Conceptualizing Femicide as a Human Rights Violation: State Responsibility Under International Law

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Conceptualizing Femicide as a Human Rights
Violation
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For all those who are affected by or fight femicide
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Conceptualizing
Femicide as a Human
Rights Violation
State Responsibility Under International Law
Angela Hefti
LL.M. (Yale), PhD (University of Lucerne)
Cheltenham, UK • Northampton, MA, USA
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© Angela Hefti 2022
This is an open access work distributed under the Creative Commons Attribution-
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v
Contents
Acknowledgments vi
List of abbreviations viii
1 Introduction to the concept of femicide 1
PART I FEMICIDE AND INTERNATIONAL CRIMINAL LAW
2 Femicide and (the laws of) war 37
3 Femicide and crimes against humanity 52
4 Femicide: Genocide by another name? 79
CONCLUSION TO PART I
PART II FEMICIDE AND HUMAN RIGHTS LAW
5 Femicide, the UN system and CEDAW 107
6 Femicide and the European human rights system 127
7 Femicide and the inter-American human rights system 167
8 Femicide and the African human rights system 222
CONCLUSION TO PART II
PART III A HUMAN RIGHTS CONCEPT OF FEMICIDE
AND STATE RESPONSIBILITY
9 Conceptualizing femicide as a human rights violation 240
10 No more impunity: Femicide and state responsibility 269
CONCLUSION TO PART III
Index 300
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vi
Acknowledgments
This book was written with the research support of the University of Lucerne,
Switzerland. First and foremost, I am deeply grateful for the whole-hearted
support, crucial advice and guidance of Martina Caroni. Her consistent encour-
agement and open-mindedness inspired me to look beyond black letter law,
and to integrate societal, philosophical, and much-debated feminist aspects.
I was privileged to learn from her brilliant mind how to continuously question
concepts and develop my own ideas. A special thank you to Michelle Cottier
and Vaios Karavas for their constructive and important comments, and to
Christoph Graber for encouraging me to conduct academic research. My grat-
itude also goes out to Julissa Mantilla Falcón who encouraged me to ask the
‘woman question,’ and to Catherine MacKinnon and Rebecca Cook for their
advice at the early stages of this project.
I am indebted to the Orville H. Schell Center for International Human
Rights at Yale Law School (YLS), where I completed this manuscript, and in
particular to Paul Kahn, Hope Metcalf, and Jim Silk for welcoming me there.
I am especially grateful to Jim Silk for encouraging me to think deeper and
challenging my work, and to Alice Miller for providing valuable insights into
sexual violence against men. I am deeply indebted to Elena Brodeala for her
wise advice and valuable feedback. At YLS’ library, I am thankful for Evelyn
Ma and Lucie Olejnikova’s gracious support. My appreciation also extends
to the participants of Yale’s Doctoral Workshop 2019 for their insightful
comments. For my colleagues at YLS: many thanks to Sebastian Bates,
Fernando Bracaccini, Frederic Constant, Sarah Ganty, Gili Farhadyan Sagiv,
Ji Ma, Eugenio García-Huidobro, and Xinyu Huan. Thank you to Maggie Mis,
Joachim Pierer and Brandon D. Stewart for their continuous engagement with
my work.
At the Max Planck Institute in Heidelberg, I thank Anne Peters and Mariela
Morales and my colleagues Raffaella Kunz, Rosa Möhrlein, Irene Domenici,
and Silvia Carta. I am also very grateful to Jorge Calderón Gamboa at the
Inter-American Court of Human Rights for introducing me to the topic of
femicide. At the European Court of Human Rights, I am grateful to Judge
Helen Keller for providing me with opportunities to enrich my research and to
Kresimir Kamber and Aysegul Uzun of the Research Division, and Alexander
Misic, Daniel Rietiker, and Sabrina Wittman of the Swiss and Austrian
Divisions. This book would not have been possible without the financial
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vii
Acknowledgments
support of the Swiss National Science Foundation and the many sponsors, such
as the Fulbright Foundation, the Janggen Pöhn Foundation, and the Robina
Foundation, which helped realize the research visits leading to this book.
I am extremely thankful for the friendship, academic, feminist, and other
support over the course of this work, especially that of Odile Ammann, Laura
Ausserladscheider Jonas, Eduardo Kapapelo, Jyothi Kanics and Stephanie
Motz from whom I have learned a great deal. Many colleagues supported me
in one way or another: Nicole Scheiber, Stéphanie Rossé, Christa Preisig and
Claudia Inglin. I am particularly thankful to Miluska Kooij for her excellent
editing and proofreading and James Tierney and Chelsea Kay for making
me a better writer. The anonymous reviewers’ helpful comments have made
a valuable contribution to this book. At Edward Elgar, I am most grateful to
Stephanie Tytherleigh, Sabrina Lynott-May and Sally Philip for this excellent
collaboration. Finally, thank you, my kind and inspiring family, for your unwa-
vering support and encouragement to pursue this work.
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viii
Abbreviations
ACHR American Convention on Human Rights
AP Additional Protocol
AU African Union
CAT Convention Against Torture
CEDAW Convention on the Elimination of Discrimination
Against Women
CIL Customary International Law
CoE Council of Europe
CSW Commission on the Status of Women
DEDAW Declaration on the Elimination of Discrimination
Against Women
DEVAW Declaration on the Elimination of Violence Against
Women
DRC Democratic Republic of the Congo
DyRiAs Dynamic Risk Analysis System
ECCC Extraordinary Chamber in the Courts of Cambodia
ECHR European Convention on Human Rights
ECtHR European Court of Human Rights
EoC Elements of Crime
EU European Union
FGM Female genital mutilation
GREVIO Group of Experts on Action against Violence against
Women and Domestic Violence
HRC Human Rights Committee
IACHR Inter-American Commission on Human Rights
IACPPT Inter-American Convention to Prevent and Punish
Torture
IACtHR Inter-American Court of Human Rights
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Abbreviations
ICC International Criminal Court
ICCPR International Covenant on Civil and Political Rights
ICESCR International Covenant on Economic, Social and
Cultural Rights
ICJ International Court of Justice
ICL International Criminal Law
ICRC International Committee of the Red Cross
ICTR International Criminal Tribunal for Rwanda
ICTY International Criminal Tribunal for the former
Yugoslavia
ICW Inter-American Commission of Women
IHL International Humanitarian Law
IHR International Human Rights Law
ILC International Law Commission
ILO International Labor Organization
IMT International Military Tribunal
IMTFE International Military Tribunal for the Far East in Tokyo
ISIS Islamic State in Iraq and Al-Sham
NAFTA North America Free Trade Agreement
NDP National Democratic Party
NGO Non-Governmental Organization
OAS Organization of American States
PKK Kurdistan Workers’ Party
PRF Patriotic Resistance Front
SARA Spousal Assault Risk Assessment
SC Security Council
SCSL Special Court for Sierra Leone
UDHR Universal Declaration of Human Rights
UK United Kingdom
UN United Nations
UNGA United Nations General Assembly
US United States
VAW G Violence Against Women and Girls
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x Conceptualizing femicide as a human rights violation
VCLT Vienna Convention on the Law of Treaties
WHO World Health Organization
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1
1. Introduction to the concept of
femicide
Being female is dangerous. Over the past several decades, the risks women
and girls face—of being abducted, raped, killed, and sexually enslaved—have
risen dramatically.1 A United Nations (UN) report documented the extent of
the peril women are confronted with at the hands of their partners in their
own homes.2 Other accounts detail how terrorist groups predicated on sexist
ideologies, such as the Islamic State in Iraq and Al-Sham (ISIS) and Boko
Haram, deliberately target women and girls as commodities to trade and
exploit sexually. Yet, many States have allowed violence against women and
girls (VAWG) to happen, failing to stop it in its tracks. Fighting back, women
and girls have mobilized across the world, such as in the #MeToo movement
and the #NiUnaMenos [Not one less] and similar campaigns to protest the
indifference with which crimes directed at women and girls are treated.3 Yazidi
women and girls who escaped ISIS captivity and sexual enslavement exclu-
sively aimed at women and girls, relentlessly seek redress—because ‘justice
is all Yazidi have now.’4 Often enough, however, the law has failed to capture
the sexist ideology and violence which specifically target women and girls.
Consequently, human rights bodies have struggled to identify and adjudicate
systemic harm inflicted on women.
I advance the concept of femicide as a female-specific international human
rights violation.5 The present book exposes the different aspects of femicide:
a pattern of multiple acts targeting a female social group based on their gender,
1 Jeremy Sarkin, ‘A Methodology to Ensure that States Adequately Apply Due
Diligence Standards and Processes to Significantly Impact Levels of Violence Against
Women Around the World’ (2018) 40(1) Human Rights Quarterly 1–36 at 3.
2 UN Office of Drugs and Crime, ‘Global Study on Homicide. Gender-related
Killings of Women and Girls’ (November 2018), www .unodc .org/ documents/ data -and
-analysis/ GSH2018/ GSH18 _Gender -related _killing _of _women _and _girls .pdf. All
online sources were accessed 30 October 2021.
3 #MeToo, https:// metoomvmt .org/ ; #Ni Una Menos, http:// niunamenos .org .ar/ ;
#Nous Toutes, www .noustoutes .org/ .
4 Nadia Murad, The Last Girl: My Story of Captivity, and My Fight Against the
Islamic State (Tim Duggan Books 2018) 304.
5 See Consuelo Corradi et al., ‘Theories of Feminicide and their Significance for
Social Research’ (2016) 64(7) Current Sociology 975–995 at 983 and 988.
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2Conceptualizing femicide as a human rights violation
with the effect of objectifying, subordinating, humiliating, or instilling fear
in women, ultimately placing women and girls in a subordinate social status,
where such violence remains unpunished by the State. Committed by non-state
actors, VAWG has traditionally been viewed as a domestic and family matter.
This work clarifies that States are responsible for femicide when they tolerate
and facilitate a system in which perpetrators can harm a female social group
with impunity.6 Using the prism of ‘radical feminist theory,’ spearheaded by
MacKinnon,7 this book critiques elements of relevant international crimes and
human rights violations, employing some of them to conceptualize femicide.
Since radical feminist theory considers unequal power relations between men
and women as the main cause of violence, domestic violence being the ‘domi-
nation in an extreme form,’ it is best suited to address femicide.8
No consensus exists on what acts constitute ‘femicide.’ In colloquial speech,
the term femicide is commonly used to refer to the murder of a woman because
she is a woman.9 However, the concept of femicide should extend beyond the
killings of women and girls as the reality is more complex than that. In practice,
the victim10 is often raped and abused before she is killed. Her case is not taken
seriously by police officers who blame her. At the least, this causes delays in
investigations of crimes against her; at worst, she is not rescued when she is still
alive. I propose to conceptualize femicide in broader terms to cover the many
other human rights violations, such as the right to access to justice, the prohi-
bition of torture, and other rights, aside from killings. Moreover, the current
conceptualization of the right to life is devised to cover instant killings (mostly
6 On State accountability for systemic violence against women, see Hilary
Charlesworth, Christine Chinkin and Shelley Wright, ‘Feminist Approaches to
International Law’ (1991) 85(4) The American Journal of International Law 613–645
at 645; see also Alice Miller, ‘Sexuality, Violence against Women, and Human Rights:
Women Make Demands and Ladies Get Protection’ (2004) 7(2) Health and Human
Rights 17–47 at 24.
7 See discussions on other feminist theories in Nancy Levit and Robert R. M.
Verchick, Feminist Legal Theory: A Primer (New York University Press 2006) 15–41.
See also Alice Edwards, Violence against Women under International Human Rights
Law (Cambridge University Press 2011) 36.
8 Levit and Verchick (n 7) 23.
9 E.g., Alberto Nájar, ‘Feminicidio en México: Mara Castilla, el asesinato de una
joven de 19 años en un taxi que indigna a un país violento’ BBC (18 September 2017),
http:// www .bbc .com/ mundo/ noticias -america -latina -41303542.
10 The more appropriate term is ‘survivor,’ which awards agency to the person sub-
jected to violence. However, as this term implies that the person remained alive, I use
the term ‘victim’ where appropriate. See Beth Goldblatt, ‘Violence Against Women
and Social and Economic Rights, Deepening the Connections’ in Susan Harris Rimmer
and Kate Ogg (eds), Research Handbook on Feminist Engagement in International Law
(Edward Elgar 2019) 363.
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3
Introduction to the concept of femicide
targeting men and boys), rather than slow-death measures usually committed
against women in femicide (such as female genital mutilation [FGM] and
severe psychological harm). This type of violence, while not instantly lethal,
may cause untimely death years later, for instance because of (complications
on account of) injuries inflicted through rape or FGM. If we were to limit femi-
cide to killings, other acts of violence would find no recourse; feminist critique
that women are required to comply with male norms, and fit into existing rights
devised for men, would go unaddressed.11 Furthermore, the aim of femicide is
not the physical extermination of women and girls, as is perhaps implied by
a focus on killings, but the subordination of an entire group of human beings
through gender-based violence. Instead, the intersectional subordination of the
female social group in patriarchal societies is at stake. Femicide, as conceptu-
alized in this book, is composed of gender-based violence—violence directed
against a woman because she is a woman, or which affects women dispropor-
tionately. Not all acts of gender-based violence can be qualified as femicide.
Only extreme forms of gender-based violence would fall within the ambit of
the femicide concept. I propose to measure the severity by reference to either
the prohibition of torture and/or the right to life, both critiqued from a feminist
perspective. That said, I conceptualize femicide in line with the architecture of
the genocide framework, which may include the murder of a woman—among
many other acts—as the method by which the female social group is subordi-
nated in society. Each chapter explains one or several aspects of femicide and
builds on the previous one. I differentiate femicide from other human rights
violation by its composition of a multi-faceted, group-related human rights
violation, including severe violence and access-to-justice issues. In line with
these clear parameters, the proposed femicide concept holistically responds to
its social reality.
A paradigmatic example of femicide relates to the waves of VAWG in
Ciudad Juarez, Mexico, where the term has been used to denote epidemic
disappearances, sexual violence, rapes, and killings of the female social group
since the 1990s.12 In a typical femicide case in Ciudad Juarez, the victim goes
missing—e.g., after leaving school, the workplace, or a party. She is often held
in captivity, raped, sexually mutilated (parts of her genitals and breasts are
removed), and subjected to extreme pain and suffering before she is killed. 13
11 Ibid.
12 González et al. v. Mexico (Cotton Field Case), Preliminary Objection, Merits,
Reparations, and Costs, Inter American Court of Human Rights Series C No 205 (16
November 2009) paras 127 and 228–231; Fernando Mariño, ‘Una Reflexión sobre la
posible Configuración del Crimen de Feminicidio’ in Fernando Mariño et al. (eds),
Feminicidio, El Fin de la Impunidad (Tirant lo Blanche 2012) 113.
13 See Cotton Field Case (n 12) para. 277.
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4Conceptualizing femicide as a human rights violation
A few days later, her dismembered and defiled body, marked with misogynist
writings like ‘whore,’ is dumped somewhere in the public space. When her
family members report their loved one’s abduction or killing, the authorities
typically blame the woman or girl for what happened because of the way she
dressed or her lifestyle.14 Consequently, the authorities either delay the investi-
gation or remain inactive altogether. The case is never solved.15 At the outset,
femicide was considered endemic to Mexico, and even Ciudad Juarez more
specifically, yet other iterations of femicide across the world involve similar
human rights violations.16
As an ancient and global problem, the issue of femicide merits the attention
of international law. The modern iteration of femicide echoes the historical
persecution and execution of thousands of women and girls as witches in the
sixteenth and seventeenth centuries.17 In the contemporary context, the term
femicide has been associated with the deaths of women and girls who perished
in Ciudad Juarez, especially after the Inter-American Court of Human Rights’
(IACtHR) seminal case—González et al. v. Mexico (also known as the Cotton
Field Case, named after the place where assassinated women and girls’ body
fragments were found).18 Widespread domestic violence in Austria, France,
Italy, and Switzerland also makes femicide an issue of concern in Europe.19
14 Ibid., para. 223.
15 Inter-American Commission on Human Rights (IACHR), Report on the Situation
of the Rights of Women in Ciudad Juarez, Mexico: The Right to be Free from Violence
and Discrimination (7 March 2003) Doc 44 OEA/Ser.L/V/II.117 para. 4 [hereinafter
IACHR Report on Ciudad Juarez]; Cotton Field Case (n 12) paras 199–208; Rebecca
Cook and Simone Cusack, Gender Stereotyping: Transnational Legal Perspectives
(Pennsylvania University Press 2010) 9.
16 Adriana Carmona López et al., ‘Feminicide in Latin America and the Movement
for Women’s Rights’ in Rosa-Linda Fregoso and Cynthia Bejarano (eds), Terrorizing
Women, Feminicide in the Americas (Duke University Press 2010) 160 and 163.
17 The witch craze presents similarities to modern-day femicide and its triggers.
A witch was described as a woman who was responsible for evil in the community,
including crop burning, death, and sterility. Accordingly, women were seen as a ‘poten-
tial threat to the general well-being of the populace and in need of control.’ Times of
unrest, disaster, dire economic circumstances, and instability led to an outburst of vio-
lence against women in the middle ages, when the female social group outnumbered
the male population. As a result, numerous unmarried and independent women (who
lived on almost equal basis with men) were economically challenging men’s role as
providers in a context of already limited resources. Marianne Hester, ‘The Witch-craze
in Sixteenth- and Seventeenth- Century England as Social Control of Women’ in Jill
Radford and Diana Russell (eds), Femicide: The Politics of Women Killing (Twayne
Publishers 1993) 28 and 30.
18 Cotton Field Case (n 12) paras 127, 137–146 and 228–231; Mariño (n 12) 113.
19 Daniela Bandelli, Feminicide, Gender and Violence: Discourses and
Counterdiscourses in Italy (Palgrave Macmillan 2017); Expert Group Meeting on
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5
Introduction to the concept of femicide
Despite its prevalence and myriad forms across the world—e.g., the enslave-
ment and rape of Yazidi women in Syria20 the abductions of girls by Boko
Haram in Nigeria,21—femicide has not yet been recognized as a distinct human
rights violation.22 The term femicide is missing from the international and
regional human rights law framework; it is used and referenced inconsistently
by international organizations and national legislators.23
The violence inherent in femicide is only partially recognized in human
rights law. At first glance, the ‘international bill of rights’—consisting primar-
ily of the Universal Declaration of Human Rights (UDHR), the International
Covenant on Civil and Political Rights (ICCPR), and the International
Covenant on Economic, Social and Cultural Rights (ICESCR)—appears
to cover women and girls’ human rights violations.24 However, while these
human rights instruments entail non-discrimination principles ensuring that
women and girls are not being discriminated against on the basis of their
gender, they do not reflect the ways women and girls are specifically harmed.
Many forms of gender-based violence—which I call ‘acts of femicide’ to
accentuate their fundamental role and function in femicide—such as forced
marriage, FGM, sexual slavery, human trafficking, domestic violence, honor
Gender-Related Killings of Women (organized by the UN Special Rapporteur on
Violence against Women, its Causes and Consequences, Rashida Manjoo), ‘Femicide
and Feminicide in Europe, Gender-motivated Killings of Women as a result of Intimate
Partner Violence (12 October 2011).
20 Human Rights Council, Report of the Office of the United Nations High
Commissioner for Human Rights on the Human Rights Situation in Iraq in the light of
Abuses committed by the so-called Islamic State in Iraq and the Levant and Associated
Groups, A/HRC/28/18 (13 March 2015) paras 35–43.
21 Human Rights Watch, ‘Those Terrible Weeks in their Camps’ (27 October 2014)
http:// features .hrw .org/ features/ HRW _2014 _report/ Those _Terrible _Weeks _in _Their
_Camp/ assets/ nigeria1014web .pdf; UN General Assembly, Report of the Special
Rapporteur on Violence Against Women, its Causes and Consequences, Rashida
Manjoo, A/66/215 (1 August 2011) para. 37.
22 See Secretary General in Academic Council on the United Nations System,
Feminicide, A Global Issue that Demands Action, Vol. II, Vienna (2014) https:// acuns
.org/ wp -content/ uploads/ 2014/ 07/ Femicide -Publication -2014 -FINAL .pdf at 5; Report
of the Special Rapporteur on Violence Against Women, its Causes and Consequences
(Rashida Manjoo), A/HRC/29/27 (10 June 2015) para. 63 [hereinafter Manjoo Report
2015].
23 Hilda Morales Trujillo/Grupo Guatemalteco de Mujeres, ‘Ley contra el Femicidio
y Otras Formas de Violencia contra la Mujer, Comentarios y Concordancias’ (May
2010), 130 http:// ggm .org .gt/ wp -content/ uploads/ 2017/ 04/ monitoreoL eyContraEl
Femicidio1 .pdf.
24 See Thomas Buergenthal et al., Human Rights in a Nutshell, 5th edition (West
Publishing 2017) 8–39; Hilary Charlesworth and Christine Chinkin, The Boundaries of
International Law, a Feminist Analysis (Juris Publishing 2000) 200 and 212.
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6Conceptualizing femicide as a human rights violation
killings, dowry-related murders, and rape—are not at all, or only regionally
addressed in human rights law.
Although human rights law promises to grant universal protection, its focus
has been on issues of ‘public concern,’ and thereby on acts directly committed
by state actors. Domestic violence is the paradigmatic example of violence
which does not fit the narrative of so-called ‘public’ violence. As a matter
which is ‘cultural, private and individual,’ domestic violence often goes
unpunished or is left to the patriarch’s discretion.25 One of the main difficulties
in addressing femicide is the dichotomy between the strong legal shield of
family life preventing state interference, and the need for state intervention in
a unit where violence against women is likely to take place.26 Holmes refers
to this vacuum of family life as a ‘prison’ where women can be enslaved, as
they are put to work in the fields or at home, and are subject to sexual exploita-
tion.27 Only when women and girls are tortured in detention or executed in
public, i.e., when the mistreatment matches that suffered by men and boys,
human rights law adequately protects them.28 As a private issue, femicide has
been perceived as a domestic affair best left to the discretion of States.29 This
dichotomy between the overt protection against interference in family life ‘by
society and the State’ and the need for state intervention where violence takes
place, is one of the main challenges in conceptualizing femicide.30
Another example where human rights law has inadequately responded to
femicide concerns one of its essential ingredients: the prohibition of torture.
