the need to simultaneously recognise systemic oppression and resistance in the face of violence (Mahoney 1994; Schneider 1993), the drafters actually obscure both in their understanding of “vulnerable persons.” If one is to take seriously postcolonial feminist worries about the tendency for gender, cultural, and racial stereotypes in the VAW context, understandings of vulnerability as an attribute defining and intrinsic to certain groups (of women) should be avoided.
The Istanbul Convention text undeniably deserves praise. To a significant extent, it moves away from frames long criticised for their stigmatising and racialising risks. Crucially, the Convention text makes an effort to attend to several structural barriers that migrant, refugee, and asylum-seeker women may encounter in overcoming violence. Yet the Convention text also merits some criticism. Potentially stigmatising frames are not entirely left behind, as the rather culturalist logic underpinning ‘honour’ illustrates.
The fact that the Convention text seemingly escapes some of the fundamental traps that have worried postcolonial feminists does not necessarily dissipate these worries. In explaining the Convention text, the drafters at times look at certain groups of victims and forms of violence through lenses that may still carry the dangers of further victimisation and stigmatisation.
Concerns therefore remain that state parties may instrumentalise the drafters’ interpretation to reinforce domestic VAW strategies frequently criticised for stigmatising and marginalising women of migrant background. Whether this will ultimately be the case will partly depend on the work of the Convention's expert monitoring body, which should push for greater acknowledgement of postcolonial feminist concerns.
Rather than abandoning efforts on international VAW conventions, the Istanbul Convention example shows that these conventions are worth the investment even when there might be lessons to be drawn. One such lesson is that drafters should remain equally careful in their interpretation of convention texts if they want their work, however well intentioned, to combat rather than encourage regressive state responses to violence against groups of women already widely stereotyped in Western societies.
On this and further critiques of the gender-specific frame of VAW, see Goldscheid (2014).
The Istanbul Convention entered into force on 1 August 2014.
The same ‘practices’ have been intensely targeted across Western Europe and commonly linked to Muslim minorities (Dustin 2007, 4).
Othering has been understood as “a strategy to locate a problem elsewhere and to remain categorically clean, untouched” (Baer 2010, 61).
The United Nations Special Rapporteur on Violence against Women, for example, has made efforts to address these critiques. See 15 years of the United Nations Special Rapporteur on Violence against Women, Its Causes and Consequences (1994–2009): A Critical Review, 34–36.
Article 1.1.a IC.
Article 1.1.b IC.
I use ‘migrant women’ to refer to those who have left their countries of origin for reasons unrelated to persecution (e.g. employment, education, family reunification).
I use ‘refugee women’ to refer to those who are outside their country of nationality given well-founded fear of persecution and inability to avail themselves of the protection of that country, or to go back, due to fear of persecution. See 1951 Convention Relating to the Status of Refugees.
I use ‘asylum-seeker women’ to refer to those who have applied for asylum in another country and await determination of their status.
See however Römkens’ critique of the Istanbul Convention’s treatment of domestic violence (2013).
International human rights law is obviously not monolithic. Approaches differ from one system to another and across bodies within the same system. The critiques discussed in this part concern mostly the approach prevailing in the United Nations system, particularly the work of the Committee on the Elimination of Discrimination against Women (the CEDAW Committee). Scholarly critiques often focus on the CEDAW Committee’s work. This is hardly surprising since, for the moment, there is no legally binding VAW instrument at the UN level and the CEDAW Committee has come to fill this gap.
Supra n 6 at 35.
In the context of trafficking, Kapur for example notes that while feminists have been motivated by “concerns over women’s equality and freedom from violence, they have inadvertently also fallen into the trap of re-entrenching women’s victim status, especially of poor women, and hence their need to be rescued and protected by a paternalistic state” (2010, 10).
“These kinds of cross-cultural comparisons have emerged out of a long history of feminist and postcolonial critique of essentialism, ethnocentrism and racism inherent in both mainstream and feminist representations of practices such as FGC and veiling” (Pedwell 2010, 2). Pedwell offers a critique of these cross-cultural comparisons.
Special Rapporteur on Violence against Women, Its Causes and Consequences, Radhika Coomaraswamy, Report “Cultural Practices in the Family that Are Violent towards Women,” 31 January 2002, para 96. See however critique by Sally Engle Merry (2006, 62–63).
