The Istanbul Convention as a Response to Violence: Voices of a Young Generation
By Johanna Niemi & Lourdes Peroni, guest contributors
On 20 July 2020, Monash University’s Gender Peace & Security Centre hosted a seminar on Niemi, Peroni & Stoyanova (eds), International Law and Violence against Women: Europe and the Istanbul Convention, Routledge (2020). This posting is a summary of this seminar. The audio recording of the seminar is available here.
The Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence (Istanbul Convention), which opened for signature on 17 May 2011, has promoted many legal reforms but also sparked heated emotions. The book International Law and Violence against Women: Europe and the Istanbul Convention, edited by Johanna Niemi, Lourdes Peroni and Vladislava Stoyanova, was published on 8 March 2020, International Women’s Day. In drafting the book project and thinking about possible authors, we intended to give voice to a young generation of researchers with expertise in the field and from a diversity of European countries.
Photo: #IWD2018 - Mexico - Ending Violence Against Women. Source: UN Women Flickr/Dzilam Mendez
Violence Related to Inequality
The Istanbul Convention is part of broader developments in international law on the elimination of violence against women, including the 1994 Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women (Belèm do Parà Convention), the 1993 United Nations General Assembly Declaration on the Elimination of Violence against Women (DEVAW), the General Recommendations of the Committee that monitors the Convention on the Elimination of all Forms of Discrimination against Women (CEDAW), and the evolving case law of the European Court of Human Rights (ECtHR).
In their chapter, Lourdes Peroni and Lorena Sosa argue that the Istanbul Convention goes beyond previous international instruments in its demand for comprehensive and integrated policies and its emphasis on the relationship between inequality and violence. Drawing from feminist research on violence, the Istanbul Convention adopts a gendered understanding of violence in victim services and the judiciary responses. It encourages teaching about conflict resolution, mutual respect, non-violence and equality at all levels of education. Furthermore, the Convention requests that State Parties initiate a dialogue with the private sector to prevent violence against women.
The Istanbul Convention focuses on victims, protection and prevention, which is reflected in a dedicated chapter on criminal law and criminal procedure provisions that require States Parties to provide services to victims, including a 24/7 helpline, shelters and rape crisis centres. The Convention takes a similar approach to CEDAW in calling for changes in the social and cultural patterns that sustain the subordinate position of women in society. Stereotypical views are not present only in “other” cultures but require self-critical reflection on, for example, evidentiary requirements in all cultures.
Effects of the Convention
As of July 2020, thirty-four states have ratified the Istanbul Convention. An additional twelve states have signed it, but not yet ratified it. In 2017, the European Union also signed the Convention but has not ratified.
As Wojciech Burek explains in his chapter, the system of reservations in the Istanbul Convention is innovative. With the experience of countries having made an exceptional number of reservations to CEDAW, the Istanbul Convention allows reservations only to specific articles. However, some countries have made declarations that imply scepticism about the equality principle in the Convention. These declarations relate to attacks against the Convention by moral conservative and anti-LGBTI groups. The Turkish government, buoyed by these attacks, is considering leaving the Convention. Poland recently announced it would be taking steps to withdraw from the Convention.
These objections, however, are not a reflection of the actual wording of the Convention, which does not define family in any specific way. It uses the term gender but mostly in reference to men and women. The limited definition of gender is a recognised limitation of the Convention. In their chapter, Johanna Niemi and Verdu Sanmartin criticise the Convention for this binary understanding of gender and call for a broader interpretation.
The Istanbul Convention as a Benchmarking Tool
The Istanbul Convention has led to profound discussions and several legal reforms in State Parties. We take up here three examples of the discussions inspired by the Convention: the role of feminist organisations, the definition of rape and sanctions.
The Convention underlines the importance of comprehensive and integrated policies and services. It also underlines the important role of civil society organisations (CSOs) in the work and policy-making against violence. As Ulrika Andersson and Sara Bengtson show in their chapter, Swedish feminist CSOs have been vital in developing women’s shelters. However, the professionalisation of violence work promoted by the Convention, paradoxically, has undermined the role of feminist CSOs as municipalities provide services or outsource them after public tenders. In the spirit of the Istanbul Convention, attention must be paid to the quality of services, including the requirement that services adhere to a gendered understanding of violence.
The Istanbul Convention is quite clear on sexual crimes. Intercourse and other sexual interaction without the other participant’s consent must be a crime. One might expect this to be the case in European countries, especially since the European Court of Human Rights in 2003 adopted a similar stance in M.C. v Bulgaria. However, the criminal laws of many European countries still define rape as requiring the use or threat of violence and force. Minni Leskinen, in her chapter, follows the discussions and reforms that have taken place in Sweden, Germany and Iceland.
According to the Convention, sanctions must be effective, proportionate and dissuasive. While the Convention does not elaborate on what this means, Article 46 lists factors that make a crime aggravated. One of such factors is that the perpetrator is a partner or a family member. This factor marks a historical turn in attitude towards family violence. Historically, violence inside the family was not recognised as a crime or it was minimised so that state intervention was unlikely. The Istanbul Conventions consolidates a trend to take violence inside the family seriously.
Critique of the Convention
The consensus among the authors is that the Istanbul Convention is not a radical document. Several of the authors propose that more concrete measures are needed. While all of the contributors to the volume see the Istanbul Convention as a useful and needed tool in work on violence against women, two critiques emerge. First, several of the authors point out that many of the obligations in the Convention are vague and allow for different interpretations. As an example, Article 2.3 recognises that the Convention is applicable in times of peace and situations of armed conflict. Thus, the Convention extends the obligations of states beyond those defined in the Rome Statute and international humanitarian law to all forms of violence against women. However, the Convention does not specify how, for example, the obligation to provide services would be implemented during an armed conflict. The Group of Experts on Action against Violence against Women and Domestic Violence (GREVIO) as the monitoring body, therefore, has a vital role in the interpretation and implementation of the Convention.
A second common failing of the Convention set out by the authors is its failure to pay adequate attention to intersectionality and interacting structures of inequality. Daniela Alaattinoğlu, in her chapter, notes how forced sterilisations cause harm to whole communities, in addition to the harm inflicted on individual women. In her chapter on the migrant women, Fulvia Staiano argues that immigration laws expose women to violence by requiring that women are dependent on their husband’s migration status when seeking temporary immigration permits. On the Istanbul Convention itself, Ruth Mestre I Mestre argues that specific criminalisation of female genital mutilation can have the effect of stigmatising whole communities.
The editors and contributors to the volume argue that the Istanbul Convention is a much-needed tool to progress towards the elimination of violence against women while emphasising that much work still needs to be done. Realising the Convention’s potential depends mainly on the monitoring work of GREVIO, the implementation of the Convention by State Parties, and the continued support by civil society organisations.