Feminist legal scholars MacKinnon, Chinkin, and Charlesworth explain that
what is perpetrated outside the home, e.g., torture of prisoners or executions,
falls within the ambit of human rights law.31 Charlesworth illustrates this
with the example of torture, which is not only explicitly prohibited in various
conventions but also enjoys the status of jus cogens.32 In its strict definition,
25 Catharine MacKinnon, Are Women Human? And Other International Dialogues
(Harvard University Press 2007) 17–18 and 41–43.
26 Ibid., 192–193.
27 Helen Bequaert Holmes, ‘A Feminist Analysis of the Universal Declaration of
Human Rights’ in Carol Gould (ed), Beyond Domination, New Perspectives on Women
and Philosophy (Roman & Allanhelm Publishers 1983) 255–257.
28 MacKinnon (n 25) 181.
29 Ibid., 4–5 and 41–42; Charlesworth, Chinkin and Wright (n 6) 180, 190 and 626;
see also International Criminal Tribunal for Rwanda (ICTR), Prosecutor v. Akayesu
(Judgment) ICTR-96-4-T (2 September 1998), paras 513 and 731.
30 Celina Romany, ‘Women as Aliens: A Feminist Critique of the Public/Private
Distinction in International Human Rights Law’ (1993) 6 Harvard Human Rights
Journal 87–125 at 105.
31 MacKinnon (n 25) 181; see also Charlesworth, Chinkin and Wright (n 6) 629.
32 Charlesworth, Chinkin and Wright, ibid.
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Introduction to the concept of femicide
torture presupposes the involvement of a public official and thus concerns
the public sphere. Although rape can constitute torture if certain criteria are
met, the Convention Against Torture (CAT) only recognizes rape as torture
if committed in the presence of a public official.33 As explained later, human
rights bodies appear reluctant to recognize rape as torture when committed in
the private sphere, while they do so when state officials—e.g., military per-
sonnel —rape women and girls. Committed at a woman’s home, rape rarely
constitutes a violation of her human rights.34
International criminal law (ICL) has similarly excluded crimes against
women and girls from its application. Women and girls are only part of the
targeted group in genocide to the extent that they belong to a persecuted
ethnicity,35 but attacks based predominantly upon gender are not covered by
the definition of genocide.36 ICL wrestles with the question of how to ade-
quately address crimes against women because they are women. For example,
widespread violence against women and girls is covered by the crime against
humanity provision, and rape can now constitute a form of genocide. However,
under these crimes, the group-related aspect of femicide (targeting the female
social group) is neither addressed by the crimes against humanity element of
‘civilian population,’ nor the genocide definition’s ‘national, ethnic, religious,
and racial group.’ Finally, the crimes against humanity provision tends to
require state agents to actively orchestrate or perpetuate harm through a state
policy or plan.37 Acts of femicide are however rarely planned, yet they are
widespread since unpunished acts of violence may be multiplied.38 Should
crimes against humanity be interpreted to require a state policy, acts of femi-
cide would go unpunished.
Against this backdrop, some scholars have questioned whether femicide
could be framed as genocide by another name or as a crime against female
humanity.39 Others propose including gender as a protected group in genocide
in addition to the currently protected national, ethnical, racial, and religious
33 Ibid.
34 Ibid.
35 MacKinnon (n 25) 181.
36 Ibid.
37 Charlesworth, Chinkin and Wright (n 6) 629.
38 Mariño (n 12) 114; Charlesworth and Chinkin (n 24) 335; Andrea Dworkin,
Woman Hating (Penguin Books 1974) 93; Ana Messuti, ‘La Dimension Jurídica
Internacional del Feminicidio’ in Graciela Atencio (ed), Feminicidio, el Asesinato de
Mujeres por ser Mujeres (Catarata 2015) 48–49. See also Ayaan Hirsi Ali, ‘Women Go
Missing by the Millions’ New York Times (24 March 2006) www .nytimes .com/ 2006/
03/ 24/ opinion/ women -go -missing -by -the -millions .html.
39 See, e.g., Marcela Lagarde y de los Rios, ‘Preface’ in Fregoso and Bejarano (n
16) xv–xvi.
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8Conceptualizing femicide as a human rights violation
groups.40 The literature dwells minimally on the structural implications of
inequality and challenges typical to femicide, such as the interplay of many
human rights violations. Most research is confined to ICL implications of
sexual violence and rape as vehicles of a genocidal campaign or a crime against
humanity.41 Some of these studies examine to what extent sexual crimes fit into
existing legal categories and if these categories might be enlarged to include
‘gender’ and ‘sex crimes,’ thereby relying on existing structures of interna-
tional law.42
Feminist legal scholars, such as Charlesworth, Chinkin, and MacKinnon,
have challenged these approaches and, instead, examined the structures of
international criminal and human rights law as it applies to women through
the lens of feminist legal theory. In an ideal world, I would like to dismantle
the whole system to conceptualize new human rights to respond to femicide.
However, the immediate practical implementation of the femicide concept
must be kept in mind. Accordingly, I contend myself with building on feminist
legal approaches to propose systemic modifications of relevant elements of
existing human rights and international crimes to conceptualize femicide as
a human rights violation.43 Of equal importance is my constant reference to
state responsibility for systemic violence against the female social group.44
This volume is organized in four parts. This chapter examines the concept
of femicide in social contexts and considers current approaches to femicide, its
conceptual differences to other human rights violations, and sets out reasons
for why an international legal response is required. Part I examines femicide
through the lens of ICL. I demonstrate that existing structures of ICL provide
40 Alona Hagay-Frey, Sex and Gender Crimes in the New International Law: Past,
Present, and Future (Brill Nijhoff 2011) 131; see also Monika Ambrus, ‘Genocide and
Discrimination: Lessons Learned from Discrimination Law’ (2012) 25 Leiden Journal
of International Law 935–954 at 937; Cf. Alex Alvarez, Genocidal Crimes (Routledge
2010) 26.
41 Anne-Marie De Brouwer, Supranational Criminal Prosecution of Sexual
Violence: The ICC and the Practice of the ICTY and the ICTR (Intersentia 2005); Usta
Kaitesi, Genocidal Gender and Sexual Violence: The Legacy of the ICTR, Rwanda’s
Ordinary Courts and Ggacaca Courts (Intersentia 2014); see also Awet Hailezgi
Tefera, ‘The Elements of Rape as a Crime of Genocide in International Criminal
Law, Case Analysis’ (2013) 2 Mekelle University Law Journal 35–65; Kelly Askin,
‘Prosecuting Wartime Rape and other Gender-Related Crimes under International
Law, Extraordinary Advances, Enduring Obstacles’ in Sari Kouvo and Zoe Pearson
(eds), Gender and International Law (Routledge 2014) 177–246 [hereinafter Askin,
‘Prosecuting Wartime Rape’].
42 E.g., Hagay-Frey (n 40) 111.
43 See Charlesworth, Chinkin and Wright (n 6) 645; see also Miller (n 6) 24.
44 On state accountability for systemic atrocities against women, Charlesworth,
Chinkin and Wright (n 6) 645; see also Miller (n 6) 24.
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Introduction to the concept of femicide
limited flexibility to recognize and respond to the general context of the
commission of femicide beyond organized state action when harm is directed
against women because they are women. I contend that some harm against
women is left unaddressed in statutory language and that even progressive
international crimes need to be reformed to better address gender-based
violence against women and girls. Chapter 2 addresses femicide and armed
conflict in broad strokes. It shows that historical attempts to outlaw rape in
war have created precedents to criminalize acts of femicide, such as rape, and
engage state responsibility. The primary point of inquiry in seeking a concept
of femicide in international law is provided in this chapter. Chapter 3 analyzes
the elements of crimes against humanity to consider to what extent some
potentially promising aspects of the framework of this crime, such as the con-
textual element and its underlying acts, may assist in conceptualizing femicide.
In Chapter 4, an inquiry is made whether femicide is a form of genocide and
the extent to which gender can be included as a protected group in addition to
the currently protected national, ethnical, racial, and religious groups.
Part II exposes women and girls’ limited protection from femicide under
international human rights law, and identifies the human rights typically
breached in femicide.45 Chapter 5 conveys a broad understanding of the
development of women’s rights at the United Nations (UN) level and then
delves into the specific focus of the lens of discrimination through which the
Convention on the Elimination of Discrimination against Women (CEDAW)
Committee views domestic violence, rape, and other acts of femicide. Chapter
6 considers the European Court of Human Rights’ (ECtHR) stagnant approach
to recognizing rape committed by non-state actors as torture or integrating
a ‘gender perspective’ in investigating crimes against women and girls.
Furthermore, it sheds light on the Osman test for determining state responsi-
bility by inaction. Chapter 7 studies the Inter-American approach to femicide,
which is most sympathetic to identifying and recognizing gendered harm, such
as torture. Chapter 8 addresses the African human rights system’s notion of
human and peoples’ rights in connection with the collectively targeted female
social group in femicide.
Part III is the integrative and concluding part of this book. Based on the
previous analysis, I argue that femicide functions as a multi-faceted human
rights violation, and that impunity is a crucial aspect of femicide. Chapter 9
advances normative conclusions for the recognition of femicide as a distinct
45 Some of the case law examined is discussed in Maria Sjöholm, Gender-Sensitive
Norm Interpretation by Regional Human Rights Law Systems (Brill 2017); Lorena
Sosa, ‘Inter-American Case Law on Femicide: Obscuring Intersections?’ (2017) 35(2)
Netherlands Quarterly of Human Rights 85–103.
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10 Conceptualizing femicide as a human rights violation
human rights violation. A femicide concept is constructed, drawing on existing
human rights violations to make it practical. Chapter 10 outlines state respon-
sibility for femicide and proposes several avenues States can take to prevent
femicide.46 The Conclusion recapitulates the main points and spotlights the
harm women and girls suffer from femicide in international law.
A FEMINIST HUMAN RIGHTS LENS
The prism through which I conceptualize femicide is a feminist human rights
one. I use a feminist methodology to critique the structure of international core
crimes and relevant human rights violations applicable to femicide. First and
foremost, feminist legal scholars ‘emphasize the rather obvious (but unspoken)
point that nearly all public laws in the history of existing civilization were
written by men. […] [T]hat women and men should have political, social,
and economic equality.’47 Accordingly, research methods are feminist when
they ‘are combined in struggle to eradicate women’s subordinate status.’48
However, feminist approaches disagree whether it is best to advance women’s
rights via the inclusion of women in existing legal structures or to overhaul
the current system and replace it with adequate structures.49 I embrace both
approaches. I propose systemic modifications in relevant elements of human
rights and ICL to conceptualize femicide. Considering the limits of such an
endeavor, I also rely on existing human rights violations to make the femicide
concept operable in practice.50
Feminist legal methods scrutinize the political and social factors which
underlie judicial reasoning, including historical background and social context.
They recognize that the researcher’s own experience influences the construc-
tion of her work.51 Feminist methods include nuanced abstract reasoning as
they try to include many different viewpoints,52 but they do not claim to be
46 See also Charlesworth, Chinkin and Wright (n 6) 24.
47 Levit and Verchick (n 7) 15–16.
48 Leslie Bender, ‘A Lawyer’s Primer on Feminist Theory and Tort’ in Kelly
Weisberg (ed), Feminist Legal Theory, Foundations (Pennsylvania University Press
1993) 58. See also Dianne Otto, ‘Feminist Approaches to International Law’ in
Anne Orford and Florian Hoffmann (eds), The Oxford Handbook of the Theory of
International Law (Oxford University Press 2016) 490.
49 Ibid.
50 See Doris Buss, ‘Performing Legal Order: Some Feminist Thoughts on
International Criminal Law’ (2011) 11 International Criminal Law Review 409–423 at
423.
51 Katharine Bartlett, ‘Feminist Legal Methods’ (1990) 104(4) Harvard Law
Review 828–888 at 862.
52 Ibid., 858.
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Introduction to the concept of femicide
‘objective’ in the conventional sense, as ‘objectivity’ has long been associated
with ‘a denial of the existence or potency of sex inequality that tacitly partici-
pates in constructing reality from the dominant point of view.’53
Conceptualizing femicide with feminist lenses matters to deconstruct the
implicit and explicit biases in international crimes and human rights violations
framed in patriarchal contexts which are contrary to the interests of women.54
Two main methods legitimize the arguments for the construction of femicide
as a human rights violation: the woman question and feminist practical legal
reasoning. I also refer to a third: consciousness-raising. The woman question
asks whether an ostensibly neutral or objective rule or practice excludes the
experiences of women and girls. If answered in the affirmative, the next step
is to seek ways to rectify this exclusion.55 Asking the woman question in the
context of femicide exposes the hidden effect of a state policy requirement
which does not on the face of it discriminate women and girls, but which
strictly interpreted excludes them from the purview of crimes against human-
ity. The woman question supports an argument for abandoning the policy
requirement so that women’s position in relation to international crimes would
not be subordinated any longer.56 The lack of focus on coercive circumstances
in rape definitions in ICL also stems from the law’s occupation with the per-
petrator’s view––did he think that she tacitly or explicitly consented?––and
brushes aside a woman’s concern––did she feel it necessary to feign consent
because she feared for her life?57 At the same time, the woman question serves
to query how the Osman standard, discussed in Chapter 10, applies and/or
excludes state responsibility for women and girls.58 This feminist question
helps identify possible avenues for human rights law to deal with women’s
rights violations as they occur in femicide.59
Feminist practical legal reasoning considers factors like the context and
history of a provision, and the legal and social contexts in which a rule is
implemented.60 Specific circumstances of a new case, such as persecution
based on gender, may dictate the reinterpretation of rules.61 In this work,
53 Catherine MacKinnon, ‘Marxism, Method, and the State: Toward Feminist
Jurisprudence’ (1983) 8(4) Chicago Journal 635–658 at 636. See also Otto (n 48) 490.
54 See on structural bias critique, Karen Engle, ‘International Human Rights and
Feminisms: When Discourses Keep Meeting, in International Law’ in Doris Buss and
Ambreena Manji (eds), Modern Feminist Approaches (Oxford University Press 2005).
55 Bartlett (n 51) 837 and 852.
56 Ibid., 843.
57 See ibid., 842.
58 See ibid., 837–842.
59 See ibid.
60 Ibid., 851–853.
61 See ibid., 853.
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12 Conceptualizing femicide as a human rights violation
feminist practical legal reasoning is used to argue for the inclusion of gendered
groups in the genocide framework, based on a changed socio-cultural con-
text.62 In doing so, light is shed on women’s present interests and their historic
subordination is accounted for.63
I cautiously engage in ‘consciousness-raising,’ an interactive method that
exposes individual women and girls’ discourse to emphasize and exemplify
women’s oppression through story-telling.64 This method reveals patterns
of suffering, and contributes to a theory of the practice which violated these
women’s rights, such as the rhythmic songs of African women, an interactive
multimedia recording of the roughly 300,000 women’s experience of forced
sterilization by the Peruvian Alberto Fujimori regime in the 1990s.65 While
empowering for women individually and collectively, this method is subject
to errors, since individual voices bear the risk of being interpreted to repre-
sent a very diverse group of women and girls.66 Moreover, the present book
is limited by its legal nature, which cannot fully incorporate all women’s
experiences.
I view femicide through the lens of human rights law, rather than ICL. I rec-
ognize that the most specific and oldest responses to gender-based violence
stem from international humanitarian law (IHL) and have been developed
in ICL. I could not therefore possibly ignore the vast research available on
IHL/ICL and would like to provide a holistic view of the femicide concept.
A human rights approach empowers women and girls who are at the center of
the judicial process by means of which they attempt to remedy their situation.
By bringing a case before an international human rights body, women and girls
can seek justice previously denied at the domestic level. They are not solely
seen as victims but are awarded full agency. By contrast, victims of sexual
violence have little control over international criminal proceedings, as an
international criminal investigation is in the hands of the prosecutor;67 a rape
victim may merely be asked to provide testimony. Moreover, ICL punishes
perpetrators individually, but does not transform the underlying structures
62 Ibid., 855.
63 Ibid., 861–862.
64 Sylvia Tamale, Decolonialization and Afro-Feminism (Daraja Press 2020)
273; see also Marie Ashe, ‘Zig-Zag Stitching and the Seamless Web: Thoughts
on “Reproduction” and the Law’ in Kelly Weisberg (ed), Feminist Legal Theory,
Foundations (Pennsylvania University Press 1993) 582–593; Bartlett (n 51) 864.
65 Tamale, ibid.; The Quipu Project https:// interactive .quipu -project .com/ #/ en/
quipu/ intro.
66 Bartlett (n 51) 864.
67 Art. 13 Statute of the International Criminal Court (Rome Statute) (adopted 17
July 1998, entered into force 1 July 2002) 2187 UNTS 38544.
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13
Introduction to the concept of femicide
which facilitate the commission of femicide.68 With its focus on the victim and
the perpetrator, there are limits to how it can surface the complex and inter-
sectional ways women and girls are harmed.69 As it requires States to redress
a human rights violation, human rights law is well suited to rehabilitate the
structures that perpetuate femicide. Of course, I must bear in mind the limits
of substantive changes to the current human rights project with its structural
bias.70 For one, the case law of international courts only slowly develops and
incorporates relevant changes. My focus on the State as ‘the central custodian
of women’s rights,’ cannot take account of various forms of power, which are
not state-centric.71 Despite its limitations (e.g., the definition of torture and the
right to life, which are male-centered and fail to cover many forms of non-state
actor violence), I consider that the human rights framework can and ought to
be adapted to cover such harm. The present work, while bearing in mind these
limits, considers human rights law a formidable, albeit not perfect, tool in
advancing women’s interests.72
CAVEATS TO CONCEPTUALIZING FEMICIDE
This work begins with caveats to conceptualizing femicide. The first caveat
relates to the practical reality of implementation the proposed femicide
concept. Further efforts are required to convince States of the utility of the
femicide approach. Even if human rights bodies apply the proposed concept
of femicide, domestic implementation remains a concern.73 However, the
term femicide is not simply mentioned in an international instrument to which
States can pay lip service. Rather, this work explains the meaning of femicide,
68 See Art. 25 Rome Statute; Buss (n 50) 416.
69 See Buss, ibid., 418, and Karen Engle, ‘A Genealogy of the Centrality of
Sexual Violence in Armed Conflict’ in Fionnuala Ní Aoloáin et al. (eds), The Oxford
Handbook of Gender and Conflict (Oxford University Press 2018).
70 Ratna Kapur, ‘Gender, Sovereignty and the Rise of Sexual Security Regime in
International Law and Postcolonial India’ (2013) 14 Melbourne Journal of International
Law 317–345 at 325.
71 Ibid., 320.
72 See Kate Ogg and Louise Craker, ‘Feminist Approaches to Peace and Conflict,
International Human Rights Law Disappearing and Re-Emerging?’ in Fionnuala Ní
Aoloáin et al. (n 69) 193.
73 E.g., the ECtHR cannot order what measures States must take to remedy
a human rights violation. Mark Villiger, ‘Binding Effect and Declaratory Nature of
the Judgments of the European Court of Human Rights,’ in Anja Seibert-Fohr and
Mark Villiger (eds), Judgments of the European Court of Human Rights – Effects and
Implementation (Nomos 2014) 33.
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14 Conceptualizing femicide as a human rights violation
and provides a tool for States to combat a serious human rights violation.74 The
femicide concept appears to be most operable in the litigation context before
regional human rights courts. The focus of regional human rights instruments,
such as the European Convention of Human Rights (ECHR) and the American
Convention on Human Rights (ACHR), is on civil and political rights, and,
with the exception of the African Charter on Human and People’s Rights, to
a lesser extent on social and economic rights.75 At the same time, the proposed
femicide concept does not exclude social and economic rights (e.g., in the
context of torture and the right to life, which may also include the right to live-
lihood).76 Social and economic rights can and should be read into the concept
of femicide, where it is possible to do so.
The primary object of the attack in femicide are women and girls. Of course,
who belongs to the category of women and girls is subject to debate and the
group’s contours may evolve.77 I treat women and girls as a single analytical
category to simplify the study of femicide in international law, while navigat-
ing the tension between this potentially essentialist category and its important
intersectional characteristics.78 I consider that an identifiable female social
group targeted for subordination could include gender identity and sexual ori-
entation. As illustrated in this book, the female social group is intersectional,
thus being influenced by the victim’s ethnicity, migrant status, socio-economic
status and other factors, which limits over-generalizations in identifying the
targeted group. While it is evident that sexual violence is used against men
and boys as well, these crimes are separate from femicide and, along with the
complex persecution of members of the LGBTQ+ community, must be studied
elsewhere.79
To emphasize that women and girls of all ages can be victims of femicide,
I prefer the term ‘female social group’ or ‘female group’ over ‘women and
girls’ group.’ The term ‘female’ should be understood to cover attacks based
on women and girls’ gender, not only their sex. The term ‘sex,’ refers to
biological differences between men and women; the term ‘gender’ relates to
74 Cf. Madeleine Rees and Christine Chinkin, ‘Exposing the Gendered Myth of Post
Conflict Transition: The Transformative Power of Economic and Social Rights’ (2016)
48 NYU International Law and Politics 1211–1226 at 1218.
75 See Ingrid Leijten, Core Socio-Economic Rights and the European Court of
Human Rights (Cambridge University Press 2018) 29.
76 See for the connection between violence against women and girls and poverty,
Goldblatt (n 10) 365–368.
77 Jaya Ramji-Nogales, ‘Revisiting the Category “Women”’ in Harris Rimmer and
Ogg (n 10) 251.
78 See Ogg and Craker (n 72) 195.
79 See, e.g., Brian Kritz, ‘The Global Transgender Population and the International
Criminal Court’ (2014) 17(1) Yale Human Rights and Development Law Journal 1–38.