Special Rapporteur on Violence against Women, Its Causes and Consequences, Yakin Ertürk, Report “Intersections between Culture and Violence against Women,” 17 January 2007, para 33.
One recent illustration is the Joint General Recommendation/General Comment No. 31 of the Committee on the Elimination of Discrimination against Women and No. 18 of the Committee on the Rights of the Child on harmful practices, 4 November 2014. The recommendation/comment acknowledges that there are a wide variety of practices harmful to women (para 8) but focuses however on FGM, child and/or forced marriage, polygamy, crimes committed in the name of so-called honour, and dowry-related violence (para 6).
CEDAW Committee’s general recommendation No 31 serves once again to illustrate that this problematic culturalist lens still persists in international human rights law. Admittedly, the Committee drops the term ‘cultural’ and speaks simply of ‘harmful practices’ in this recommendation. The frame, however, retains the focus on certain categories as examples of harmful practices often “justified by invoking socio-cultural and religious customs and values.” Ibid. para 6.
The historical relationship between vulnerability and human rights law is however more complex and bifurcated. See Grear (2010).
Fineman, however, reclaims vulnerability from these negative associations in order to challenge the liberal subject and to argue for a more responsive state (2008, 9). She maintains that, as long as vulnerability is only associated with certain marginalised populations, the liberal myth that ‘normally’ people are self-sufficient and autonomous is sustained (2012, 116).
See also Munro and Scoular (2012, 201).
The stereotypical images of ‘other’ women reminiscent of colonial times go well beyond international human rights law. They pervade domestic laws in Western countries (Dustin and Phillips 2008), including asylum law (Razack 1995). Examples of the ‘oppressed female other’ challenged in feminist literature include the Muslim woman (Abu-Lughod 2013; Razack 2008), the migrant woman (Volpp 2011), the refugee woman (Razack 1995), and the ‘third-world’ woman (Kapur 2002).
Hereinafter ‘the Istanbul Convention,’ ‘the Convention,’ or ‘the Convention text’.
Hereinafter I use ‘the drafters’ to refer to the members of the Ad Hoc Committee on Preventing and Combating Violence against Women and Domestic Violence (CAHVIO).
A full analysis of all the Convention’s objectives and state obligations exceeds the scope of this article. I focus on those that are most relevant for present purposes.
Istanbul Convention, Explanatory Report, 12 April 2011. Among other things, the Explanatory Report defines several concepts for the purposes of the Convention, outlines the nature and content of state obligations, and indicates measures that state parties may take when implementing the Convention provisions.
Group of Experts on Action against Violence against Women and Domestic Violence (GREVIO). See Articles 66–70 IC.
It would be hardly surprising to also see legislators, courts, and policy makers of state parties to the Convention looking at the drafters’ Explanatory Report for guidance.
Ministers’ Deputies of the Council of Europe, Terms of reference of the Ad hoc Committee on preventing and combating violence against women and domestic violence, 1044th meeting, 10 December 2008.
Istanbul Convention, Explanatory Report, 12 April 2011, paras 7–17.
CAHVIO, Synopsis of the meeting report, First Meeting—6–8 April 2009, 24 April 2009, CAHVIO (2009) 6.
Supra n 32 at 5.A.ii.
Ibid. 5.B and 5.C. On one side, participants included the Steering Committee for Equality between Women and Men, the United Nations Development Fund for Women, Women against Violence Europe, and Amnesty International. On the other side, participants included the European Committee on Crime Problems, the Organisation for Security and Co-operation in Europe, and Interpol. Bodies with migration/refugee expertise such as the European Committee on Migration and the United Nations High Commissioner for Refugees were also among CAHVIO participants.
Ibid. 7. For more details on the background of members, participants, and scientific experts see appendixes to CAHVIO Meeting Reports and Gormley (2014, 606–608).
See e.g. United Nations Declaration on the Elimination of Violence against Women (20 December 1993) and CEDAW Committee, General Recommendation No 19, “Violence against Women” (1992) paras 1, 6, 7, and 11.
Preamble IC. See also Article 3(a) IC.
Article 1.1(a) IC.
Article 1.1(b) IC.
Article 12.6 IC. See Istanbul Convention, Explanatory Report, 12 April 2011, para 90 (seeing this obligation as a reflection of the wider gender equality aim and understanding empowerment “in all aspects of life, including political and economic”.
Article 18.3 IC.
