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Violence Against Migrant Women: The Istanbul Convention Through a Postcolonial Feminist Lens

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Abstract

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.

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Notes

  1. On this and further critiques of the gender-specific frame of VAW, see Goldscheid (2014).

  2. These critiques obviously resonate with postcolonial feminist concerns in wider debates (Narayan 1998; Mohanty 1988).

  3. The Istanbul Convention entered into force on 1 August 2014.

  4. The same ‘practices’ have been intensely targeted across Western Europe and commonly linked to Muslim minorities (Dustin 2007, 4).

  5. Othering has been understood as “a strategy to locate a problem elsewhere and to remain categorically clean, untouched” (Baer 2010, 61).

  6. 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.

  7. Article 1.1.a IC.

  8. Article 1.1.b IC.

  9. 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).

  10. 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.

  11. I use ‘asylum-seeker women’ to refer to those who have applied for asylum in another country and await determination of their status.

  12. See however Römkens’ critique of the Istanbul Convention’s treatment of domestic violence (2013).

  13. Supra n 6 at 35.

  14. 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).

  15. “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.

  16. 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).

  17. 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.

  18. 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).

  19. 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.

  20. For a critique of assumptions that women in non-dominant communities are more oppressed see Volpp (2001, 1195). On the racialised binary of Western women as “emancipated agents” and non-Western women as “emaciated victims” challenged by postcolonial feminists, see also Stringer (2014, 120–125).

  21. The historical relationship between vulnerability and human rights law is however more complex and bifurcated. See Grear (2010).

  22. 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).

  23. See also Munro and Scoular (2012, 201).

  24. 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).

  25. Hereinafter ‘the Istanbul Convention,’ ‘the Convention,’ or ‘the Convention text’.

  26. 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).

  27. 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.

  28. 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.

  29. Group of Experts on Action against Violence against Women and Domestic Violence (GREVIO). See Articles 66–70 IC.

  30. 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.

  31. 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.

  32. Istanbul Convention, Explanatory Report, 12 April 2011, paras 7–17.

  33. CAHVIO, Synopsis of the meeting report, First Meeting—6–8 April 2009, 24 April 2009, CAHVIO (2009) 6.

  34. Supra n 32 at 5.A.ii.

  35. 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.

  36. 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).

  37. 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.

  38. Preamble IC. See also Article 3(a) IC.

  39. Article 1.1(a) IC.

  40. Article 1.1(b) IC.

  41. 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”.

  42. Article 18.3 IC.

  43. 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.

  44. Article 4.3 IC.

  45. See Istanbul Convention, Explanatory Report, 12 April 2011, para 53.

  46. Article 19 IC.

  47. Article 56.1(h) IC.

  48. See Istanbul Convention, Explanatory Report, 12 April 2011, paras 124 and 291.

  49. Chapter VII IC.

  50. Article 59.1 IC.

  51. Article 59.2 IC.

  52. See Istanbul Convention, Explanatory Report, 12 April 2011, paras 301 and 306.

  53. Article 60.1 IC.

  54. Article 60.3 IC.

  55. Istanbul Convention, Explanatory Report, 12 April 2011, paras 310–317.

  56. Ibid. para 310.

  57. 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).

  58. See title of the Istanbul Convention.

  59. Note however that the Istanbul Convention keeps the name ‘female genital mutilation,’ which some feminists have considered problematic (Gunning 1999, 47–48).

  60. See Chapter V IC.

  61. Articles 33–39 IC.

  62. Rejecting culturalisation does not mean advocating what Korteweg and Yurdakul call a “culture-blind approach” (2010, 4). This approach would ignore the anthropological insight that gendered violence “is deeply rooted in cultural understandings of gender and power” (Merry 2009, 16).

  63. 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”.

  64. 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”.

  65. Some feminists note that “the very invocation of the term ‘honour killing’ conjures racialized imageries” (Korteweg 2012, 138). For a critique of the ‘honour crime’ category, see Abu-Lughod (2011).

  66. 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.

  67. Ibid. para 313.

  68. Ibid. para 198. Emphasis added.

  69. 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”.

  70. Articles 12.3 and 18.3 IC.

  71. Article 12.3 IC.

  72. Article 18.3 IC.

  73. Ibid. The only example of vulnerable persons given in this provision is child victims.

  74. 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”.

  75. Ibid.

  76. Ibid. para 298.

  77. “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).

  78. Istanbul Convention, Explanatory Report, 12 April 2011, para 87.

  79. 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.

  80. Typology of Protection for Women Victims of Violence, 4 May 2009, CAHVIO (2009) 11, 3.

  81. 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.

  82. Ibid. paras 301–318. One may draw similar inferences from the Convention provisions. See Articles 59–60 IC.

  83. Istanbul Convention, Explanatory Report, 12 April 2011, paras 301–304.

  84. Ibid. para 317.

  85. Ibid. para 315.

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Acknowledgments

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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  1. Human Rights Center, Faculty of Law, Ghent University, Universiteitstraat 4, 9000, Ghent, Belgium

    Lourdes Peroni

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Peroni, L. Violence Against Migrant Women: The Istanbul Convention Through a Postcolonial Feminist Lens. Fem Leg Stud 24, 49–67 (2016). https://doi.org/10.1007/s10691-016-9316-x

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