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Introduction to the concept of femicide
the differently constructed social roles attributed to men and women.80 The
debated scope of the terms ‘sex’ and ‘gender,’ and their possible conflation
is recognized here, but not discussed in detail.81 To show that the violence is
specific to women and girls, I use the prefix ‘fem,’ rather than ‘gender’ in con-
ceptualizing femicide. The term ‘fem’ must be understood to include attacks
against women and girls based on their gender. No terms or concepts in this
book should be understood to restrict or limit the human rights of women and
girls.
I do not make a statistical point or try to explain the significance of femicide
in terms of numerical necessity, I refer to select statistics to merely exem-
plify its scale and reality. In any case, since statistics on the prevalence of
gender-based violence are rare, such an endeavor would likely underestimate
the extent of violence currently committed against women and girls. With
these caveats in mind, the chapter now introduces the concept of femicide in
social contexts.
THE NATURE AND EXTENT OF FEMICIDE IN SOCIAL
CONTEXTS
Systemic violence against female social groups manifests differently in various
social contexts. This section unearths some underlying factors galvanizing
widespread attacks against women and girls, which are critical in advancing
the legal claims for elements of femicide—the harm at issue, its scale, the sub-
ordination of women, and state inaction. A selection of three manifestations
of violence serve to illustrate the normative characteristics of femicide: (1)
the femicide waves in Ciudad Juarez, Mexico; (2) the abduction and sexual
enslavement of Yazidi women and girls in Sinjan, Iraq; (3) the abduction of
schoolgirls in Chibok, Nigeria. Throughout this book, I refer to these examples
as I develop the concept of femicide.
Sexual Exploitation, and Murder of Women and Girls in Ciudad Juarez,
Mexico
The term ‘femicide’ is emblematic of the disappearances and brutal murders,
frequently involving sexual violence, prevalent in Ciudad Juarez, Mexico.
80 See detailed discussion on gender, Valerie Oosterveld, ‘Gender-based Crimes
against Humanity’ in Leila Nadya Sadat (ed), Forging a Convention for Crimes Against
Humanity (Cambridge University Press 2011) 80.
81 See Judith Butler’s in depth study on the fluidity of sex/gender, and the decon-
struction of these notions in Judith Butler, Gender Trouble (Routledge 1990) xxii and
2–34.
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16 Conceptualizing femicide as a human rights violation
Since 1993, the killings of women and girls had consistently increased.82 Many
women and girls who went missing in the early 2000s were young, under-
privileged, migrant or indigenous women, usually employed in the maquila
(sewing) industry, but affluent students and government employees also fell
victim.83 In 2021, similar patterns of femicides could be observed across
Mexico.84 These killings were initially attributed to serial killers; in the bulk of
these cases, the Mexican authorities failed to conduct a proper investigation;
the cases remained unresolved, and perpetrators were rarely identified.85
In response to the Mexican authorities’ inaction, both the Inter-American
Commission on Human Rights (IACHR) and the CEDAW Committee inves-
tigated the disappearances and killings in Ciudad Juarez, in 2003 and 2005
respectively.86 Besides highlighting different factors (e.g., the proximity to the
US border and the presence of organized crime and drug trafficking) which
contributed to the killings in the area, the reports clarified that gender played
a role in the murders of women and girls.87 Based on these reports, the Cotton
Field Case, involving the disappearances of three young women in Mexico,
also recognized the ‘culture of violence and discrimination that is based on
women’s alleged inferiority, a situation that has resulted in impunity,’ and
sparked the crimes against women and girls in Ciudad Juarez.88
One cause of femicide identified by the literature and case law is a tension
between traditional masculine norms in a patriarchal society and surging
employment opportunities for women leading to their economic independ-
ence.89 At around the same time that femicide emerged in Ciudad Juarez,
the sewing industry, enabled by the North American Free Trade Agreement
(NAFTA), began operating in Ciudad Juarez.90 Since factories predomi-
nantly hired women and girls for their sewing skills, many men remained
82 See Cotton Field Case (n 12) paras 127 and 164.
83 Lagarde y de los Rios (n 39) xviii.
84 See for current disappearances of women and girls in Mexico, ‘El Blog de Frida,
‘#NiUnaMás’ https:// fridaguerrera .blogspot .com/ .
85 William Paul Simmons and Rebecca Coplan, ‘Transnational Remedies,
Terrorizing Women: Feminicide in the Americas’ in Fregoso and Bejarano (n 16)
199–200.
86 Committee on the Elimination of Discrimination against Women (CEDAW),
Report on Mexico under Article 8 of the Optional Protocol to the Convention, and reply
from the Government of Mexico, UN Doc CEDAW/C/2005/O 8/MEXICO, 27 January
2005 [hereinafter ‘CEDAW Report 2005’]; IACHR Report on Ciudad Juarez.
87 Cotton Field Case (n 12) para. 127; See Simmons and Coplan (n 85) 199.
88 Ibid.
89 Cotton Field Case (n 12) para. 134; Angelica Cházaro et al., ‘Getting Away with
Murder: Guatemala’s Failure to Protect Women and Rodi Alvarado’s Quest for Safety’
in Fregoso and Bejarano (n 16) 93.
90 CEDAW Report 2005; López et al. (n 16) 160 and 163.
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Introduction to the concept of femicide
unemployed.91 Women began to assume the new role of providers, thereby
encroaching upon a traditionally male role. In a society where masculinity
is associated with men’s ability to provide for their families financially, this
tension is said to have translated into extreme forms of violence against women
(hypermasculinity) to secure and retain the power associated with men’s roles
as providers.92 In the Cotton Field Case, the IACtHR cited the UN Special
Rapporteur on Violence Against Women’s report on Mexico, which explained
that women’s integration into the workforce ‘challenge[d] the very basis of
the machismo,’ empowering women economically, allowing them to become
independent and overcome discrimination.93 Struggling with this development,
machista men reacted in violent ways causing ‘family abandonment, unstable
relationships or alcoholism, which in turn may increase the risk of violence.
Even cases of rape and murder may be understood as desperate attempts to
uphold discriminatory norms that are outpaced by changing socio-economic
conditions and the advance of human right.’94 The CEDAW Committee’s
report on Ciudad Juarez found that the violent acts were ‘not isolated, sporadic
or episodic cases of violence; rather they represent[ed] a structural situation
and a social and cultural phenomenon deeply rooted in customs and mind-
sets.’95 These gender dynamics thus suggest that the violence against women
in Ciudad Juarez occurred simply because they are women––meeting the
definition of femicide.96
Sexual Enslavement of Yazidi Women and Girls in Kocho, Iraq
In 2014, ISIS fighters overran and surrounded Kocho village, inhabited by
the Yazidi community. The Yazidi are an ethno-religious minority group in
the Sinjan district in northern Iraq. Few Yazidis managed to escape to the
Sinjar Mountain, where ISIS fighters massacred around 1,300 boys and men.
Approximately 7,000 women and girls were crammed into prison cells where
ISIS fighters inspected their faces, registered the women and girls, assigned
them numbers (to advertise them online through Telegram, an encrypted mes-
senger), and then sent the female Yazidis to slave markets to be sold.97 An ISIS
91 Cotton Field Case (n 12) para. 121; López et al., ibid. 160 and 163.
92 CEDAW Report 2005; López et al., ibid.
93 Cotton Field Case (n 12) para. 134.
94 Ibid.
95 Ibid., para. 133.
96 Ibid.
97 Valeria Cetorelli and Sareta Ashraph, ‘A Demographic Documentation of
ISIS’s Attack on the Yazidi Village of Kocho’ LSE Middle East Centre Report (19
June 2019) 9; Murad (n 4) 136; Natia Navrouzov, ‘La France doit rapatrier ses res-
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18 Conceptualizing femicide as a human rights violation
pamphlet outlined the meticulous instructions on the conditions under which
Yazidi women could be raped, enslaved, and sold under ISIS’ law, institution-
alizing and justifying the sexual slavery of Yazidi women and girls based on
a misconception of Sharia or Islamic law.98
The ISIS pamphlet specifies that non-believers who are not ‘people of the
book’ (i.e., Jewish, Christian, or Muslim believers), such as Yazidi women
and girls, can be held as sabaya sexual slaves to ensure the continued survival
of ISIS. Accordingly, a nine-year-old girl may be raped, and ‘if she is not fit
for intercourse, then it is enough to enjoy her without intercourse.’99 Under
this policy, thousands of Yazidi women and girls have been held as sexual
slaves, sexually exploited, and traded via the ISIS ‘chattel market’ as they are
considered mere property ‘which can be disposed of.’100 This culture of sexual
abuse with impunity complexly affects Yazidi women and girls’ standing in
their own community, from which they risk being ostracized for being impure.
As these women remain alive, their treatment is distinct from the violence
committed against Yazidi men and boys
Thus far, only a few women and girls have escaped ISIS rule or were
rescued by the authorities.101 Although ISIS has been largely defeated in Iraq,
over 3,000 women still remained missing in 2021.102 Dispersed in different
cities across Iraq and Afghanistan, Yazidi women and girls are either unable
sortissants en Irak pour rendre justice aux Yézidis’ Le Monde (21 June 2019), https://
www .lemonde .fr/ idees/ article/ 2019/ 06/ 21/ la -france -doit -rapatrier -ses -ressortissants
-en -irak -pour -rendre -justice -aux -yezidis _5479552 _3232 .html ?fbclid = I wAR0f0yTGY
fr43wEoTy4 X8xKL4F094 VEV9f9ZKXM -B0uZgj9ypfvZArF _tHc; Dunya Mikhail,
The Beekeeper, Rescuing the Stolen Women of Iraq (New Directions Paperbook 2018)
12. See also Sareta Ashraph, ‘Never Again, Again: The Yazidi Genocide’ IntLawGrrls
(15 August 2017) https:// ilg2 .org/ 2017/ 08/ 15/ never -again -again -the -yazidi -genocide/ .
98 Nikita Malik, ‘Surviving Islamic State: The Plight of the Yazidi Community’
Forbes (18 September 2018) www .forbes .com/ sites/ nikitamalik/ 2018/ 09/ 18/ surviving
-islamic -state -the -plight -of -the -yazidi -community/ #4f15a452770d.
99 ISIS’ Fatwa Department published a pamphlet in 2013 outlining the conditions
for sexual slavery, Question 13. Mah-Rukh Ali, ‘ISIS and Propaganda: How ISIS
Exploits Women’ Reuters Institute Fellowship Paper (University of Oxford 2015)
1–25.
100 Question 6: Is it permissible to sell a female captive? Ali, ‘ISIS and Propaganda:
How ISIS Exploits Women’, 1–25. See also Mikhail (n 97) 18.
101 Richard Hall, ‘Yazidi Leaders call for help finding Thousands of Missing
Women and Children kidnapped by Isis’ The Independent (28 February 2019) www
.independent .co .uk/ news/ world/ middle -east/ isis -syria -iraq -women -children -missing
-yazidi -a8800996 .html.
102 Kate Denereaz, ‘Still Going Through Hell: The Search for Yazidi Women
Seven Years On’ The Guardian (3 August 2021) https:// www .theguardian .com/ global
-development/ 2021/ aug/ 03/ still -going -through -hell -the -search -for -yazidi -women
-seven -years -on.
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19
Introduction to the concept of femicide
to escape, cannot contact their relatives, or feel compelled to remain with their
children fathered by ISIS fighters. Iraqi armed forces have made little to no
effort to rescue the captured Yazidi.103 Freed Yazidi have been mostly liberated
by smugglers, often Yazidi businessmen, who manage to buy the women and
girls back or liberate them in risky rescue operations.104 The Iraqi govern-
ment’s indifference to the mass sexual enslavement of thousands of women
and girls exemplifies and is a key component of femicide.105
Abduction and Enslavement of Women and Girls by Boko Haram in
Nigeria
The terrorist organization Boko Haram has tormented Nigeria since 2009. The
media has drawn particular attention to their attacks against and abduction
of schoolgirls. Boko Haram considers educating women a sin; women and
girls’ existence is solely recognized in terms of reproductive capacities.106
Rural Nigeria, the area where Boko Haram largely operates, is an inherently
unequal and poverty-stricken society where families marry off girls between
the ages of 14 and 16 in exchange for a dowry, which helps alleviate dire
socio-economic circumstances. Girls are sometimes sold or ‘donated’ to Boko
Haram for 10–20 USD.107 At the same time, some women have gained a dom-
inant presence in Nigeria’s political landscape.108 Marginalized men, excluded
from economic progress, may have turned to the terrorist organization to assert
social and political power through sexual violence in a climate of political and
economic insecurity.109
103 Richard Hall, ‘Yazidi Leaders call for Help finding Thousands of Missing
Women and Children kidnapped by Isis’ The Independent (28 February 2019), https://
www .independent .co .uk/ news/ world/ middle -east/ isis -syria -iraq -women -children
-missing -yazidi -a8800996 .html.
104 Mikhail (n 97) 15–16.
105 Yet, there are promising domestic attempts to hold perpetrators individually
responsible in Germany and the US, most notably a conviction by a German court for
crimes against humanity in respect of the death of a Yazidi girl left to die from heat.
Annette Ramelsberger and Susi Wimmer, ‘Es wäre Jennifer W. möglich und zumutbar
gewesen, das Kind zu befreien’ Süddeutsche Zeitung (25 October 2021), https:// www
.sueddeutsche .de/ politik/ jennifer -w -urteil -zehn -jahre -haft -1 .5448528. Yazda, ‘Yazidi
Women Seek Justice in U.S. Court for Crimes Committed by ISIL’ (29 April 2021),
https:// www .yazda .org/ yazidi -women -seek -justice -in -us -court -for -crimes -committed
-by -isil.
106 Temitope Oriola, ‘“Unwilling Cocoons:” Boko Haram's War Against Women’
(2017) 40(2) Studies in Conflict & Terrorism 99–121 at 103.
107 Ibid., 105.
108 Ibid.
109 Ibid., 105 and 112.
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20 Conceptualizing femicide as a human rights violation
Amidst this socio-political instability, Boko Haram kidnapped 300 girls
from a secondary school in Chibok, Nigeria in 2014. A study suggests that
women and girls were abducted (1) to ‘serve as cocoons for babies’ to ensure
the biological survival of the group, (2) to work as domestic servants, col-
lecting firewood and water, as well as cooking and washing for the soldiers,
or (3) to act as killing machines.110 Boko Haram appears to have singled out
women and girls according to reproductive capacity and perceived caretaking
capabilities.111 Accordingly, unmarried girls and women of reproductive age
often marry fighters, procreate, and serve as ‘bush wives.’112 Boko Haram per-
ceived married women as ‘damaged goods’ who either serve as caretakers in
the camps or as suicide bombers together with the youngest girls. Being raped
and forcibly married—and having to witness their brothers, fathers, and hus-
bands brutally killed—women and girls undergo severe physical and mental
pain.113 The severity of such physical and mental pain is a crucial element of
the femicide concept.
Boko Haram continued to attack villages, capturing another 110 girls in
2018. Many of these attacks are characterized by the national authorities’
unwillingness or inability to help rescue the girls or stop the attacks despite
warnings of imminent attacks from the local population. Chibok villagers had
informed the local police that Boko Haram attacks were imminent, in response
to which local police officers fled the scene. Moreover, Nigerian authorities
initially rejected international assistance to locate the missing women and
girls.114 Eventually, the Nigerian government accepted foreign help and nego-
tiated the release of 100 girls over the years.115 Once femicide is recognized as
an issue of international concern impunity can be combatted.
110 Ibid., 107. Boko Haram is also thought to deliberately attack girls given the high
media attention around the world sparked by, and the leverage attached to holding
female hostages. In recent years, many of the freed or escaped schoolgirls pursue the
higher education which Boko Haram tried to deny them. Craig Allen et al., (prods),
‘Kidnapped as Schoolgirls by Boko Haram: Here They are Now’ New York Times
(11 April 2018) www .nytimes .com/ interactive/ 2018/ 04/ 11/ world/ africa/ nigeria -boko
-haram -girls .html.
111 Adam Nossiter, ‘In Town of Missing Girls, Sorrow, but little Progress’ New
York Times (12 March 2014) www .nytimes .com/ 2014/ 05/ 12/ world/ africa/ in -town -of
-missing -girls -sorrow -but -little -progress .html ?module = inline; Oriola (n 106) 108–109.
112 Nossiter (n 111).
113 Allen et al. (n 110).
114 Doug Bandow, ‘Who Can Save “Our Girls” and Nigeria? Only the Nigerian
People, Not Washington’ Forbes (12 May 2014), www .forbes .com/ sites/ dougbandow/
2014/ 05/ 12/ who -can -save -our -girls -and -nigeria -only -the -nigerian -people -not
-washington/ #1659ba7e522d.
115 Dionne Searcey and Emmanuel Akinwotu, ‘With Dozens of Schoolgirls Missing
in Nigeria, Angry Parents Demand Answers’ New York Times (22 March 2018), www
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21
Introduction to the concept of femicide
APPROACHES TO FEMICIDE
This section traces the origins of the term femicide as the targeted killing
of women and its many ambiguous meanings. As revealed in the examples
above, sexual violence, rape and kidnapping are notoriously the indicators of
the social realities of femicide. Femicide should not be equated with a female
homicide, an intrinsically individualistic crime, as it is more like a female gen-
ocide (with the social subordination of the group being its aim), embedded in
structural inequality. A focus on killings tends to reinforce the male experience
of human rights violations exclusively and are only one means of achieving
the subordination of the social group in question. Moreover, the ways in which
violence is inflicted on women and girls (in slow-death scenarios) may not be
covered under the right to life, so they should be captured under other human
rights violations. I propose a concept of femicide to capture these particular
forms of violence against the female social group.
Political Science and International Policy
The term ‘femicide’ emerged in political science discourse on terrorizing
women in Latin America. Russell, who popularized the modern concept of
femicide, initially defined it as the ‘misogynist killing of women by men’116 and
later as the ‘the killing of females by males because they are female.’117 Russell
requires a sexist act such as rape to accompany the killing that is ‘motivated
by a sense of entitlement to or superiority over women, by pleasure or sadistic
desires toward them, or by an assumption of ownership of women.’118 Latin
American feminist scholars have translated the term femicide into Spanish as
.nytimes .com/ 2018/ 02/ 22/ world/ africa/ schoolgirls -nigeria -boko -haram .html ?action =
click & module = RelatedCoverage & pgtype = Article & region = Footer; Associated Press
in Washington, ‘US sending experts to aid Nigeria in search for kidnapped girls’
The Guardian (6 May 2014), www .theguardian .com/ world/ 2014/ may/ 06/ us -sending
-experts -nigeria -kidnapped -schoolgirls.
116 Diana Russell, ‘Femicidal Lynching in the United States’ in Jill Radford and
Diana Russell (eds), Femicide, The Politics of Women Killing (Twayne Publishers
1993) 53 [hereinafter Russell, ‘Femicidal Lynching’]. See on Russell’s work on femi-
cide, Diana Russell, ‘My Years Campaigning for the Term “Femicide”’ (2021) 6(5)
Dignity: A Journal of Analysis of Exploitation and Violence 1–5.
117 Diana Russell, ‘Defining Femicide: Speech at UN Symposium on Feminicide’
(26 November 2012), https:// www .femicideincanada .ca/ sites/ default/ files/ 2017 -12/
RUSSELL %20 %282012 %29 %20DEFINING %20FEMICIDE .pdf.
118 Ibid.; Russell, ‘Femicidal Lynching (n 116) 53; See also UNGA, ‘Report of the
Special Rapporteur on Violence Against Women, its Causes and Consequences’ (16
May 2012) UN Doc A/HRC/20/16/Add.
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22 Conceptualizing femicide as a human rights violation
femicidio or feminicidio. They tend to prefer the term feminicide, for several
reasons. Mexican Congresswoman Marcela Lagarde worries that ‘femicide’ as
the corollary to ‘homicide’ conveys the message that femicide simply entails
the killings of women.119 Lagarde conceives of femicide as a systemic problem
and includes an element of impunity and the State’s failure to investigate and
punish acts of femicide in her definition.120 According to Lagarde, femicide
is ‘the culmination of many forms of gender violence against women that
represent an attack on their human rights and that lead them to various forms
of violent death.’121 Monárrez similarly considers structural inequality as
a driving factor in femicide.122 By using the term feminicidio, Fregoso and
Bejarano highlight their contribution to the investigation of violence against
women as feminist scholars from the Global South.123 The present work uses
the English term femicide while building on approaches to femicide primarily
put forward by Latin American scholars. I consider the distinction between
‘femicide’ and feminicide’ to be merely descriptive, as both terms essentially
refer to the same human rights violation.
A plethora of approaches have been taken to define femicide at the interna-
tional plane. For example, in a policy paper, the World Health Organization
(WHO) noted that, ‘while our understanding of femicide is limited, we know
that a large proportion of femicides are women in violent relationships.’124
The paper continues to define femicide as the ‘intentional murder of women
because they are women, but broader definitions include any killings of
women or girls.’125 The WHO definition seems to equate femicide with murder
resulting from domestic violence, referring to the prevalence of ‘intimate
partner femicide,’ but also mentions ‘dowry-related femicide,’ and ‘honor
femicide,’ denoting the Ciudad Juarez murders as ‘non-intimate femicide.’126
119 Marcela Lagarde, ‘Antropología. Feminismo y Política: Violencia Feminicidio
y Derechos Humanos de las Mujeres’ in Margaret Bullen and Carmen Diez Mintegu
(eds), Retos Teóricos y Nuevas Practices (Ankulegi Antropología Elkartea 2012) 216;
Messuti (n 38) 74.
120 Marcela Lagarde y de los Rios, Expert Opinion in Cotton Field Case (n 12) para.
10.
121 Lagarde y de los Rios (n 39) xxi.
122 Julia Monárrez, ‘La Cultura del Feminicidio en Ciudad Juarez’ (1993–1999)
12(23) Frontera del Norte 1–12.
123 Rosa-Linda Fregoso and Cynthia Bejarano, ‘Introduction: A Cartography of
Femicide in the Americas’ in Fregoso and Bejarano (n 16) 1–44.
124 World Health Organization (WHO) and Pan American Health Organization,
‘Understanding and Addressing Violence against Women: Feminicide’, WHO/
RHR/12.38 (2012), 1, https:// apps .who .int/ iris/ handle/ 10665/ 77421.