The Convention mostly uses gender-neutral language such as ‘victims’ [e.g. Articles 19, 56.1(h) and 59 IC]. Yet it is possible to conclude that these provisions include and/or aim to address mostly the concerns of migrant, refugee, and asylum-seeker women. See e.g. Istanbul Convention, Explanatory Report, 12 April 2011, paras 298–299.
Article 4.3 IC.
See Istanbul Convention, Explanatory Report, 12 April 2011, para 53.
Article 19 IC.
Article 56.1(h) IC.
See Istanbul Convention, Explanatory Report, 12 April 2011, paras 124 and 291.
Chapter VII IC.
Article 59.1 IC.
Article 59.2 IC.
See Istanbul Convention, Explanatory Report, 12 April 2011, paras 301 and 306.
Article 60.1 IC.
Article 60.3 IC.
Istanbul Convention, Explanatory Report, 12 April 2011, paras 310–317.
Ibid. para 310.
In using the adjective ‘culturalist,’ I follow Razack who uses it to describe “an exclusive emphasis on culture as the sole source of patriarchal violence” in ways that obscure other factors at the root of violence (2004, 132).
See title of the Istanbul Convention.
Note however that the Istanbul Convention keeps the name ‘female genital mutilation,’ which some feminists have considered problematic (Gunning 1999, 47–48).
See Chapter V IC.
Articles 33–39 IC.
Article 12.5 IC reads: “Parties shall ensure that culture, custom, religion, tradition or so-called ‘honour’ shall not be considered as justification for any acts of violence covered by the scope of this Convention”.
Article 42.1 IC reads: “Parties shall take the necessary legislative or other measures to ensure that, in criminal proceedings initiated following the commission of any of the acts of violence covered by the scope of this Convention, culture, custom, religion, tradition or so-called ‘honour’ shall not be regarded as justification for such acts. This covers, in particular, claims that the victim has transgressed cultural, religious, social or traditional norms or customs of appropriate behaviour”.
Istanbul Convention, Explanatory Report, 12 April 2011, para 89. The drafters note that the principle established in this provision “is important for societies where distinct ethnic and religious communities live together and in which the prevailing attitudes towards the acceptability of gender-based violence differ depending on the cultural or religious background.” The drafters here point to culture and religion as the sole explanations for communities’ differing attitudes towards tolerating VAW.
Ibid. para 313.
Ibid. para 198. Emphasis added.
A reading of the Second Draft Convention confirms my inference that the drafters’ interpretation suggests that “cosmetic surgery of the female genitalia is not covered by this provision.” CAHVIO, Second Draft Convention on preventing and combating violence against women and domestic violence, 18 May 2010, CAHVIO (2009) 32 rev, Article 30 “Female Genital Mutilation”.
Articles 12.3 and 18.3 IC.
Article 12.3 IC.
Article 18.3 IC.
Ibid. The only example of vulnerable persons given in this provision is child victims.
Istanbul Convention, Explanatory Report, 12 April 2011, para 87. The list includes: “pregnant women and women with young children, persons with disabilities, including those with mental or cognitive impairments, persons living in rural or remote areas, substance abusers, prostitutes, persons of national or ethnic minority background, migrants—including undocumented migrants and refugees, gay men, lesbian women, bi-sexual and transgender persons as well as HIV-positive persons, homeless persons, children and the elderly”.
Ibid. para 298.
“Particular circumstances” evoke however factors of episodic and limited nature. Its capacity to reach more structural ones remains therefore unclear. See Sosa, Lorena (manuscript on file with author).
Istanbul Convention, Explanatory Report, 12 April 2011, para 87.
The mention of the perpetrator implicitly confirms that violence against these persons occurs in an individualised perpetrator/victim setting rather than in a broader, socialised context.
Typology of Protection for Women Victims of Violence, 4 May 2009, CAHVIO (2009) 11, 3.
Istanbul Convention, Explanatory Report, 12 April 2011, para 298. The drafters later add that the trauma following exposure to sexual and other forms of abuse further makes many asylum-seeker women particularly vulnerable. Ibid. para 315.
Ibid. paras 301–318. One may draw similar inferences from the Convention provisions. See Articles 59–60 IC.
Istanbul Convention, Explanatory Report, 12 April 2011, paras 301–304.
Ibid. para 317.
Ibid. para 315.
I am thankful to Eva Brems, Alexandra Timmer, and two anonymous reviewers for their valuable comments on earlier versions of this article.
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