125 Ibid.
126 Ibid., 3.
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23
Introduction to the concept of femicide
UN Offices and the UN General Assembly (UNGA) have adopted many,
at times divergent, definitions of femicide.127 When asking States to collect
and provide data in the context of her ‘femicide watch’ initiative, the UN
Special Rapporteur on Violence Against Women described femicide as
‘gender-related killings of women.’128 In 2021, the European Institute for
Gender Equality seemingly equated femicide to domestic violence, centering
on an intimate relationship, which may exclude acts of femicide committed
by strangers.129 One of the most comprehensive approaches to femicide was
adopted by the UN Regional Office for Central America and UN Women in
its Latin American Model Protocol for the Investigation of Gender-related
Killings of Women (Femicide/Feminicide) (Latin American Model Protocol),
which defines femicide broadly as:
the murder of women because they are women, whether it is committed within
the family, a domestic partnership, or any other interpersonal relationship, or by
anyone in the community, or whether it is perpetrated or tolerated by the state or
state agents.130
The Latin American Model Protocol lists different types of femicide, such
as feticide, infanticide, dowry-related killings, sexual killings, honor kill-
ings, killings of women suspected of being witches, domestic violence,
and homicide-suicides, among others.131 In May 2019, the Organization of
American States (OAS) launched a model law on femicide/feminicide to guide
States in drafting and amending criminal legislation on femicide. The model
law is laudable in listing reasons behind femicide—including honor offences,
political activity, organized crimes, and conflict-related sexual violence—and
ensures adequate investigation, prosecution, and penalties. Regrettably, since
the model law does not consider gender as grounds for attack, and requires
perpetrators to be men and boys, its impact is limited.132
127 See e.g., UNGA, ‘In-depth Study of all Forms of Violence against Women’ (6
July 2006) UN Doc A61/122/Add.1, 14 [hereinafter UNGA, ‘In-depth Study’].
128 OHCHR, Taking Stock of the Femicide Watch Initiative (12 July 2021), https://
www .ohchr .org/ EN/ Issues/ Women/ SRWomen/ Pages/ CFI -taking -stock -femicide .aspx.
129 European Institute for Gender Equality, ‘Measuring Femicide in the EU
and Internationally: An Assessment’ (2021), 30 https:// eige .europa .eu/ publications/
measuring -femicide -eu -and -internationally -assessment.
130 UN Entity for Gender Equality and the Empowerment of Women, Latin
American Model Protocol for the Investigation of Gender-related Killings of Women
(Femicide/Feminicide) (2004) [hereinafter the Latin American Model Protocol], 13.
131 See definitions in ibid., 33; WHO (n 124) 1; UNGA, ‘In-depth Study’ (n 127) 84.
132 OAS, Inter-American Model Law on the Prevention, Punishment and Eradication
of the Gender-Related Killing of Women and Girls (Femicide/Feminicide), III. Series:
OEA/Ser.L/ II.7.10 MESECVI/CEVI/doc.240/18. IV. Series. OEA/Ser.L/II.6.21, 2018.
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24 Conceptualizing femicide as a human rights violation
The Council of Europe (CoE) condemned violence in Mexico as femicide
but primarily with respect to Latin America, notably after two Dutch women
were killed in Ciudad Juarez.133 However, recent spates of violence against
women in Europe have made femicide a European matter. In 2015, a motion
was brought in the European Parliament, calling for the adoption of a defi-
nition in the European legal context, but so far no femicide definition has
been adopted.134 Since 2018, the European Union (EU), in collaboration with
the UN, has been attempting to end femicide in Latin America through the
spotlight initiative.135 The CoE and the EU have yet to recognize femicide
adequately in Europe.
Domestic Criminal Law
Latin American States have been especially progressive in designing specific
criminal legislation on femicide/feminicide. Since these laws protect women
from femicide, as opposed to domestic violence, they are highlighted here
as attempts to address femicide at the domestic level. Several States crimi-
nalize femicide (Guatemala, Chile, Costa Rica, Nicaragua, and Uruguay) or
feminicide (El Salvador, Mexico, Peru, and Brazil).136 And yet, there is con-
133 Council of Europe, Parliamentary Assembly, Disappearance and Murder of
a great number of Women and Girls in Mexico, Resolution 1454 (21 June 2005)
http:// assembly .coe .int/ nw/ xml/ XRef/ Xref -XML2HTML -en .asp ?fileid = 17351 & lang =
en; Ana Salado Osuna, ‘Feminicidio: Una Perspectiva Europea’ in Mariño et al. (eds),
Feminicidio, El Fin de la Impunidad (Tirant lo Blanche 2012) 148.
134 Aldo Patriciello, ‘Motion for a Resolution of Femicide’ (15 October 2015),
www .europarl .europa .eu/ sides/ getDoc .do ?type = MOTION & reference = B8 -2015 -1203
& language = EN.
135 Spotlight Initiative Press, ‘European Union and United Nations join Forces
to end Femicide in Latin America under the Spotlight Initiative’ (27 October 2017),
http:// spotlightinitiative .org/ press/ european -union -and -united -nations -join -forces -end
-femicide -latin -america -under -spotlight. See also Karen Zraick, ‘Most Dangerous
Place for Women Is the Home, U.N. Report Finds’ New York Times (27 September
2018), www .nytimes .com/ 2018/ 11/ 27/ world/ female -homicide -gender -violence .html.
136 I focus on Latin American legislations because they are among the world’s
few and most progressive in addressing feminicide/femicide. Among these States,
Guatemala, El Salvador, Nicaragua, and Costa Rica include femicide as a specific
crime in a law dealing with violence against women. Guatemala is the only State where
the law itself is on femicide. Mexico and Peru have added to existing criminal legisla-
tion; some countries have included femicide either in parricide (Peru and Chile) or as an
independent crime in the existing criminal code (Mexico). Brazil included feminicide
as a criminal offence in 2015. In 2017, Uruguay followed suit with femicide as a crim-
inal offense. The Inter-American Commission on Human Rights (IACHR) welcomed
legislation codifying the crime of femicide in Uruguay. IACHR, ‘IACHR Welcomes
Passage of Legislation Codifying the Crime of Femicide in Uruguay’ IACHR Press
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25
Introduction to the concept of femicide
siderable divergence as to the scope, content, and implications of femicide.137
El Salvador, Nicaragua, and Costa Rica include femicide as a specific crime
in a general law on violence against women, whereas Peru and Chile read the
crime of femicide/feminicide as a female proxy to homicide into their criminal
code’s homicide provision.138 Guatemala has spearheaded femicide legislation
by adopting a specific law, exclusively dealing with femicide, titled Law
against Femicide and other Forms of Violence against Women. This law is one
of the most elaborate pieces of legislation, defining femicide as the ‘violent
death of a woman, caused by a context of unequal power relations between
women and men, through which a man exercises power over a women.’139 The
Commentary to the Guatemalan femicide law explains that violence perpe-
trated at home or in public can constitute femicide: it includes economic, psy-
chological, and physical violence.140 The ample differences between domestic
approaches to femicide are apparent when comparing the Guatemalan law
with, e.g., the Peruvian criminal code, which only punishes ‘he who intention-
ally kills his ascendant, descendant, natural or adoptive, or she who is or has
been his spouse, his partner, or with whom he is or has maintained a similar
relationship’ for the crime of femicide.141 These different codifications have
led to confusion as to the scope of femicide.
A key element of the crime of femicide, as envisioned by most Latin
American domestic laws, is that the criminal conduct requires the murder
of a woman.142 Other than that, discrepancies exist regarding the perpetra-
Release (6 October 2017), http:// www .oas .org/ en/ iachr/ media _center/ PReleases/ 2017/
153 .as. For a summary of some domestic laws on femicide and feminicide, see Lianet
Goyas Cespedes et al., ‘Violencia Contra la Mujer y Regulación Jurídica del Femicidio
en Ecuador’ (2018) 12(23) Revista de Investigación en Derecho, Criminología y
Consultoría Jurídica 129–150; Latin American Model Protocol (n 130) 143–144.
137 Patsilí Toledo, ‘Criminalising Femicide in Latin American Countries – Legal
Power working for Women?’ in Adrian Howe and Daniela Alaattinoğlu, Contesting
Femicide, Feminism and the Power of Law Revisited (Routledge 2019) 42.
138 Law No 29819 amending Article 107 of Peru’s Criminal Code (2011), http://
blog .pucp .edu .pe/ blog/ conciliacion/ 2011/ 12/ 29/ ley -29819 -que -crea -el -tipo -penal -de
-feminicidio/ ; Law No 20480 amending Article 11 of Chile’s Criminal Code (2010),
http:// perso .unifr .ch/ derechopenal/ assets/ files/ legislacion/ l _20181108 _05 .pdf.
139 Art. 3(e) Guatemalan Law against Femicide and other Forms of Violence against
Women, No 22-2800, www .oas .org/ dil/ esp/ Ley _contra _el _Femicidio _y _otras _Formas
_de _Violencia _Contra _la _Mujer _Guatemala .pdf [unofficial translation by the author].
140 Hilda Morales Trujillo and Grupo Guatemalteco de Mujeres (n 23).
141 Law No 29819 amending Article 107 of Peru’s Criminal Code [unofficial trans-
lation by the author]; see also Law No 20480 amending Article 11 of Chile’s Criminal
Code.
142 All of the examined legislations refer to the act of killing (‘dar muerte,’ ‘causar
la muerte,’ or ‘privar de la vida’).
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26 Conceptualizing femicide as a human rights violation
tors, whether the violence is gender-based, and if an intimate relationship is
required.143 These laws either explicitly define perpetrators as exclusively
male, or implicitly do so by requiring a relationship between the perpetrator
and a woman.144 Some laws (Chile, Peru, and Costa Rica) require a relation
between victims and perpetrators, e.g., an intimate partnership and/or cohab-
itation. Killings by unrelated strangers are excluded in these legislations,
as femicide is restricted to violence in the domestic sphere.145 The Mexican
legislation simply suggests that intimate relations prove that the crime is
gender-based, while El Salvador and Nicaragua require no nexus to the private
sphere.146
Some legislations, like the Mexican and Guatemalan laws, recognize a
‘gender-based’ element—i.e., the violence must be committed against women
because they are women. Gender-based murders either require an intimate
relationship—such as when a perpetrator kills a woman because he was frus-
trated at her unwillingness to enter into an intimate relationship with him—or
are recognized by the way the victim’s body is found after death—e.g., types
of bodily injuries, signs of previous sexual violence, capitation, and/or nec-
rophilia.147 Similarly, El Salvador requires that the killings of women must
be due to ‘hatred and contempt’ to be considered femicide.148 As previously
mentioned, Peru and Chile do not consider femicide a gender-based crime,
equating femicide with parricide.149
143 See Cespedes et al. (n 136) 129–150; see also UNETE and Ana Isabel Garita
Vílchez, ‘La regulación del delito de Femicidio/Feminicidio en América Latina y el
Caribe’, 2011, 17 and 48 https:// periodicooficial .jalisco .gob .mx/ sites/ periodicooficial
.jalisco .gob .mx/ files/ la _regulacion _del _delito _de _femicidio _feminicidio _en _america
_latina _y _el _caribe - _ana _isabel _garita _vilchez .pdf.
144 As many Latin American States do not recognize homosexual relationships, the
reference to women’s partners’ must thus mean men and boys. Art. 9 Nicaraguan femi-
cide law (perpetrator is male). In Peru, Chile, Costa Rica and El Salvador, the perpe-
trator is not mentioned, because of the required relationship with the woman, but it can
be inferred that he is a man. In Guatemala, the perpetrator is presumably male. Only
Mexican and Guatemalan legislation remain unclear about whether the perpetrator is
a man. Ibid.
145 Cohabitation or an intimate relationship is required under Chilean, Peruvian
and Costa Rican legislation. This requirement excludes cases of killings by unrelated
strangers for no apparent reason. Ibid.
146 Ibid.
147 Art. 45(a) Guatemalan Femicide Law; Art. 325 Mexican Criminal Code; simi-
larly, Art. 8 Nicaraguan Law on Violence against Women.
148 Art. 45 El Salvador Femicide Law.
149 Parricide refers to the killing of one’s parents or other family members. Chile
and Peru both criminalize feminicide as a form of parricide. Art. 107 of Peru’s Criminal
Code, Law 29819; Law No 20.480 amending Article 11 of Chile’s Criminal Code.
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27
Introduction to the concept of femicide
These approaches to femicide, limited to the domestic level, do not clarify
the scope of femicide as a human rights violation. Considerable uncertainty
remains over what elements femicide comprises and how it is framed.
Questions remain about whether femicide involves a woman’s murder, and
whether the existence of an unequal societal context is required. States may be
unable to identify and respond to acts of femicide or to gather and compare sta-
tistical data.150 Of course, murders of women and girls can be acts of femicide
and should be primarily defined in line with the Guatemalan approach, which
mirrors to some extent the femicide concept I propose. An act of femicide as
a domestic crime is helpful for data collection on femicide, however, it does
not yet grasp the systemic nature of femicide in human rights law.
CONCEPTUAL DIFFERENCES TO SIMILAR HUMAN
RIGHTS VIOLATIONS
Domestic Violence
The term ‘domestic violence’ as used by human rights bodies describes
violence committed within the family. As the Convention on Preventing
and Combating Violence against Women and Domestic Violence (Istanbul
Convention) specifically deals with domestic violence, I use its definition
of domestic violence as:151 ‘[A]ll acts of physical, sexual, psychological or
economic violence that occur within the family or domestic unit or between
former or current spouses or partners, whether or not the perpetrator shares or
has shared the same residence with the victim.’152
The proposed femicide concept may include acts of domestic violence.
Femicide has been seen as a Latin American and non-western problem.
However, the social reality of structural, serious harm to women and girls also
exists in Europe, often in the form of domestic violence. Of course, domestic
violence as part of femicide must be placed in the contexts of widespread
human rights violations. Some scholarship has already established a link
between femicide and domestic violence in Europe. Furthermore, the ECtHR
has also mentioned the term ‘femicide’ in a domestic violence case.153 Not all
150 Toledo (n 137) 46. See Cespedes et al. (n 136) 129–150.
151 Council of Europe’s Convention on Preventing and Combating Violence against
Women and Domestic Violence (Istanbul Convention) (adopted 7 April 2011, entered
into force 1 August 2014).
152 Art. 3 Istanbul Convention; see also Bonita Meyersfeld, Domestic Violence and
International Law (Hart Publishing 2011) 111–112.
153 See e.g., Daniela Bandelli, Femicide, Gender and Violence: Discourses and
Counterdiscourses in Italy (Palgrave Macmillan 2017); European Court of Human
Rights (ECtHR), Talpis v. Italy, App No 41237/14 (2 March 2017).
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28 Conceptualizing femicide as a human rights violation
instances of domestic violence would fall within the ambit of the proposed
femicide concept. I maintain that a certain level of severity threshold (either
torture and/or killing) is what makes acts of domestic violence femicide.
Femicide is not limited to killings resulting from domestic violence, as this
would exclude other severe acts of domestic violence. A focus on killings
alone reemphasizes a human rights violation often targeting men and boys.
In contrast to domestic violence, which can affect men and boys as well,154
femicide targets women and girls exclusively. Femicide does not require any
intimate relationship and may occur in the public arena, whereas domestic
violence is typically associated with the intimate sphere where the victim is
targeted by a family member.155 Femicide should cover severe violence in
domestic settings as well as violence which occurs outside the home, including
acts committed by strangers.
Enforced Disappearance
Enforced disappearance is a human rights violation that typically affects men
and boys.156 Article 2 of the Convention on Enforced Disappearance defines
‘enforced disappearance’ as:
the arrest, detention, abduction or any other form of deprivation of liberty by agents
of the State or by persons or groups of persons acting with the authorization, support
or acquiescence of the State, followed by a refusal to acknowledge the deprivation
of liberty or by concealment of the fate or whereabouts of the disappeared person,
which place such a person outside the protection of the law.
The set of human rights violations in enforced disappearance differs from
femicide insofar femicide does not need to include deprivation of liberty, and
entails other, gender-based human rights violations.157 Furthermore, acts of
enforced disappearance are committed in much closer cooperation with the
State, that is, by ‘agents of the State or by persons or groups of persons acting
with the authorization, support or acquiescence of the State.’ Acts of femicide
are typically committed by non-state actors, characterized by state inaction—
yet, the State may have contributed to the risk for women and girls of being
abducted. Although some similarities to enforced disappearances exist—e.g.,
154 Sjöholm (n 45) 398.
155 See Meyersfeld (n 152) 122–124.
156 Lisa Ott, Enforced Disappearances in International Law (Intersentia 2011) 1.
157 See Art. 2 International Convention for the Protection of All Persons from
Enforced Disappearance, 2716 UNTS 3, 20 December 2006 (entered into force 23
December 2010).
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Introduction to the concept of femicide
its recurrent nature and a refusal to acknowledge the human rights violation—
femicide includes acts beyond the abduction of women and girls.158
CONCEPTUALIZING FEMICIDE MATTERS
Why should femicide be dealt with on the international plane, rather than leave
States to answer such violence at the domestic level? The answer is two-fold.
First, due to state impunity, acts of femicide cannot simply be corrected at
the domestic level. The victims of femicide (or their family members on their
behalf) often face obstacles in having their claims heard or obtaining redress.
The international arena may be the sole forum where women and girls can
attain justice. Second, human rights law ought to respond to harm which
affects women to the same extent as it does to violence that impacts men and
boys. Finally, specified as an issue of international concern, femicide is more
likely perceived as severe violence and will be addressed by States, as state
responsibility is triggered when States fail to discharge their duties under
international law.159
Place Femicide in the Spotlight
Femicide includes ‘private’ acts like forced marriage, domestic violence,
FGM, and some forms of sexual slavery often occurring in the so-called
‘private sphere.’160 As domestic and cultural issues, many acts of femicide are
disregarded by international law.161 This exclusion from human rights law can
be explained by reference to the conception of the liberal State, which ‘con-
structs a social and political order which seeks to emancipate the individual
from the oppression of political structures that reinforce hierarchical forms
of human association,’ an idea deeply rooted in human rights law.162 Freedom
is negatively conceived in the liberal State, i.e., one has ‘the right to do or be
without interference from other persons,’ hence, States are reluctant to interfere
158 See Velásquez Rodríguez v. Honduras, Merits, Reparations, and Costs,
Inter-American Court of Human Rights Series C No 4 (29 July 1988), paras 156–159.
159 Rashida Manjoo, ‘Closing the Normative Gap in International Law on Violence
against Women: Developments, Initiatives and Possible Options’ in Jackie Jones and
Rashida Manjoo (eds), The Legal Protection of Women from Violence (Routledge
2018) 201 [hereinafter Manjoo, ‘Closing the Normative Gap’].
160 Carin Benninger-Budel, Due Diligence and Its Application to Protect Women
from Violence (Brill 2008) 2–3.
161 Rebecca Cook, ‘State Responsibility for Violations of Women’s Human Rights’
in Sari Kouvo and Zoe Pearson (eds), Gender and International Law (Routledge 2014)
47; Romany (n 30) 105.
162 Romany, ibid. 90.
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30 Conceptualizing femicide as a human rights violation
when non-state actors commit crimes at home, a space where the State is gen-
erally absent.163 As an atrocity that targets the female social group, however,
femicide potentially affects half of humanity, and must thus be addressed.164
Since femicide is not yet recognized as a human rights violation—resting on
the premise that it is not an issue of state responsibility, States frequently fail
to help female human rights victims.
Conceptualizing femicide in human rights law will help overcome this
public/private dichotomy, which consigns women to the private or ‘other’
sphere and awards men power over the public sphere, where governments
operate. The private sphere, in many cultures, refers to the domestic space:
where women bear, nourish, and nurture children while performing household
work; yet, the boundaries of this private sphere shift in other cultures, and may,
e.g., include fieldwork outside the home.165 Since women have the biological
ability to bear children, the confinement to their homes is sometimes seen as
dictated by nature in western cultures.166 At home, women are alienated from
individual citizenship, absorbed by the family unit headed by the father.167
Encapsulated in a family unit, women were (and frequently still are) subject to
male domination, which at times entails violence.168
Over many centuries, women’s ‘natural’ confinement to the private sphere
has been enshrined in domestic laws and policies.169 Romany notes that
a paradox exists between the social contract that excludes women from the
public sphere based on nature, on the one hand, and political rights constructed
based on equality on the other hand.170 Critiqued through a feminist lens,
Pateman notes that the social contract which regulates freedom, liberty, and
equality is governed in the public sphere, and relegates women to the private
sphere through the ‘sexual contract.’171 Indeed, until recently, husbands had,
via a ‘marriage contract,’ the power to give or deny women permission to
enter the workforce and to legally rape their wives in many countries.172 These
163 Ibid., 100.
164 See ibid., 105.
165 Carol Pateman, The Sexual Contract (Stanford University Press 1988) 118;
Angela Harris, ‘Race and Essentialism in Feminist Legal Theory’ in Kelly Weisberg
(ed), Feminist Legal Theory, Foundations (Pennsylvania University Press 1993) 350.
166 Pateman, ibid.
167 Ibid.
168 Latin American Model Protocol (n 130) 42.
169 Ibid.
170 Romany (n 30) 99.
171 Ibid., 154–188. See Nadine Taub and Elizabeth M. Schneider, ‘Women’s
Subordination and the Role of Law’ in Kelly Weisberg (ed), Feminist Legal Theory,
Foundations (Pennsylvania University Press 1993) 10–13.
172 Pateman (n 165) 154–188. See Taub and Schneider, ibid.
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Introduction to the concept of femicide
boundaries demarcating the private/public divide ‘cripple [] women’s citizen-
ship’173 and have prevented international and human rights law from interfer-
ing in the private sphere, where femicide often operates.174 This separation of
spheres could be enforced by the head of the family unit, the father, through
violence.175 As Tamale claims, domestic violence has been used as a tool to
enforce this colonial order in the African context.176 However, femicide can be
placed in the international spotlight through its recognition as a distinct human
rights violation.
Eliminate Femicidal Violence
Conceptualizing femicide as a human rights violation is complex and its
implementation depends on whether States are willing to act in the face of
femicide.177 However, the concept has the potential for States to recognize
femicide, and thus ensure that they can adequately identify femicide and
protect women and girls from this form of violence.178 In this vein, former UN
Special Rapporteur on Violence against Women, Rashida Manjoo remarked
that ‘[the adoption of] clear and enforceable provisions [on violence against
women] is critical in order to establish patterns and design appropriate and
effective responses to eliminate violence and gender-motivated killings of
women.’179 As an international legal standard, femicide can help homogenize
regional and domestic efforts to combat violence against women.180
Furthermore, the concept of femicide could impact litigation efforts, help
social movements advocate for and create social change, and thus respond to
legitimize demands for freedom from violence. For example, Simmons’ study
suggests that ratification of the CEDAW helped women organize and fuel
173 See Romany (n 30) 101.
174 Ibid., 97.
175 Ibid., 2; Latin American Model Protocol (n 130) 42.
176 Tamale (n 64) 320.
177 See Ogg and Craker (n 72) 195; Rees and Chinkin (n 74) 1220.
178 See Guatemala Human Rights Commission/US, ‘Guatemala’s Feminicide Law:
Progress Against Impunity?’ (2009), www .ghrc -usa .org/ Publications/ Femicide _Law
_Pro gressAgain stImpunity .pdf, 1–17.
179 Report of the Special Rapporteur on Violence Against Women, its Causes and
Consequences (Rashida Manjoo), A/HRC/20/16/Add., (16 May 2012), 10.
180 David Richards and Jillienne Haglund, ‘Exploring the Consequences of the
Normative Gap in Legal Protections Addressing Violence Against Women’ in Jackie
Jones and Rashida Manjoo (eds), The Legal Protection of Women from Violence
(Routledge 2018) 66.
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32 Conceptualizing femicide as a human rights violation
litigation to change laws in some countries, such as Colombia and Japan.181 As
a result of ratifying CEDAW, Colombia amended its constitution to recognize
women’s reproductive choices and right to access family planning services,182
while Japan amended its legislation to improve women’s access to and pro-
tection in employment.183 Similarly, Richards and Haglund associate specific
domestic violence laws and those prohibiting marital rape with decreasing
rates of violence in practice.184 The existence of international legal norms and
the perceived duty to implement them, especially in countries with a strong
rule of law, has advanced gender equality.185
Conceptualizing femicide in human rights law, can lead to positive out-
comes in the protection of women from violence.186 The proposition of a spe-
cific femicide concept is critical to creating the conditions for mobilization
which will encourage change in domestic legislation and action.187 Framing
femicide as a human rights violation gives human rights bodies the opportunity
to address femicide and issue relevant judgments which can elicit legislative
and social change; it might also be used to publicize state obligations to
prevent femicide internationally.188
Characterize Harm in Femicide
Femicide must be enshrined in human rights law to make harm inflicted
on women and girls visible and specific.189 In French, human rights law is
termed ‘droit de l’homme,’ ‘homme’ meaning ‘man.’190 Many human rights
instruments are characterized by male-specific language: ‘his’ property,
181 Beth Simmons, Mobilizing for Human Rights: International Law in Domestic
Politics (Cambridge University Press 2009) 345.
182 Ibid., 245–253.
183 Ibid., 255.
184 Richards and Haglund (n 180) 55–66.
185 See Simmons (n 181) 254. See also Oona Hathaway, ‘Do Human Rights Treaties
Make a Difference?’ (2002) 111(8) Yale Law Journal 1937–2042.
186 Richards and Haglund even associate specific domestic violence laws with lower
rates of HIV infections and higher human development. Richards and Haglund (n 180)
59 and 66.
187 See also Manjoo, ‘Closing the Normative Gap’ (n 159) 201.
188 See Simmons (n 181) 245–255.
189 Messuti (n 38) 51–53.
190 See Art. 1 of the French translation of the European Convention for the Protection
of Human Rights and Fundamental Freedoms (ECHR), (adopted 4 November 1950,
entered into force 3 September 1953). The French version mentions ‘homme’ 35 times
to refer to all humans generically.
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33
Introduction to the concept of femicide
‘man,’ ‘mankind,’ and ‘he.’191 Holmes demonstrates that human rights, such
as those in the UDHR (e.g., the right to property or the right to nationality),
which categorically mention ‘he’ or ‘his’ to refer to human rights are ‘rarely
extended to women around the world.’192 While seemingly generic and trivial,
this entrenched bias in language has limited the application of human rights
law to women.193 The adoption of ‘clear and enforceable provisions is critical
in revealing patterns and designing appropriate and effective responses to
eliminate violence and gender-motivated killings of women.’194 Articulated in
specific language, detailing each aspect of VAWG, the human rights violation
of femicide becomes visible and can be applied by human rights bodies to
address atrocities targeting women and girls.195
CONCLUDING REMARKS
Femicide is a global issue which requires immediate international attention.
The abductions of schoolgirls by Boko Haram, the sexual enslavement of
Yazidi women and girls, and the multitude of abductions, rape, and slaughter
of women and girls in Ciudad Juarez illustrate the issue of femicide. Even if
representing only snapshots of how femicide manifests across the world, these
examples show that femicide is often characterized by sexual violence and that
women and girls are targeted collectively on the basis of their gender.
The issue of femicide has only just begun to gain traction in international
legal discourse. To date, no universal definition of violence against women,
let alone femicide, exists. Some States have attempted to capture femicide in
domestic criminal laws; yet, most have not foreseen that femicide is a systemic
issue, going beyond the murder of a woman by her partner. Policy instruments
are often unclear about femicide, and provide a myriad of definitions. This
work intends to create clarity by proposing a clear international legal approach
to femicide beyond a misleading focus on killings. It considers that sexual
violence and other forms of gender-based violence can constitute methods of
femicide to relegate the targeted female social group to a lower social position,
where such violence remains unpunished by the State—while keeping the
female social group alive. A human rights concept of femicide would help
191 The English text of the ECHR and its Protocols use male language, ‘he,’ eight
times in listing human rights violations, Art. 5(2)(a), (c) and (e) ECHR (right to liberty
and security).
192 Holmes (n 27) 260. See also n 190.
193 Ibid., 250–251; MacKinnon (n 25) 41–43.
194 UNGA, ‘Report of the Special Rapporteur on Violence Against Women, its
Causes and Consequences’ (16 May 2012) UN Doc A/HRC/20/16/Add., 10.
195 Ibid.
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34 Conceptualizing femicide as a human rights violation
States recognize harm to women and girls as continuous and multi-faceted,
thereby enabling them to take adequate preventive measures.
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35
PART I
FEMICIDE AND INTERNATIONAL
CRIMINAL LAW
This Part seeks to understand how core international crimes—i.e., war crimes,
crimes against humanity, and genocide—relate to the concept of femicide.
I identify relevant elements from this analysis to delineate aspects of femicide
in international law and foreshadow state responsibility for femicide. Given
that each element of a crime must be met for individual criminal liability to
apply, this part examines each element of the relevant crime separately. Part
I is neither primarily concerned with the impact of the prosecution’s decision
to bring or amend charges relating to gender-based crimes, nor does it describe
international criminal responsibility, complicity, and command responsibility
for gender-based crimes. Instead, this part draws lessons from the ways in
which gender-based violence, and especially sexual violence as an ingredient
of femicide, was dealt with in international criminal law.
Part I includes three steps. Its first chapter (Chapter 2) addresses femicide
and armed conflict broadly. Considering historical attempts to outlaw rape in
war, Chapter 2 shows that precedents exist to criminalize acts of femicide, such
as rape, in international law, on which I can build to conceptualize femicide. In
light of the vast research on conflict-related rape and sexual violence, Chapter
2 provides a glimpse of the legal framework on gender-based violence in times
of war. This particularly informative look at how the laws of war address
crimes against women and girls is the primary point of inquiry in formulating
a concept of femicide in human rights law. A glance at the gendered nature of
wars, including the exclusion of women from combatant forces, illuminates
the context in which acts of femicide occur. At the same time, how authorities
deal with rape in armed conflict (i.e., whether they prohibit such conduct)
impacts soldiers’ behavior in peacetime, absent an adequate transitional justice
mechanism dealing with past human rights abuses.
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36 Conceptualizing femicide as a human rights violation
Chapter 3 analyzes the elements of crimes against humanity to consider
whether some aspects of this crime may serve to conceptualize femicide. Since
women and girls make up around half of the world’s ‘humanity,’ aspects of
crimes against humanity, such as the contextual element, and its ‘methods,’
may be particularly promising in conceptualizing femicide. Chapter 4 then
draws parallels, and highlights distinctions, between femicide and genocide.
This discussion expounds on the crucial role sexual violence plays in the
commission of genocide, and likewise in femicide. It explains the limits
of recognition for sexual violence when it is not clearly named in statutory
language. Another characteristic of genocide is its focus on entire groups,
rather than a civilian population in crimes against humanity, which makes it
particularly interesting for comparison with femicide. Lessons learned from
the genocide framework may inspire the construction of femicide as a human
rights violation.
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37
2. Femicide and (the laws of) war
INTRODUCTION
The first attempts of the international community to deal with femicide are
present in historical ‘laws of war’ and international humanitarian law (IHL),
one of the oldest branches of international law, which is particularly biased
against women and girls whom it rarely views as rights holders. Gendered
conflict dynamics can be seen in the protection of the object of femicide, the
female social group, which makes up a large part of the civilian population.
Equally important, this chapter exposes the role of sexual violence—the most
distinctive experience of gendered harm of women in armed conflict—as
a typical method of femicide, merely seen as an honor offence in armed con-
flict. Conflict-related rape and sexual violence have also been considered in
the International Criminal Tribunal for the former Yugoslavia (ICTY) and the
International Criminal Tribunal for Rwanda (ICTR)’s case law, which reme-
died some of IHL’s failures to address sexual and other gender-based violence.
These approaches highlight that sexual violence has long been addressed and
condemned in the law. They also show some of the struggles in reading sexual
violence, which ought to be a serious human rights violation, into existing IHL
concepts. Beyond IHL approaches to sexual violence, the wartime context of
violence where femicide occurs, tends to translate into post-conflict peacetime
rapes committed by private individuals. This relationship between peacetime
and post-conflict violence sheds light on the contextual element of femicide
and its systemic nature.
GENDERED CONFLICT DYNAMICS
Female Civilian Populations
The objects of attack in femicide are women and girls, often the civilian
population for which IHL provides limited protection in the deeply gendered
context of armed conflict. In many societies, the law requires able men (and
sometimes boys) to take up arms, while the mainly female civilian population
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38 Conceptualizing femicide as a human rights violation
is kept from the battlefield and is victimized by war.1 As civilians, women
and girls tend to perform roles as caretakers of younger generations and the
elderly in conflict settings.2 Even though women and girls may occasionally
take up arms and may even be compelled to serve in the military, this is not
a widespread phenomenon.3 Consequently, women may be underrepresented
in military leadership roles. Men decide on how war is waged and what
methods are permissible.4 Feminist scholars have argued that the military is
a zone for preservation of masculinity and power, where ‘women are passive
spectators to the action in the center of the ring.’5 That the military is a male
institutionalized space can also illustrate how the laws on armed conflict treat
women and girls.
Although IHL protects female and male combatants alike, it protects
civilians to a lesser extent. While it does not openly favor men over women,
IHL chiefly protects combatants’ (and therefore often male) conduct. Sexual
violence and rape, mostly suffered by civilian women, has remained largely
unaddressed.6 At a first glance, the limited protection awarded to women may
seem legitimate. As the main actors in the arena of warfare, men are more
likely to be killed or captured in their role as combatants.7 However, examples
from the war in Syria show that civilians account for most war casualties in
1 Marco Sassoli and Antoine Bouver, How Does Law Protect in War? Cases,
Documents and Teaching Materials on Contemporary Practice in International
Humanitarian Law, 2nd edition (ICRC 2006), Vol. I, 176.
2 Christine Chinkin, ‘Gender and Armed Conflict’ in Andrew Clapham and Paola
Gaeta (eds), The Oxford Handbook of International Law in Armed Conflict (Oxford
University Press 2014) 682–683. See Kathrin Greve, Vergewaltigung als Völkermord,
Aufklärung Sexueller Gewalt gegen Frauen vor Internationalen Strafgerichten (Nomos
2008) 192. See also Hilary Charlesworth and Christine Chinkin, The Boundaries of
International Law, a Feminist Analysis (Juris Publishing 2000) 256–257; Kelly Askin,
War Crimes Against Women (Kluwer Law International 1997) 254; Judith Gardam,
‘Women and the Law of Armed Conflict: Why the Silence?’ (1997) 46 International
and Comparative Law Quarterly 55–80 at 59.
3 Mandatory military service may only be compulsory for men. For example, it
applies for Swiss men, while women may join the armed forces voluntarily. Israel is
an exception, as women are regularly integrated in the armed forces. See Askin (n 2)
254; Art. 59 Federal Constitution of the Swiss Confederation of 18 April 1999 (Swiss
Constitution) [unofficial English translation, https:// www .fedlex .admin .ch/ eli/ cc/ 1999/
404/ en]. All online sources were accessed 30 October 2021.
4 Askin (n 2) 254.
5 Susan Brownmiller, Against Our Will (Fawcett Columbine 1975) 32.
6 Jean-Marie Henckaerts and Louise Doswald-Beck, Customary International
Humanitarian Law, Rules (Cambridge University Press 2009) 475.
7 Charlesworth and Chinkin (n 2) 251.
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Femicide and (the laws of) war
modern warfare.8 Security Council (SC) Resolution 1820 (2008) notes that
the predominantly female civilian population is specifically at risk of harm in
wartime.9
Peacetime and Wartime Rapes
The scale of rapes and sexual violence committed in peacetime femicide sit-
uations could be compared to the civilian casualties in war.10 But what is the
relationship between peacetime and wartime rapes? Generally, the prevalence
of wartime rape correlates to how prevalent rape and sexual violence are in
peacetime situations.11 Conversely, wartime rapes also seem to influence the
frequency of rapes in post-war periods. Wood notes an absence of sexual vio-
lence on the part of the Tamil insurgent group Liberation Tigers of Tamil Eelam
against civilians and some insurgents in El Salvador, presumably springing
from a peacetime context with little domestic violence.12 After the war in the
former Yugoslavia, reports revealed a significant rise in the domestic violence
rates in Croatia.13 Where peacetime domestic violence was present, women
were more likely to be raped in times of war.14 In this sense, the rapes of Tutsi
women and girls during the Rwandan genocide arose from a peacetime context
8 Watson Institute of International Affairs, Brown University, ‘Costs of War’
(2019), https:// watson .brown .edu/ costsofwar/ costs/ human/ civilians.
9 UNSC Res 1820 (19 June 2008) UN Doc S/RES/1820. The UN SC has issued
a number of resolutions on ‘women, peace, and security,’ some of which concern the
commission of conflict related rapes. See, e.g., UNSC Res 1325 (31 October 2000) UN
Doc S/RES/1325; UNSC 1960 (16 December 2010) UN Doc S/RES/1960, and most
recently, UNSC Resolution 2467 (23 April 2019) UN Doc S/RES/2467. Askin (n 2)
251; Laignee Barron, ‘I Am Doing This for Every Place Where Rape Is a Weapon of
War: Meet the Woman Documenting Sexual Violence Against Myanmar's Rohingya’
TIME (27 March 2019), https:// time .com/ 5559388/ razia -sultana -rohingya -myanmar
-sexual -violence -documentation/ .
10 See Catharine MacKinnon, Are Women Human? And Other International
Dialogues (Harvard University Press 2007) 144.
11 Elizabeth Wood, ‘Armed Groups and Sexual Violence: When Is Wartime
Rape Rare?’ (2009) 37(1) Politics & Society 131–162 at 143; Maria Olujic,
‘Embodiment of Terror: Gendered Violence in Peacetime and Wartime in Croatia and
Bosnia-Herzegovina’ (1998) 12(1) Medical Anthropology Quarterly 31–50 at 32–33.
12 Wood (n 11) 132 and 143.
13 See Samantha Bradley, ‘Domestic and Family Violence in Post-Conflict
Communities: International Human Rights Law and the State’s Obligation to Protect
Women and Children’ (2018) 20(2) Health and Human Rights Journal 123–136 at
123–126.
14 Rashida Manjoo, ‘Widespread and Pervasive Violation of our Human Rights’
(2016) 72 Socialist Lawyer 36–38 at 38.
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40 Conceptualizing femicide as a human rights violation
plagued by domestic violence and sexual assault.15 Consequently, women’s
social status in peacetime affects how they are targeted in wartime and vice
versa. Being mindful of this link is valuable for a general understanding of the
social context in which femicide emerges and which facilitates its widespread
occurrence in turn.
Femicide is often characterized by widespread sexual violence. In contrast
to (instant) killings, the paradigmatic method perpetrated against men and
boys, sexual violence is the classic way by which femicide is committed. As
such, sexual violence must not be overshadowed by instant killings.16 Not all
sexual violence committed everyday would become femicide. Only sexual
violence that is exacerbated by war or another catastrophe would make rape
and other violence femicide. Brownmiller, Copelon and MacKinnon agree that
conflict-related rapes are an intensified form of peacetime violence against
women.17 Brownmiller suggests that riots and wartime constitute an ‘excuse’
for some men to engage in rapes and sexual violence, a statement which may
be excessively broad considering the many causes for war.18 MacKinnon
points out that ‘[the Bosnian war] is to everyday rape what the Holocaust was
to everyday anti-Semitism,’ which points towards the similarities between
femicide and genocide.19 She further recognizes the intersectional composition
of the targeted social group as she mixes ethnicity into the equation, arguing
that it intersects with gender since women in armed conflict are raped as
women as well as members of an ethnic population.20 Copelon insists that rape
in armed conflict is akin to rape committed in everyday contexts of domestic
violence, and that attempts to emphasize conflict-related rapes bear the risk of
trivializing the pervasive rapes committed in peacetime.21 She maintains that
‘[r]ape and genocide are separate atrocities. […] [R]ape is sexualized violence
that seeks to destroy a woman based on her identity as a woman.’22 In line
15 Jennie Burnet, ‘Rape as a Weapon of Genocide: Gender, Patriarchy, and Sexual
Violence in the Rwandan Genocide’ (2015) 13 Anthropology Faculty Publications
1–31.
16 See Margareth Etienne, ‘Addressing Gender-based Violence in an International
Context’ (1995) 18 Harvard Women’s Law Journal 139–170 at 142.
17 MacKinnon (n 10) 144.
18 Brownmiller (n 5) 114 and 256.
19 MacKinnon (n 10) 144.
20 Ibid., 144–146.
21 Rhonda Copelon, ‘Gendered War Crimes: Reconceptualizing Rape in Time
of War’ in Julie Peters and Andrea Wolper (eds), Women’s Rights, Human Rights:
International Feminist Perspectives (Routledge 1995) 197 and 199–200.
22 Rhonda Copelon, ‘Surfacing Gender: Re-Engraving Crimes Against Women in
International Humanitarian Law’ (1994) 5(2) Hastings Women’s Law Journal 243–266
at 246.
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41
Femicide and (the laws of) war
with Copelon, I consider that the aim of femicide is distinct from genocide
(typically, the physical extinction of a group). Femicide aims at socially sub-
jugating a group, femicide should exist as a parallel human rights violation,
alongside the term genocide.
Furthermore, what States do or do not do in war may, at least, contribute to,
if not engage, international state responsibility for femicide. Wood suggests
that when military leaders tell their subordinates to refrain from raping and
they enforce these orders, rapes are less likely to take place.23 Conversely,
should national authorities order their troops to rape, they likely contribute
to the risk for women and girls to be subjected to violence.24 Ample attention
has been devoted to rape inflicted on women’s bodies under orders.25 SC
Resolution 1820 (2008) is vocal on the use of sexual violence against women
as a weapon of war, noting that ‘as a tactic of war in order to deliberately
target civilians or as part of a widespread or systematic attack against civilian
populations, [sexual violence] can significantly exacerbate situations of armed
conflict and may impede the restoration of international peace and security.’26
Some state authorities have ensured that their troops refrain from violating
female civilians, condemning and even prohibiting rape.27 Of direct relevance
to the post-conflict femicides in Guatemala (see Chapter 7), sexual violence
was used to oppose insurgent groups in the Guatemalan civil war which has
influenced the frequency of sexual violence today. This structural component
of femicide, which makes it a widespread human rights violation, commit-
ted against a group, foreshadows that ICL can be useful in conceptualizing
femicide.
WAR-RELATED APPROACHES TO SEXUAL
VIOLENCE
An Ancient Crime
The idea that sexual violence should be addressed in the strongest terms, as
I propose it should in a femicide concept, is nothing new. Some of the earliest
laws of war fiercely outlawed sexual violence and rape. These precedents can
23 Wood (n 11) 140.
24 Ibid.
25 On rape as a strategy of war in the former Yugoslavia, see UNSC, Final Report
of the Commission of Experts Established Pursuant to UNSC Res 780 (27 May 1994)
UN Doc S/1994/674, para. 250.
26 UNSC Res 1820 (29 June 2008) UN Doc S/RES/1820, para. 1.
27 See Alexander Gillespie, A History of the Laws of War: The Customs of War with
Regards to Civilians in Times of Conflict (Hart Publishing 2011), Vol. II, 121.
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42 Conceptualizing femicide as a human rights violation
be regarded as the first step in the quest to conceptualize femicide. Grotius
(1583–1645), also known as the father of international law, condemned rape
as brutal and unnecessary, calling for its criminalization in times of war and
peace.28 Grotius maintained that sexual assault was not only inconsistent with
the laws of war but should be prohibited as a part of the laws of nations. He
concluded that ‘[rape] deserves to be punished in every Country [sic].’29 Gentili
(1552–1608) also called for the prohibition of rape during armed conflict.
Gentili argued that even women who took an active part in warfare, should not
be raped.30 Taking a more patriarchal approach, Emer de Vattel (1714–1767)
contended that women should only be spared from sexual violence as long as
they kept to the duties of their sex and did not take up arms.31 Yet, in reference
to the abduction and rapes of the Sabine women, he stated that ‘no woman in
particular can be constrained in her choice, nor become, by right, the wife of
a man who carries her off by force.’32 These early jurists concluded that, under
most circumstances, rape was indeed prohibited under the laws of war.
The most notable precedent for the prohibition of rape in wartime was set
during the US Civil War with the 1863 Lieber Code, which codified customary
international law (CIL) related to warfare. Especially progressive concerning
the protection of the civilian population, Article 44 of the Lieber Code fiercely
prohibited rape, making it punishable by death.33 The Lieber Code further
required ‘punishment for crimes punishable by all penal codes,’ such as rape
committed on hostile territory.34 Although the Lieber Code was a national code
of warfare, it laid essential foundations for the laws of war in IHL and consti-
tuted a gain for the recognition of rape as a prohibited act.35 However, entering
28 Hugo Grotius (au), Richard Tuck (ed), The Rights of War and Peace Book III
(Liberty Fund 2005); Kelly Askin, ‘Treatment of Sexual Violence in Armed Conflicts:
A Historical Perspective and the Way Forward’ in Anne-Marie De Brouwer et al. (eds),
Sexual Violence as an International Crime: Interdisciplinary Approaches (Intersentia
2012) 24.
29 Grotius (n 28) 1301.
30 Askin, ‘Treatment of Sexual Violence’ (n 28) 22.
31 Emer De Vattel (au), Béla Kapossy and Richard Whitmore (eds), ‘The Law of
Nations, Or, Principles of the Law of Nature, Applied to the Conduct and Affairs of
Nations and Sovereigns, with Three Early Essays on the Origin and Nature of Natural
Law and on Luxury’ (Liberty Fund 2008) 145.
32 Ibid., 122 and 145.
33 Art. 44 Lieber Code, promulgated as General Orders No 110 by President
Lincoln, 24 April 1863, http:// avalon .law .yale .edu/ 19th _century/ lieber .as.
34 Arts 44 and 47 Lieber Code; Rhonda Copelon, ‘Toward Accountability for
Violence Against Women in War’ in Elizabeth D. Heineman (ed), Sexual Violence in
Conflict Zones, From the Ancient World to the Era of Human Rights (University of
Pennsylvania Press 2011) 235.
35 Askin (n 28) 26.
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43
Femicide and (the laws of) war
into force one year after the adoption of the Lieber Code, the 1864 Geneva
Convention, and the three subsequent 1949 Geneva Conventions, codifying
contemporary IHL, were blind to the severity of rape.
An Offence against Honor
IHL presupposes that woman are ‘weak’ and ‘powerless’ and thus considers
them insofar their ‘honor’ is violated.36 Only seen as an attack against men’s
honor and property, violence against women was an historically accepted
by-product of war.37 Armed forces who had won a war had earned the privilege
to rape women as a sort of trophy for their service.38 If men failed to protect
‘their’ women from rapes and sexual violence, men’s sense of masculinity and
their (and society’s) honor was violated, an issue still seemingly prevalent in
many honor crimes today.39
The historical legitimacy of rape during war explains why the laws of
war provide little legal protection for women and girls in conflict-settings.40
IHL, also known as ius in bello (law in war), attempts to mitigate the effects
of armed conflict by protecting wounded soldiers, prisoners of war, and the
civilian population. It comprises the Hague Conventions—humanitarian law
instruments on the use of weapons and methods of warfare, adopted by the
Hague Peace Conferences of 1899 and 1907—and the four 1949 Geneva
Conventions, supplemented by three Additional Protocols (APs).41 Under IHL,
36 Judith Gardam, ‘War, Law, Terror, Nothing New for Women’ (2010) 32
Australian Feminist Law Journal 61–75 at 62.
37 Gardam (n 2) at 57; Gillespie (n 27) 120.
38 Kelly Askin, ‘Prosecuting Wartime Rape and other Gender-Related Crimes
under International Law, Extraordinary Advances, Enduring Obstacles’ in Sari Kouvo
and Zoe Pearson (eds), Gender and International Law (Routledge 2014) 182.
39 Copelon (n 21) 200.
40 Fionnuala Ní Aoláin et al., ‘Criminal Justice for Gendered Violence and Beyond’
(2011) 11 International Criminal Law Review 425–443 at 428.
41 See Copelon (n 34) 235. The Hague Conventions of 1899 (II) and 1907 (IV)
respecting the Laws and Customs of War on Land; Geneva Convention (I) for the
Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field
(adopted 12 August 1945, entered into force 21 October 1950) 6 UST 3114, 75 UNTS
31; Geneva Convention (II) for the Amelioration of the Condition of Wounded, Sick
and Shipwrecked Members of Armed Forces at Sea (adopted 12 August 1945, entered
into force 21 October 1950) 6 UST 3217, 75 UNTS 85; Geneva Convention (III)
Relative to the Treatment of Prisoners of War (adopted 12 August 1945, entered into
force 21 October 1950) 6 UST 3316, 75 UNTS 135; Geneva Convention (IV) Relative
to the Protection of Civilian Persons in Time of War (adopted 12 August 1945, entered
into force 21 October 1950) 6 UST 3516, 75 UNTS 287; Protocol Additional (I) to the
Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of
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44 Conceptualizing femicide as a human rights violation
relevant provisions protect women from attacks against their honor or dignity.
IHL has awarded ambiguous, and at times patronizing protection to civilian
women and girls. The Hague Convention 1907 disregarded the Lieber Code’s
recognition of rape as a prohibited crime. Instead, Article XLVI merely pro-
tects individuals against attacks on family honor, implicitly encompassing rape
and sexual violence. Moreover, the Geneva Conventions I–IV and the APs do
not define rape. Much of the obscured nature of rape and sexual violence in
IHL becomes evident when examining the scant legal framework relevant to
civilian women in armed conflict.
First and foremost, Common Article 3, which is identical in each of the
Geneva Conventions and applies to both internal and international armed
conflict,42 sets forth minimum guarantees which parties to the conflict must
observe.43 While Common Article 3 does not refer to sexual crimes, ‘[o]utrages
upon personal dignity, in particular humiliating and degrading treatment’ have
been interpreted to include rape and sexual crimes.44 Novak suggests that
‘outrages upon personal dignity’ is comparable to ‘degrading treatment’ in
human rights law. As such, it constitutes the ‘least serious type of ill-treatment
under [IHL].’45 To make the severity of the harm of rape visible, ‘torture,’ also
prohibited under Common Article 3, is generic enough to encompass rape and
sexual abuse.46
Most relevant to the female civilian population, Geneva Convention IV,
Relative to the Protection of Civilian Persons in Time of War, states in Article
27(2) that ‘[w]omen shall be especially protected against any attack on their
honour, in particular against rape, enforced prostitution, or any form of inde-
cent assault.’47 Article 27(2) Geneva Convention IV does not recognize rape
as a violent crime, but it has been interpreted as a legally binding norm which
International Armed Conflicts (adopted 8 June 1977, entered into force 7 December
1978), 1125 UNTS 3, 16 ILM 1331; Protocol Additional (II) to the Geneva Conventions
of 12 August 1949, and Relating to the Protection of Victims of Non-International
Armed Conflicts (adopted 8 June 1977, entered into force 7 December 1978) 1125
UNTS 609.
42 Prosecutor v. Tadić (Decision on the Defence Motion for Interlocutory Appeal
on Jurisdiction) ICTY-94-1-AR72 (2 October 1995) [hereinafter Tadić Jurisdiction
Decision], paras 98–127.
43 Askin (n 2) 249.
44 Copelon (n 34) 236.
45 Manfred Nowak, ‘Torture and Other Cruel, Inhuman, or Degrading Treatment
or Punishment’ in Andrew Clapham and Paola Gaeta (eds), The Oxford Handbook of
International Law in Armed Conflict (Oxford University Press 2014) 400.
46 Copelon (n 21) 202.
47 Art. 27(2) Geneva Convention IV.
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45
Femicide and (the laws of) war
prohibits sexual assault on women.48 Its problematic understanding that rape
infringes upon women’s honor, both in wartime and more generally, must
be criticized for several reasons. First of all, the framing in terms of honor
ignores that rape and sexual crimes are experienced by women as severe
violent acts.49 Seen as a severe offense, rape would warrant prosecution as
torture, whereas mere insults of someone’s honor or reputation may not.50 This
reference to honor stereotypes women as secondly, when women’s honor is
the protected good, what about women who society perceives to be dishonor-
able, such as prostitutes, or those who follow a lifestyle contrary to existing
moral standards? The protection of women’s honor could lead to problematic
investigations into women’s prior sexual conduct to determine whether these
women are worthy of legal protection.51 Regrettably, these stereotypes of
women’s worth in terms of their honor lead to inaction by state authorities and
perpetuate impunity in femicide. In addition, the reference to honor centers
on the victim, blaming and shaming her for being raped, instead of punishing
the perpetrator.52 Finally, protecting women based on honor may mean that
women are viewed as accessories and dependants on men.53 These stereotypes
thus limit the application of IHL to women and girls.54
Geneva Convention I, for the Amelioration of the Condition of the Wounded
in Armies in the Field 1864, and Geneva Convention II, for the Amelioration
of the Condition of Wounded, Sick and Shipwrecked Members of Armed
Forces at Sea 1949, reflect the gender dynamics of armed conflict, where men
engage in combat. Both Conventions state that women ‘shall be treated with
all consideration due to their sex.’55 The Geneva Convention III, relative to the
Treatment of Prisoners of War, adds that ‘[women] shall in all cases benefit
by treatment as favourable as that granted to men,’56 and specifies that women
prisoners of war ‘shall be confined in separate quarters from male prisoners
48 See Helen Durham, ‘International Humanitarian Law and the Protection against
Women’ in Helen Durham and Tracey Gurd (eds), Listening to the Silences: Women
and War (Brill 2005) 98. See also Chinkin (n 2) 682; Alona Hagay-Frey, Sex and
Gender Crimes in the New International Law: Past, Present, and Future (Brill 2011)
70.
49 Copelon (n 34) 236; Daniela Nadji, International Criminal Law and Sexual
Violence Against Women: The Interpretation of Gender in the Contemporary
International Criminal Trial (Routledge 2018) 61; Hagay-Frey (n 48) 70.
50 Nadji (n 49) 62; Gardam (n 2) 74.
51 See Greve (n 2) 88–89; Copelon (n 21) 201.
52 See also Askin (n 2) 367.
53 Gardam (n 36) 71–72.
54 Ibid., 72–73.
55 Art. 12 Geneva Convention I and Geneva Convention II.
56 Art. 14 Geneva Convention III.
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46 Conceptualizing femicide as a human rights violation
of war.’57 The separation of women and men who are deprived of their liberty
could be seen as an attempt to protect women prisoners of war from sexual
violence.58
The Additional Protocols to the Geneva Conventions respond to VAWG by
explicitly listing rape and sexual violence.59 One evident shortcoming is their
limited reach, confined to the States which have ratified them.60 Article 76 AP
I regards women as the ‘object[s] of special respect [who] shall be protected
in particular against rape, forced prostitution and any other form of indecent
assault.’61 While it does not mention family honor, Article 76 AP I conveys the
message that women are vulnerable and weak beings.62 This shifts the focus
to the notion of the delicate female victim who needs to be shielded from the
perpetrator, instead of the much-needed consideration of the perpetrator’s
criminal responsibility and the violent nature of the acts.63 AP I still does not
fully see women as subjects who can make their own decisions, but at least
recognizes that certain gender-based acts, such as rape and forced prostitution,
must be prohibited.64 AP II, applicable to non-international armed conflicts,
contains similar weak language on the protection of women and girls.65 It
should be noted that rape and sexual violence are not listed among the ‘grave
breaches’ of IHL, which would attract universal jurisdiction.66 While efforts
such as the 1974 Declaration on the Protection of Women and Children in
57 Arts 14 and 97 Geneva Convention IV.
58 ICRC, ‘Customary IHL: Rule 134, Women,’ www .icrc .org/ customary -ihl/ eng/
docs/ v1 _cha _chapter39 rule134.
59 Copelon (n 34) 237.
60 Hagay-Frey (n 48) 75–76. 174 States ratified, and three States signed Additional
Protocol I; 169 States ratified, and three States signed Additional Protocol II. ICRC,
Treaties, States Parties and Commentaries (AP I), https:// ihl -databases .icrc .org/ applic/
ihl/ ihl .nsf/ Treaty .xsp ?documentId = D9 E6B6264D77 23C3C12563 CD002D6CE4 &
action = openDocument; CRC, Treaties, States Parties and Commentaries (AP II), https://
ihl -databases .icrc .org/ applic/ ihl/ ihl .nsf/ Treaty .xsp ?documentId = AA 0C5BCBAB5C
4A85C12563 CD002D6D09 & action = openDocument.
61 See Chinkin (n 2) 682.
62 Nadji (n 49) 62.
63 Greve (n 2) 89–90; Hagay-Frey (n 48) 71–72.
64 Nadji (n 49) 61.
65 See Art 4(1)–(2) AP II; Chinkin (n 2) 682.
66 Art 50 Geneva Convention I; Art 51 of Geneva Convention II; Art. 130 Geneva
Convention III; Art. 147 Geneva Convention IV. See also Arts 11(4) and 85 Protocol
I; Askin (n 38) 189–190. On grave breaches and universal jurisdiction, see Anne-Marie
De Brouwer, Supranational Criminal Prosecution of Sexual Violence: The ICC and the
Practice of the ICTY and the ICTR (Intersentia 2005) 180; Copelon (n 22) 250.
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47
Femicide and (the laws of) war
Emergency and Armed Conflict have attempted to denounce violence against
women, their non-binding nature limits their impact.67
Sexual violence and rape fall either directly or by interpretation under the
Geneva Conventions as well as under Common Article 3, despite the patron-
izing lens through which IHL views women.68 Yet, rape and sexual harm are
only recognized as implicit offences against honor or personal dignity, rather
than serious crimes. As Askin explains, it is not enough to implicitly recognize
rape and sexual violence in vague and ambiguous provisions. To recognize
harm, international courts must ‘call the crimes what they are: rape, forced
prostitution, etc.’ Language like outrages upon personal dignity, is ‘neither
legally explicit nor commonly understood.’69 Crimes against women must be
clearly identified as such for violence against women to be taken seriously in
IHL. In order to hone these vague and ambiguous provisions, judges could
interpret these terms broadly, or a new AP to the 1949 Geneva Conventions
could be adopted.70
A ‘Modern’ Crime?
The Charter of the first international criminal tribunal, the International
Military Tribunal in Nuremberg (IMT), did not include rape and sexual vio-
lence as war crimes or crimes against humanity.71 Nevertheless, the Nuremberg
transcripts listed ample evidence of rapes committed by German troops:
In the Ukrainian village of Borodayevka, […] the fascists violated every one of the
women and girls. […] drunken German soldiers assaulted and carried off all the
women and girls between the ages of 16 and 30. […] The Germans first raped and
then savagely murdered 36 [other girls]. [T]he soldiers marched L.I. Melchukova,
a 16-year-old girl, into the forest, where they raped her. A little later some other
women who had also been dragged into the forest saw some boards near the trees
67 Declaration on the Protection of Women and Children in Emergency and Armed
Conflict, UNGA Res 3318(XXIX) (14 December 1974) UN Doc A/Res3318(XXIX),
para. 5; Hagay-Frey (n 48) 76; Askin (n 2) 250.
68 See also Askin (n 2) 336.
69 Ibid., 370.
70 Ibid., 367; Gardam (n 2) 77.
71 Art. 6(b) International Military Tribunal in Nuremberg (IMT) Charter. The IMT
had jurisdiction over ‘crimes against peace,’ ‘war crimes,’ and ‘crimes against human-
ity’. On 8 August 1945, France, the UK, the US and the USSR entered the ‘Agreement
for the Prosecution and Punishment of Major War Criminals of the European Axis’ and
its Annex the Charter of the International Military Tribunal (IMT) (15 March 1951) 82
UNTS 279.
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48 Conceptualizing femicide as a human rights violation
and the dying Melchukova nailed to the boards. The Germans had cut off her breasts
in the presence of these women.72
This extract of evidence demonstrates extremely violent acts of rape and
sexual violence on the record. However, the legal implications of sexual
violence remained unaddressed. Chief Prosecutor Jackson barely investigated
the existing evidence and uncomfortably pronounced that ‘[t]he Tribunal will
forgive me if I avoid citing the atrocious details which follow,’ and ‘rapes were
committed. [..] I pass on.’73 Without being assessed properly, the evidence of
sexual crimes was absorbed into crimes against humanity and war crime con-
victions.74 Committed by all parties to the conflict, including Allied powers,
prosecuting sexual VAWG was likely seen as in neither sides’ interest.75 That
the IMT failed to confront sexual violence seriously, damaged its recognition
in the simultaneously developing human rights law.76
By contrast, the International Military Tribunal for the Far East in Tokyo
(IMTFE), the Asian counter-part to the IMT, found two defendants guilty
in the mass rapes of around 20,000 women and girls in Nanjing, China.77
Although the IMTFE’s Statute was silent on the issue of rape and sexual
violence, the prosecution’s indictment listed rape as a war crime under ‘inhu-
mane treatment,’ ‘ill-treatment,’ and a ‘failure to respect family honor and
rights.’78 However, much of the IMTFE’s contribution to the recognition of
gender-based harm is half-hearted. It discussed the rapes in Nanjing summar-
ily: ‘Even girls of tender years and old women were raped in large numbers
throughout the city, and many cases of abnormal and sadistic behavior in
connection with these [sic] rapings occurred. Many women were killed after
the act, and their bodies mutilated.’79 Two reasons may have led the IMTFE to
adjudicate sexual violence. The first reason relates to the potential of a politi-
72 Trial of the Major War Criminals before the International Military Tribunal,
Nuremberg, 14 November 1945-1 October 1946, Vol. 7, paras 454–456, www .loc .gov/
rr/ frd/ Military _Law/ NT _major -war -criminals .html.
73 Ibid., paras 405–406.
74 Chinkin (n 2) 682; Askin (n 28) 33.
75 Copelon (n 22) 244. See also Askin (n 2) 163.
76 See MacKinnon (n 10) 177.
77 International Military Tribunal for the Far East (IMTFE) (12 November 1948),
in John Pitchard and Sonia Zaide (eds), The Tokyo War Crimes Trial (Garland
Publisher 1981) [hereinafter IMTFE Judgment], paras 49 and 791–792; James Burnham
Sedgwick, ‘Memory on Trial: Constructing and Contesting the “Rape of Nanking” at
the International Military Tribunal for the Far East 1946–1948’ (2009) 43(5) Modern
Asian Studies 1229–1254 at 1233.
78 Askin (n 2) 202.
79 IMTFE Judgment, para. 49605.
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49
Femicide and (the laws of) war
cized endeavor to vilify the Japanese army as rapists. The second issue at hand
was that the extent of the massacre and rapes could not be easily ignored.80 The
IMTFE’s adjudication did not seem to come from a desire to punish perpetra-
tors, as Judge Pal vehemently questioned the veracity of the rape evidence.81
Regrettably, the Tribunal failed to hear testimony from any surviving rape
victim.82
Conspicuously, the IMTFE completely disregarded the Japanese army’s
sexual enslavement of women and girls.83 Between 1937 and 1945, Japan
recruited—often under false pretexts—200,000 ‘comfort women,’ a euphe-
mism for sex slaves, for the Japanese army.84 It was precisely the Japanese
military policy which made Japanese soldiers prone to commit rapes against
civilians in Nanjing; the soldiers had been trained to regard women as sexual
objects.85 The orchestrated system for the enslavement of women to ‘comfort’
combatants was such a normalized aspect of war that the Prosecution must
have viewed it as its by-product. It is remarkable that rape used against adverse
forces was examined, whereas sexual slavery against their own and occupied
female social groups fell outside the purview of punishable acts.86
More recently established international criminal tribunals have made some
successful attempts to address rape and sexual violence as a war crime.87 The
ICTY Statute does not list rape and other sexual crimes as violations of the
laws or customs of war, or as grave breaches. However, rape and sexual vio-
lence can be read into the ICTY Statute’s war crime and the expansive grave
80 See Timothy Brook, ‘The Tokyo Judgment and the Rape of Nanking’ (2001)
60(3) The Journal of Asian Studies 673–700 at 673–674.
81 Some of Pal’s objections to the evidence of the rapes of Nanking are discussed in
ibid., 677–678.
82 Sedgwick (n 77) 1249.
83 Rhonda Copelon, ‘Gender Crimes as War Crimes: Integrating Crimes against
Women into International Criminal Law’ (2000) 46 McGill Law Journal 217–240
at 221. On the comfort women’s attempt to receive compensation in domestic
courts, see Yuma Totani, ‘Legal Responses to World War II Sexual Violence: The
Japanese Experience’ in Elizabeth Heineman (ed), Sexual Violence in Conflict Zones
(Pennsylvania University Press 2013) 222.
84 Copelon (n 83) 221.
85 Totani (n 83) 220.
86 Copelon (n 21) 204. See also the Women’s International War Crimes Tribunal
on Japan’s Military Sexual Slavery, a movement aiming to make women’s expe-
riences visible, which has gathered relevant testimonies discussing the fate of the
Japanese Comfort Women in 2001. Women’s Caucus for Gender Justice, ‘Transcript
of Oral Judgment, delivered in The Hague, The Netherlands’ (4 December 2001), www
.iccwomen .org/ wigjdraft1/ Archives/ oldWCGJ/ tokyo/ summary .html.
87 Ken Roberts, ‘The Contributions of the ICTY to the Grave Breaches Regime’
(2009) 7(4) Journal of International Criminal Justice 743–761 at 760.
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50 Conceptualizing femicide as a human rights violation
breaches provisions through interpretation.88 Article 3 ICTY Statute (violation
of the laws and customs of war) is an ‘umbrella provision’ which extends the
Court’s jurisdiction to all offences which would not otherwise be covered.89
Furthermore, in Prosecutor v. Mucic (Čelebići), the ICTY held that rape of
female prisoners in Čelebići prison camp constituted a grave breach as torture
under Article 2(b) ICTY Statute.90 Hence, rape, sexual assault, and other
gendered harm could be prosecuted despite their absence from the statutory
language.91 Without specific mention, however, the recognition of rape and
sexual violence remains dependent on prosecutorial discretion and judicial
interpretation.92 The ICTR Statute mirrors Common Article 3, but adds rape
to the ‘outrages upon personal dignity.’93 The most progressive recognition of
crimes against women is included in the International Criminal Court (ICC)’s
founding document: the Rome Statute.94 The Statute recognizes ‘rape, sexual
slavery, enforced prostitution, [and] forced pregnancy’ under its war crimes as
well as its grave breaches provisions.95
CONCLUDING REMARKS
The concept of femicide addresses an old problem in its modern iteration.
Remarkably, the idea that sexual crimes should be criminalized dates back to
Roman times and provides historical grounding for a concept of femicide. IHL
provides the basis for international criminal tribunals’ recognition of rape and
sexual violence as international crimes, even though it is largely inadequate for
conceptualizing femicide due to its focus on honor, implying moral wrongdo-
ing on the part of the victim, and failure to recognize sexual violence as serious
crimes. Although women and girls are not ideally protected and modern
IHL provisions take a paternalistic approach to sexual violence, the issue of
sexual violence was brought to the attention of the international community
88 See also Askin (n 2) 310–311.
89 Tadić Jurisdiction Decision (n 42) paras 89–93; Prosecutor v. Kunarac et al.
(Appeals Judgment) ICTY-96-23 and 23/1 (12 June 2002), para. 68.
90 Prosecutor v. Mucic (Čelebići), Case No. ICTY-96-21-A, Appeals Judgment, 20
February 2001, paras 125 and 136. See Roger O’Keefe, ‘The Grave Breaches Regime
and Universal Jurisdiction’ (2009) 7 Journal of International Criminal Justice 811–831
at 813.
91 Askin (n 2) 313.
92 Ibid.
93 As the Rwandan conflict was an internal one, no grave breaches provision was
included in the ICTR Statute. De Brouwer (n 66) 176.
94 Statute of the International Criminal Court (Rome Statute) (adopted 17 July
1998, entered into force 1 July 2002) 2187 UNTS 38544.
95 Arts 8(xxii) and 7(2)(f) Rome Statute.
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51
Femicide and (the laws of) war
in any case. The need to unveil and name the harm inherent in femicide was
exemplified with the ad hoc tribunal’s statutory language and the limits of its
interpretation. By creating a human rights law concept of femicide, the harm
can be exposed and given voice. Finally, the societal context of wartime can
shed light on the contextual aspect of femicide. Wartime strategy of violence
may persist against the female social group in peacetime.96 This is evidenced
by Guatemala’s Dos Erres and Plan de Sanchez massacres, and the recent kid-
nappings and murders of Maria Isabel Veliz Franco and Claudina Velásquez
Paiz examined in Chapter 7.
96 Wood (n 11) 136–137.
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52
3. Femicide and crimes against humanity
I worked for five years as a ‘comfort woman,’ but all my life I suffered from it. My
intestines are mostly removed because they were infected so many times, I have
not been able to have intercourse because of the painful and shameful experiences.
I cannot drink milk or fruit juices without feeling sick because it reminds me too much
of those dirty things they made me do.
Chong Ok Sun1
INTRODUCTION
Crimes against humanity—widespread or systematic attacks directed against
any civilian population, intentionally committed through various acts of
violence—are among ‘the most serious crimes of international concern.’2
At the core of this crime lies an offence against humankind itself.3 Although
scholars have suggested that femicide is a crime against humanity, they have
not systematically explored its elements in relation to femicide.4 This chapter
carefully investigates which aspects of crimes against humanity are useful
to conceptualize femicide in human rights law. The study of this concept of
crime is crucial as it includes some of the most progressive underlying acts in
relation to femicide.5 My focus is on rape, sexual slavery, and forced marriage.
These elements are relevant to the violence committed against female Yazidi
groups, forcibly married schoolgirls in Nigeria, and abductions and murders
1 Testimony of former ‘comfort woman’ Chong Ok Sun. Omar Swartz,
Transformative Communication Studies, Culture, Hierarchy and the Human Condition
(Troubadour Publishing 2008) 232–233.
2 Art. 1 and Preamble Statute of the International Criminal Court (Rome Statute)
(adopted 17 July 1998, entered into force 1 July 2002) 2187 UNTS 38544.
3 See Fausto Pocar, ‘Persecution as a Crime under International Law’ (2008) 2
Journal of National Security Law & Policy 355–365 at 355.
4 Alona Hagay-Frey, Sex and Gender Crimes in the New International Law:
Past, Present, and Future (Brill Nijhoff 2011) 151; Emily Chertoff, ‘Prosecuting
Gender-based Persecution: The Islamic State at the ICC’ (2017) 126(4) Yale Law Journal
1050–1117; Ana Messuti, ‘La Dimension Jurídica Internacional del Feminicidio’ in
Graciela Atencio (ed), Feminicidio, el Asesinato de Mujeres por ser Mujeres (Catarata
2015) 52; Fernando Mariño, ‘Una Reflexión sobre la posible Configuración del Crimen
de Feminicidio’ in Fernando Mariño et al. (eds), Feminicidio, El Fin de la Impunidad
(Tirant lo Blanche 2012) 113.
5 Art. 7(g) Rome Statute.
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53
Femicide and crimes against humanity
of female groups in Ciudad Juarez, mentioned in Chapter 1. I also unearth
the composite elements of persecution based on gender. With its contextual
element, the crimes against humanity concept also comes close to recognizing
widespread violence against the female social group. The ‘systematic’ or
policy requirement in crimes against humanity should yield to other contextual
elements, such as the widespread nature of such crimes, in the concept of femi-
cide. Finally, the content of crimes against humanity has reformed over time,
in contrast to the demarcation of the crime of genocide, which has remained
static. This suggests a certain latitude of its content and an openness to its
reinterpretation.
ELEMENTS OF CRIMES AGAINST HUMANITY
Crimes against humanity consist of three main elements, known as ‘elements
of crime.’ Firstly, a prohibited act, e.g., rape or sexual enslavement, must be
committed.6 Secondly, the crime must be part of an ‘attack,’ that is, a pattern
of other acts. The attack must further be embedded in the required context:
a widespread or systematic attack against a civilian population.7 A link to an
armed conflict is sometimes required. In relation to femicide, however, it is
sufficient to center on the widespread or systematic elements, which constitute
the umbrella requirements under the Rome Statute.8 Thirdly, since it is an
international crime, the perpetrator must intend to commit the act and must
be aware that the act is committed within the required context.9 As it provides
for the most advanced conception of crimes against humanity in international
criminal law (ICL), the Rome Statute is the starting point for my quest to
conceptualize femicide.
The Attack against any Civilian Population
The attack
At first glance, an ‘attack against any civilian population’ may seem to cor-
respond to attacks targeting a female social group. Crimes against humanity
6 See Art. 3 ICTR Statute; Art. 5 ICTY Statute.
7 William Schabas, The International Criminal Court: A Commentary on the
Rome Statute, 2nd edition (Oxford University Press 2016), 144.
8 Ibid. Art. 7(g) Rome Statute and Art. 3(g) ICTR Statute do not require a con-
nection to an armed conflict. The ICTY’s case law rejected the requirement of a policy
or plan in Prosecutor v. Kunarac et al. (Appeals Judgment) ICTY-96-23 and 23/1 (12
June 2002) [hereinafter Kunarac Appeal], paras 85–86 and 98. See ICC, Elements of
Crimes (EoC), 2011, para. 3.
9 Art. 7(1) Rome Statute.
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54 Conceptualizing femicide as a human rights violation
occur within a widespread or systematic attack against any civilian population.
Article 7(2) Rome Statute defines an attack as ‘a course of conduct involving
the multiple commission of acts […] against any civilian population, pursuant
to or in furtherance of a State or organizational policy to commit such attack.’10
The notion of attack refers to peacetime occurrences as opposed to military
acts under international humanitarian law (IHL). The attack, a ‘campaign’ or
‘operation,’11 comprises multiple acts (‘underlying acts’ or ‘crimes’) set out in
Article 7(1)(a)–(g) Rome Statute.12 An individual is accountable for a crime
against humanity if he or she commits an underlying act which is linked to the
overall attack.13 Even when committed at a distance from the main attack, acts
can still be part of the initial attack.14 Could the attack include patterns of acts
which terrorize the female social group as it occurs in femicide?
The ‘attack’ in femicide differs from ‘an attack against any civilian popu-
lation.’ While acts of femicide, such as rape or sexual slavery, are underlying
acts of crimes against humanity and would seem to form part of the attack, acts
of femicide carry a political message directed at a defined female social group,
thus going beyond the attack itself.15 When States do not punish perpetrators
who kill women, others may emulate the perpetrator, which may put the
female social group at risk of being harmed. When Lucia Perez was brutally
killed in Argentina, her brother demanded: ‘We want justice seriously, that
all the causes in which they are involved are investigated.’16 Such insidious
violence in femicide, where judicial systems fail to respond to crimes against
women and girls, amplifies and proliferates in a social climate of impunity.17
The political message conveyed through acts of femicide serves to warn
other women and girls, and ultimately maintains the female social group in
10 Art. 7(2) Rome Statute.
11 Prosecutor v. Katanga (Judgment pursuant to Article 74 of the Statute)
ICC-01/04-01/07 (7 March 2014), para. 1101.
12 Ibid., para. 1097.
13 Prosecutor v. Tadić (Decision on the Defence Motion for Interlocutory Appeal
on Jurisdiction) ICTY-94-1-AR72 (2 October 1995) para. 649; Hilary Charlesworth
and Christine Chinkin, The Boundaries of International Law, a Feminist Analysis (Juris
Publishing 2000) 320.
14 Kunarac Appeal (n 8) para. 99.
15 See Jane Caputi and Diana Russell, ‘Femicide: Sexist Terrorism against Women’
in Jill Radford and Diana Russell (eds), Femicide, The Politics of Women Killing
(Twayne Publishers 1993) 15.
16 Mar Centenera, ‘Matías Pérez, Hermano de Lucía, Asesinada y Violada:
“‘Queremos Justicia en Serio’” El Pais (19 October 2016), https:// elpais .com/
internacional/ 2016/ 10/ 18/ argentina/ 1476814557 _975224 .html. All online sources
were accessed 30 October 2021.
17 See Caputi and Russell (n 15) 15.
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55
Femicide and crimes against humanity
a subordinate position.18 When women’s bodies, presumably killed in private,
with cut or removed breasts are left in the streets, parking lots and cotton fields,
female members of society may be terrorized.19 Segato compellingly argues
that the public displacement of bodies unmistakably conveys the message that
perpetrators have the right to kill a woman and that they can do so in public
with impunity.20 The perpetrators assert political power when violence is left
unanswered and crimes against women and girls are not investigated. Subtle
‘political’ messages may also include instances of ‘overkilling,’ where more
bullets are used than necessary to kill the victim, often a characteristic of
domestic violence cases.21 Why is such extreme cruelty inflicted on women
and girl’s bodies?
Some women and girls are killed for attempting to assert power in a society
that does not allow women to exercise their rights fully.22 The aim of this
violence can be to remove power from women and girls.23 When a woman is
trying to end a relationship, refusing to give her earnings to her husband, or
doing something contrary to her protector’s will, some men and boys respond
with violence.24 The violence then expresses the message: ‘Women stay in
your place and behave as you ought to behave like women.’25 Girls abducted
by Boko Haram are coerced into their socially assigned place as wives through
forced marriages, denying them the possibility to continue their secular edu-
cation.26 As a result of Boko Haram’s threats, women and girls might refrain
18 See Mercedes Oliveira, ‘Violencia Feminicida: Violence Against Women
and Mexico’s Structural Crisis’ in Rosa-Linda Fregoso and Cynthia Bejarano (eds),
Terrorizing Women, Feminicide in the Americas (Duke University Press 2010) 51.
19 Ibid., 13. See also Susan Brownmiller, Against Our Will (Fawcett Columbine
1975) 184–188.
20 Rita Laura Segato, ‘Territory, Sovereignty, and Crimes of the Second State’ in
Rosa-Linda Fregoso and Cynthia Bejarano (eds), Terrorizing Women, Feminicide in
the Americas (Duke University Press 2010) 79.
21 UN Entity for Gender Equality and the Empowerment of Women, Latin
American Model Protocol for the Investigation of Gender-related Killings of Women
(Femicide/Feminicide) (2004), 72.
22 Oliveira (n 18) 50.
23 Susan Harris Rimmer, Gender and Transitional Justice, The Women of East
Timor (Routledge 2010) 126.
24 Caputi and Russell (n 15) 15. E.g., Editorial Board, ‘#NiUnaMenos: estos son
los cinco casos de feminicidio registrados en el 2019’ El Comercio (12 January 2019),
https:// elcomercio .pe/ peru/ niunamenos -son -cinco -casos -feminicidios -registrados
-2019 -noticia -596032.
25 Caputi and Russell (n 15) 15; Duncan Kennedy, Sexy Dressing Etc., Essays on
the Power and Politics of Cultural Identity (Harvard University Press 1993) 141.
26 Hilary Matfess, Women and the War on Boko Haram: Wives, Weapons, Witnesses
(Zed Books 2017) 118–123. Oriola stresses that women attained more agency under
Boko Haram, since they ‘only’ needed to cook and clean. Temitope Oriola, ‘“Unwilling
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56 Conceptualizing femicide as a human rights violation
from pursuing an education where they are subject to potential abductions.27
Similarly, in 2021, female Afghan judges were hunted by released prisoners
whom they had helped to convict.28 Such violence takes away women and
girl’s democratic power and alienates them from citizenship.29
Any civilian population
As women and girls are predominantly represented in the civilian population,
it may be conceivable that the term civilian population encompasses attacks
directed against women and girls as they occur in femicide.30 Crimes against
humanity must be directed against any civilian population, meaning that the
civilian population is the primary object of the attack.31 An attack under the
crimes against humanity provision must be directed towards civilians, rather
than unintentionally injuring them.32 Whether the attack is directed against
civilians, depends on ‘the means and methods used […], the status of the
victims, their numbers, the discriminatory context of the attack, the nature
of the crimes committed in its course, the resistance to the assailants at the
time […].’33 The notion of the civilian population must be understood in
broad terms. Any civilian population can be targeted. This means that indi-
viduals in their capacity as civilians—irrespective of national, racial, or ethnic
background—in contrast to the protection awarded to ‘national, ethnic, racial,
and religious’ groups in genocide can be attacked.34 Since crimes against
humanity are not necessarily related to or committed in armed conflicts, the
term ‘civilian population’ is comprehensive. Even soldiers and resistance
fighters who usually would not enjoy the same protection as civilians under
IHL could belong to the civilian population, e.g., when they lay down their
weapons and are thus hors de combat.35
Cocoons:” Boko Haram's War Against Women’ (2017) 40(2) Studies in Conflict &
Terrorism’ 99–121 at 105 and 112.
27 Global Coalition to protect Education from Attack, ‘I Will Never Go Back
to School’ 34, www .protectingeducation .org/ sites/ default/ files/ documents/ attacks _on
_nigerian _women _and _girls .pdf.
28 Claire Press, ‘Female Afghan judges hunted by the Murderers they convicted’
BBC (28 September 2021), https:// www .bbc .com/ news/ world -asia -58709353.
29 See Rimmer (n 23) 126.
30 See Charlesworth and Chinkin (n 13) 321.
31 Kunarac Appeal (n 8) para. 90; Katanga (n 11) para. 1103.
32 Prosecutor v. Bemba (Decision Pursuant to Article 61(7)(a) and (b) of the
Rome Statute on the Charges of the Prosecutor against Jean-Pierre Bemba Gombo)
ICC-01/05.01/08 (15 June 2009), para. 75.
33 Katanga (n 11) para. 1104.
34 Ibid., para. 1103.
35 Schabas (n 7) 154; Prosecutor v. Kordic et al. (Judgment) ICTY-95-14/2 (26
February 2001), para. 80; Tadić (n 13), para. 638.
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Femicide and crimes against humanity
However, women and girls in femicide are collectively targeted on the basis
of their gender, not merely because they happen to be women and girl civil-
ians.36 As envisioned by Lauterpacht, crimes against humanity protect indi-
vidual rather than group-related violence.37 The collective aspect of femicide
cannot be adequately addressed by the crimes against humanity concept which
focuses on the protection of individuals from violence, but is best captured by
Lemkin’s concept of genocide, which only protects individuals to the extent
they are affiliated with a protected group.38 Finally, the term civilian popu-
lation is misleading in recognizing harm inflicted on women and girls since
its generic language bears the risk of neglecting that some harm exclusively
targets women and girls.39 To emphasize that women and girls are the victims
in femicide, a specific response which helps unearth and name harm to women
and girls, is needed.40
The Contextual Elements
A regular crime becomes a crime against humanity when it takes place in
the relevant widespread or systematic context, and sometimes it has to meet
the additional requirements of a state policy or armed conflict.41 Femicide
has a central structural component, as a result of which the discussion of
relevant contextual elements (i.e., widespread; systematic; plan or policy) is
informing.42 As shown below, the ‘widespread element’ captures the struc-
tural component of femicide. Notably, I do not rely on a policy requirement
to conceptualize femicide, as such a requirement could be used to legitimize
dismissing rape charges as acts of femicide absent a state policy. Femicide
often being committed without an explicit state policy, this would perpetuate
the very impunity I seek to address. Through a formalistic legal exercise, the
policy element might be construed to include violence against female social
groups. Such an exercise is however impractical and redundant.
36 Simone De Beauvoir, The Second Sex (Vintage Books 2011) 7–9; Bonita
Meyersfeld, Domestic Violence and International Law (Hart Publishing 2011) 123–124.
37 See Philippe Sands, ‘East West Street: On the Origins of “Genocide” and
“Crimes Against Humanity”’ (2018) 16(4) Journal of International Criminal Justice
959–961.
38 See ibid.
39 See Hagay-Frey (n 4) 118.
40 Messuti (n 4) 53–54.
41 Antonio Cassese et al. (eds), Cassese’s International Criminal Law, 3rd edition
(Oxford University Press 2013) 93.
42 See Marcela Lagarde y de los Rios, ‘Preface’ in Rosa-Linda Fregoso and Cynthia
Bejarano (eds), Terrorizing Women, Feminicide in the Americas (Duke University
Press 2010) xx–xxi.
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58 Conceptualizing femicide as a human rights violation
Widespread
The ‘widespread’ element is one of the legal ingredients to establish the con-
textual framework for crimes against humanity and is useful to conceptualize
femicide in human rights law. Neither the Rome Statute nor the International
Criminal Court (ICC)’s Elements of Crimes (EoC)—a policy document which
assists the ICC in interpreting the Rome Statute—outline the meaning of the
term. The International Criminal Tribunal for the former Yugoslavia (ICTY)
specified that ‘widespread’ refers to the ‘large-scale nature of the attack and
the number of targeted persons.’43 An attack can be characterized as wide-
spread when a pattern of many violent acts exists (as opposed to isolated
incidents) which produces multiple victims.44 The widespread attack is either
‘cumulative,’ committed through ‘a series of inhumane acts,’ or ‘singular
[based on] an inhumane act of extraordinary magnitude,’ the former being of
relevance to femicide.45 The term ‘widespread’ refers to the extent to which
multiple acts affect the civilian population, yet it does not require a specific
number of people to be harmed.46 Femicide achieves a magnitude comparable
to crimes against humanity without being organized in the common sense.47
The widespread violence inherent in femicide is ‘rooted in social, political,
economic, and cultural inequalities.’48 Widespread violence against female
social groups may multiply in direct relation to the State’s non-response to the
practices.49 In this context, the term widespread adequately covers the multiple
acts of violence characterizing femicide, such as the killings of four women
per day in Brazil.50
43 Prosecutor v. Kunarac et al. (Judgment) ICTY-96-23 & 23/1 (11 February
2001), para. 428; see Schabas (n 7) 148.
44 Douglas Guilfoyle, International Criminal Law (Oxford University Press 2016)
266; Cassese et al. (n 41) 93.
45 Schabas (n 7) 148; Kordic (n 35) para. 179.
46 Guilfoyle (n 44) 246.
47 Mariño (n 4) 114–115.
48 Rosa Fregoso and Cynthia Bejarano, ‘Introduction: A Cartography of Femicide in
the Americas’ in Rosa-Linda Fregoso and Cynthia Bejarano (eds), Terrorizing Women,
Feminicide in the Americas (Duke University Press 2010) 5; Franz Christian Ebert and
Romina Sijniensky, ‘Preventing Violations of the Right to Life in the European and the
Inter-American Human Rights Systems: From the Osman Test to a Coherent Doctrine
on Risk Prevention’ (2015) 15(2) Human Rights Law Review 343–368 at 363.
49 World Conference on Women, Beijing Declaration and Platform for Action,
Fourth World Conference on Women, UN Doc A/CONF.177/20 and A/CONF.177/20/
Add.1 (15 September 1995) [hereinafter Beijing Platform for Action], para. 118;
‘Murder and Machismo, Fighting Femicide in Argentina’ The Economist (5 November
2016), www .economist .com/ the -americas/ 2016/ 11/ 05/ murder -and -machismo.
50 Reuters, ‘Brazil: Four Women killed Every Day in 2019, Human Rights Body
Says’ The Guardian (4 February 2019), www .theguardian .com/ world/ 2019/ feb/ 04/
brazil -women -killed -2019 -rate -alarming -iachr.
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Femicide and crimes against humanity
Systematic
The term ‘systematic’ would not adequately describe femicide, as the term
implies a premeditated plan or policy; random and accidental acts are exclud-
ed.51 Only repeated acts of violence would qualify as ‘systematic’ and satisfy
this contextual element.52 Being committed by (ex-)partners, family members,
and others, femicide is usually carried out absent a state policy.53 Of course,
acts of femicide may be systematic when executed within the context of
a military strategy. Endorsed by the authorities’ failure to deal with crimes
against the female social group, crimes against women could be systematic by
omission. However, it may be challenging to legally qualify acts committed
by non-state actors as planned under the ‘systematic’ element, especially as
femicide is still treated as an isolated crime.54 The question remains whether
the state policy requirement, which is easier to satisfy than the ‘systematic’
element, can be used to conceptualize femicide.55
Policy Requirement
As the violence in femicide, such as in many cases of domestic violence, is sys-
temic and resembles a policy, a policy requirement to conceptualize femicide
might be a foregone conclusion. However, I consider such a requirement to be
largely inadequate because of how it could be misused to exclude unorganized
VAWG. The main argument for inclusion of a policy requirement is its link
to the State, which justifies the prosecution of crimes against humanity at the
international plane.56 According to Bassiouni, the policy demands that the
State play an active role in its creation and issuance. As a result, he excludes
widespread violence which ‘[is the] result of spontaneous or uncontrolled
group conflict,’ as is seemingly the case in femicide.57 Scholars are reluctant to
consider non-state actors as planners of state policies, especially if they are not
‘state-like,’ although the ICC has affirmed that policies can spring from private
51 Kunarac Appeal (n 8) para. 94. See Charles Chernor Jalloh, ‘What Makes
a Crime against Humanity a Crime against Humanity’ (2013) 28(2) American
University International Law Review 381–441 at 407.
52 Kunarac Appeal (n 8) para. 94.
53 See Meyersfeld (n 36) 111.
54 See e.g., Christina Pausackl, ‘Frauenmorde in Österreich, Ich schlachte dich ab
wie ein Schwein’ ProfilAt (14 January 2019), www .profil .at/ oesterreich/ frauenmorde
-oesterreich -10590171.
55 See Katanga (n 11) para. 1108.
56 Cherif Bassiouni, Introduction to International Criminal Law, 2nd revised
edition (Brill Nijhoff 2013) 72.
57 Ibid.
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60 Conceptualizing femicide as a human rights violation
entities.58 While the ICC’s EoC affirm in Footnote 6 that state inaction, e.g.,
in the face of mass rapes, could satisfy the required plan or policy element,
ICC case law on the issue is non-existent. The violence in femicide should be
candidly described as ‘widespread’ rather than being twisted to fit the policy
requirement.
ICL has revealed the inadequacy of the policy element to some extent.
A policy was not required by the International Military Tribunal in Nuremberg
(IMT)’s Charter or Control Council Law and was only initially relied on by
the ICTY and the International Criminal Tribunal for Rwanda (ICTR).59 The
ICTY called for ‘some form of policy’ in Tadić, but subsequent case law
abandoned this.60 Notably, in Prosecutor v. Kunarac, a case which involved
the enslavement and rape of women in a prison camp, the ICTY concluded that
customary international law (CIL) did not require a policy for the commission
of crimes against humanity.61 If the ICTY had required a policy in Kunarac,
the rapes and sexual violence in prison camps, in the absence of explicit orders
to rape, might not have reached the prerequisite threshold for a state policy.
However, in Article 7 (2) Rome Statute, the policy element providing that the
attack must be committed ‘in furtherance of a State or organizational policy,’
re-emerged.62 The ICC considered the policy requirement to mean ‘that a State
or organisation intends to carry out an attack against a civilian population,
whether through action or deliberate failure to take action.’63 The policy omits
to list a series of repeated acts (like the ‘systematic’ element) so as to not
undermine the disjunctive nature of the widespread or systematic element.64
Non-state actors
International criminal tribunals recognize that non-state actors can plot and
carry out policies under the crimes against humanity provision. Already
in Tadić, with respect to its then required policy element, the ICTY noted
58 Cherif Bassiouni, The Legislative History of the International Criminal Court:
Introduction, Analysis, and Integrated Text (Brill Nijhoff 2005) 151–152; see also
Schabas (n 7) 152 and 158.
59 See Art. 6(c) IMT Charter. See Prosecutor v. Semanza (Judgment) ICTR-97-20-T
(15 May 2003), citing Kunarac Appeal (n 8) para. 98. See also Prosecutor v. Gacumbitsi
(Judgment) ICTR-2001-64-T (17 June 2004).
60 Prosecutor v. Tadić, Case No. IT-94-1-T, Trial Judgment, 7 May 1997, para.
653.
61 Kunarac Appeal (n 8) para. 98.
62 Art. 7(2) Rome Statute. See on the drafters’ discussion to include a contex-
tual element, Darryl Robinson, ‘Defining “Crimes against Humanity” at the Rome
Conference’ (1999) 93(1) The American Journal of International Law 43–57 at 47.
63 Katanga (n 11) para. 1108.
64 Ibid., para. 1112.
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61
Femicide and crimes against humanity
that the ‘governmental, organizational, or group policy’ could stem from
‘non-government forces with de facto control over, or free movement within,
a defined territory.’65 As set out in the ICC’s EoC, in addition to state actors,
‘organizations’ can devise and carry out a policy.66 The ICC clarified that an
organization refers to ‘an organized body of people with a particular purpose,’
not necessarily comparable to that of a State.67 The ICC focused on the group’s
capacity to carry out an attack and clarified that an organization with ‘suffi-
cient means to promote or encourage the attack’ qualifies as a policy-maker for
crimes against humanity.68 The Court pointed out that a contemporary interpre-
tation of the policy requirement does not require the group to possess State-like
qualities.69 In principle, therefore, some manifestations of femicide, such as
the abduction and enslavement of women and girls by terrorist organizations
like Boko Haram and the Islamic State in Iraq and Al-Sham (ISIS), would be
covered by the policy requirement.
While the ICC recognizes that both state and non-state actors can devise and
carry out a policy pursuant to the attack, this inclusion of non-state actors as
creators of policies is far from established. Should the Court follow Bassiouni’s
suggestion and exclude policies of terrorist or mafia organizations, even when
they are state-like (e.g., ISIS and Boko Haram), many types of large-scale vio-
lence against women would be excluded from the protection of crimes against
humanity.70 While conceding that the notion ‘State’ must be construed broadly
to cover ‘state-like actors,’ Schabas still argues that, even when non-state
actors carry out policies, those could be dealt with at the domestic level and
would not necessitate international intervention.71 The policy element would
help to draw the line between crimes which belong to national and those which
pertain to international jurisdiction.72 However, this approach disregards the
fact that the type of violence women experience in femicide is rarely dealt with
at the domestic level and that States are often reluctant to act when faced with
situations of mass violence, as revealed in the (non-)response to the enslave-
ment of women by ISIS and the inadequate investigations and search efforts
in Ciudad Juarez.
65 Prosecutor v. Tadić, paras 654–655.
66 Art. 7(3) ICC, EoC.
67 Katanga (n 11) para. 1119 [unofficial translation by the author].
68 Prosecutor v. Bemba (Judgment) ICC-01/05-01/08 (21 March 2016), para. 158,
citing Katanga (n 11) para. 1119.
69 Ibid.
70 Bassiouni (n 58) 151–152; see also Schabas (n 7) 152 and 158.
71 Schabas (n 7) 972.
72 William Schabas, ‘State Policy as an Element of International Crimes’ (2008)
93(3) Journal of Criminal Law and Criminology 953–982 at 954, 974 and 982.
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62 Conceptualizing femicide as a human rights violation
Most violence in connection with femicide is not committed pursuant
to organizational policies. These types of violence include endemic acts
of domestic violence, honor killings, and dowry-related killings in certain
regions, committed by different individuals in various family contexts.73 Under
the law, these acts may be erroneously regarded as random, unrelated crimes
outside the scope of the policy requirement.74 The plan and policy requirement
is problematic and impractical, at least when rapes and other acts perpetrated
against women are not actively ordered through a state or organizational policy
or plan.75
Inaction
A notion of policy through inaction would ideally capture VAWG com-
mitted by private individuals where States remain passive. However, it is
an untried and obscure element satisfying legal argumentation rather than
practical reality. Footnote 6 EoC suggests that a policy may ‘in exceptional
circumstances, be implemented by a deliberate failure to take action, which is
consciously aimed at encouraging such an attack.’ The second sentence blurs
the contours of this concept by adding that the passive state policy ‘cannot be
inferred solely from the absence of governmental or organizational action.’76
The scope of this requirement remains uncertain since the ICC has not yet
interpreted this footnote. Footnote 6 appears to require some sort of bad faith
in ‘deliberate’ inaction. Conversely, should States remain agnostic about
honor killings and domestic violence, their inaction may not satisfy the policy
requirement. Considering that the ‘policy by inaction’ no longer necessitates
a state contribution, practically speaking, the policy by inaction element could
be equated to the ‘widespread’ one.
Finally, the state policy requirement prevents international law from
applying to large-scale violence against women which occurs as seemingly
unorganized and unplanned acts. If used, the policy element potentially
excludes widespread rapes committed by non-state actors. However, violence
present in femicide happens every day and, if unchecked, it quickly develops
into large-scale violence against women which qualifies as ‘widespread.’ The
policy requirement is impractical: Even if interpreted broadly (recognizing
both the State and any organization as designers of policies), the low threshold
required to satisfy the policy element (contribution to an attack) makes estab-
lishing the policy element a tedious and unnecessary legal exercise. Should the
73 See Meyersfeld (n 36) 111.
74 See Hagay-Frey (n 4) 151.
75 Ibid.
76 Art. 5 ICC EoC, fn. 6.
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63
Femicide and crimes against humanity
policy requirement be interpreted to cover state inaction, it would be deprived
of legal substance due to its almost reduction to describing the extensive nature
of violence, an aspect already included in the widespread element.
Selected Acts
‘Traditional’ acts like ‘murder,’ ‘extermination,’ ‘enslavement,’ ‘torture,’ and
others are listed as underlying acts of crimes against humanity in the Rome
Statute. At the same time, Article 7(a)–(g) Rome Statute establishes a set of
crimes directly relevant to femicide: ‘rape, sexual slavery, enforced prosti-
tution, forced pregnancy, enforced sterilization, or any other form of sexual
violence of comparable gravity’ among others; these acts would also breach
human rights protected from femicide.77 The inclusion of sexual crimes as
underlying acts in the Rome Statute directs attention towards sexual violence
as independent crimes which, until recently, were either interpreted in more
general provisions (e.g., ‘enslavement’) or masked by vague wording (e.g.,
‘serious mental and bodily harm’ in genocide and ‘outrages upon personal
dignity’ in war crimes).78
The acts counting as crimes against humanity, while progressive, have yet
to include forced marriage, female genital mutilation, and other gender-based
acts predominant in femicide.79 Article 7(a)–(g) is worded in neutral terms.
However, many sexual crimes disproportionately affect women, and some
are exclusively perpetrated on women’s bodies, such as those targeting their
reproductive function, like forced pregnancy.80 The next sections center on
rape—a component of many sexual crimes—sexual slavery, forced marriage
and persecution based on gender.81 This selection should not be understood to
exclude other acts from the application of femicide.
Rape
The term rape has been considered a crime against humanity for some time
now. Control Council Law No. 10, empowering Allied forces to try war
77 Art. 7 (1)(g) Rome Statute; see Cassese et al. (n 41) 92.
78 Hagay-Frey (n 4) 83 and 115.
79 Scholars have criticized the Rome Statute for unduly focusing on sexual crimes.
See Valerie Oosterveld, ‘Gender-based Crimes Against Humanity’ in Leila Nadya
Sadat (ed), Forging a Convention for Crimes Against Humanity (Cambridge University
Press 2011) 79. See also Hagay-Frey (n 4) 120.
80 See Schabas (n 7) 170 and 186.
81 See Christine Chinkin, ‘Gender and Armed Conflict’ in Andrew Clapham and
Paola Gaeta (eds), The Oxford Handbook of International Law in Armed Conflict
(Oxford University Press 2014) 687.
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64 Conceptualizing femicide as a human rights violation
criminals in their occupation zones, has listed rape under its crimes against
humanity provision.82 The ICTR and the ICTY statutes also recognize rape as
a crime against humanity alongside other violent crimes, such as murder and
torture.83 Yet, the scope of rape has remained undefined and is often subject
to debate. Among the ICL concepts of rape, a definition must be found which
takes account of the many ways in which women and girls are raped in femi-
cide, some of which include mutilating body parts, and occur in a large-scale
context of violence.
Case law clarifying the scope of rape under ICL has developed slowly.
Initially, the ICTY solely considered rape and sexual violence with respect to
men. In Tadić, Witness F reported that she was raped by Tadić, a guard in the
Omarska prison camp. Witness F, afraid of repercussions, declined to testify;
as a result, the prosecution withdrew the counts for rape as a war crime and
a crime against humanity, and amended the initial indictment.84 While many
imprisoned in Omarska, both male and female, were raped and tortured, the
Tadić Trial Chamber discussed sexual assault against men, but did not account
for the female rape victims.85
The ICTR’s Akayesu case, recognizing rape as genocide, is the cornerstone
for the definition of rape in ICL. Akayesu established that ‘rape is a form
of aggression and that the central elements of the crime of rape cannot be
captured in a mechanical description of objects and body parts.’86 Rejecting
formalistic criteria in describing the scope of rape, the Trial Chamber defined
rape as ‘physical invasion of a sexual nature, committed against a person under
circumstances which are coercive.’87 Furthermore, it clarified that ‘coercive
circumstances need not be evidenced by a show of physical force’ but ‘may
be inherent in certain circumstances’ (i.e., armed conflict or the presence of
threatening armed forces).88 Accordingly, Akayesu considered the coercive
context in which consent is expressed as relevant to the definition of rape.89
82 Art. 2(1)(a) Control Council Law No 10, Punishment of Persons Guilty of War
Crimes, Crimes against Peace and against Humanity, 20 December 1945, Official
Gazette of the Control Council for Germany, No. 3 Berlin, 31 January 1945 [hereinaf-
ter Control Council Law], 50–55.
83 Art. 5(g) ICTY Statute; Art. 3(g) ICTR Statute.
84 Prosecutor v. Tadić, paras 4.1-4.4 and 27.
85 ‘Witness H was ordered to lick his naked bottom and G to suck his penis and then
to bite his testicles’. Prosecutor v. Tadić, para. 206.
86 International Criminal Tribunal for Rwanda (ICTR), Prosecutor v. Akayesu
(Judgment) ICTR-96-4-T (2 September 1998), para. 597.
87 Ibid., paras 598 and 688.
88 Ibid., para. 688.
89 Ibid., paras 692–697.
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65
Femicide and crimes against humanity
Following Akayesu, the ICTY replicated the definition related to rape as
torture (as a war crime) in Prosecutor v. Delalic90 and Čelebići.91 It argued
that, in the context of armed conflict, rape inevitably entails ‘punishment,
coercion, discrimination or intimidation,’ and can thus amount to torture.92
Hence, the ICTY accepted that, in line with Akayesu, coercion is central to the
inquiry whether a rape could be said to have occurred under ICL. However, in
Prosecutor v. Furundžija, which recognized that rape could constitute a crime
against humanity, the ICTY deviated from the Akayaesu standard in relation to
rape as a war crime without explanation.93 Furundžija provides a mechanical
description of different elements of rape in strict detail. The Tribunal defines
rape as ‘sexual penetration, however slight,’ listing the ‘vagina or anus’ and
‘the mouth’ as body parts which can be raped ‘by the penis of the perpetrator
or any other object.’ The definition further adds that rape is committed ‘by
coercion or force or threat of force against the victim or a third person.’94 This
rape definition potentially excludes rape committed by other means, such
as by cutting the victim’s navel, as it may occur in femicide. However, the
Furundžija definition must be understood in its context, which differs from the
circumstances of femicide. The facts of the case involved forced oral sexual
intercourse. The ICTY described body parts, likely to decide if these facts were
covered by the definition of rape.95 Concerns over the principle of legality also
led the Tribunal to enter into detail on which parts are concerned in rape.96
Such concerns are hardly valid, however, as perpetrators can be expected to
know that violence is prohibited, be it sexual or not, even in the absence of
a description of body parts.
Another approach to rape, adopted in Kunarac, referred to consent in
contexts of armed conflict. In Kunarac, which recognized rape as a crime
against humanity, the ICTY had to decide whether or not consent might have
legitimized the sexual intercourse between a detained woman and a military
commander. The Tribunal explained that a woman who had initiated sexual
intercourse with Kunarac, a military commander, while she was held in captiv-
ity shortly after she had been raped by three soldiers and was told by one of her
90 Prosecutor v. Delalic et al. (Judgment) ICTY-96-21-T (16 November 1998),
paras 478–479.
91 Prosecutor v. Mucic (Čelebići) (Trial Judgment) ICTY-96-21 (16 November
1998), paras 478–479.
92 Ibid., para. 495.
93 Prosecutor v. Furundžija, IT-95-17/1 (10 December 1998), para. 172.
94 Ibid., para. 185.
95 Anne-Marie De Brouwer, Supranational Criminal Prosecution of Sexual
Violence: The ICC and the Practice of the ICTY and the ICTR (Intersentia 2005) 112
and 114.
96 See Furundžija (n 93) para. 177.
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66 Conceptualizing femicide as a human rights violation
rapists to ‘keep their commander hard all night,’ acted under circumstances of
coercion. Although she appeared to have consented and even initiated sexual
intercourse, this consent was the consequence of direct threats to her life,
which invalidated it.97 The Kunarac Trial Chamber maintained Furundžija’s
overly detailed definition of rape (including an element of penetration and
coercion) and supplemented it by clarifying that ‘consent [must be] given vol-
untarily, as a result of the victim’s free will, assessed in the context of the sur-
rounding circumstances.’98 The Kunarac Appeals further noted that women’s
detention in the Omarska prison camp ‘amount[s] to circumstances that were
so coercive as to negate any possibility of consent,’99 thereby signaling that
coercive circumstances, such as crimes against humanity, negate consent.100
The ICTY thus considered that physical force is not required for rape under
international law.101
The Furundžija definition for rape is used in the EoC, albeit unfortunately
tailored to require an ‘inva[sion of] the body of a person by conduct resulting
in penetration, however slight, of any part of the body of the victim or of the
perpetrator with a sexual organ, or of the anal or genital opening of the victim
with any object or any other part of the body.’102 The EoC sets out that the
term invasion is gender-neutral, and includes different interferences with the
victim’s body.103 Consent is considered in passing, discussed in a paragraph
concerning force and coercion, specifically relating to cases where rape is
committed against ‘a person incapable of giving genuine consent.’104 However,
Rule 70 of the ICC’s Rules of Procedure relating to sexual violence clarifies
that, in a coercive environment, consent cannot be derived from the words nor
the conduct of the victim.105 The ICC’s definition is a hybrid of Furundžija’s
description of sexual intercourse and Kunarac’s consent as expressed in
97 Kunarac (n 43) paras 96, 645 and 646.
98 Ibid., para. 460.
99 Kunarac Appeal (n 8) para. 132.
100 See also Catharine MacKinnon, Are Women Human? And Other International
Dialogues (Harvard University Press 2007) 951.
101 Kunarac Appeal (n 8) paras 129–130. ‘A narrow focus on force or threat of force
could permit perpetrators to evade liability for sexual activity to which the other party
had not consented by taking advantage of coercive circumstances without relying on
physical force.’ Akayesu (n 86) paras 598 and 688. See also MacKinnon (n 100) 946.
See Rule 96 ICTY Rules of Procedure and Evidence, which does not allow consent as
a defense in coercive circumstances.
102 Arts 8, 28 and 36 (rape in relation to a crime against humanity and a war crime)
ICC EoC.
103 Ibid., Art. 8, fn. 15.
104 Ibid., Art. 8, fn. 16.
105 Katanga (n 11) para. 966.
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67
Femicide and crimes against humanity
coercive circumstances.106 The ICC has tested its rape definition in Katanga,
although it did not enter a conviction for rape. Based on the EoC and ad hoc
case law, the ICC argued that rape (as a war crime and as a crime against
humanity) entails penetration and coercion.107 The ICC has handed down
a final conviction on rape as a crime against humanity in Ntaganda in March
2021.108 The approach adopted in Akayesu (rape as physical invasion under
coercive circumstances) and, in attenuated form, in the Kunarac Appeal (coer-
cive circumstances imply non-consent) would ideally capture rape in femicide.
The question what such coercive circumstances consist in, however, must be
considered in the light of feminist legal approaches to rape.
A key issue raised by feminist legal scholars is whether rape is mainly about
denying the victim agency and sexual freedom or whether it revolves around
exercising power over an individual in a coercive context. De Brouwer and
MacKinnon rightly assert that consent becomes irrelevant in specific contexts
as consent is not possible for war crimes, crimes against humanity, or geno-
cide,109 nor for sexual intercourse which is part of an international crime.110
MacKinnon pertinently notes that ‘[n]o other crime against humanity has ever,
once the other standards are met, been required to be proven nonconsensual.’111
She worries that a consent requirement translates into the presumption that the
rape victim wanted sexual intercourse. Criticizing the Furundžija approach,
MacKinnon points out that national rape definitions were crafted for circum-
stances of individual rape.112 She argues that rape replicates unequal power
relations, which govern the victim/perpetrator relationship, and which are
reinforced in armed conflict. She notes that rape as an international crime is
not a separate crime but forms part of genocide, crimes against humanity, and
war crimes—circumstances which are inherently coercive.113
The widespread nature of femicide supports these arguments. For example,
women held in captivity may agree to sexual intercourse, hoping to remain
alive by doing so. In contexts of widespread domestic violence, explicit
consent in word or deed would also be negated on the same basis as it is in war
contexts since women may fear being harmed and/or know that the police are
unlikely to respond to their complaints. Liberal feminist scholars, including
106 See also MacKinnon (n 100) 957–958.
107 Arts 8(2)(e)(vi) (war crime) and 7(g) Rome Statute, see Katanga (n 11) paras
961–962 and 965.
108 Prosecutor v. Ntaganda (Appeals Judgment) ICC-01/04-02/06 (30 March 2021).
109 De Brouwer (n 95) 455; MacKinnon (n 100) 952.
110 De Brouwer, ibid.
111 MacKinnon (n 100) 952.
112 Ibid., 946.
113 Ibid., 240–246.
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68 Conceptualizing femicide as a human rights violation
Halley and West, critique MacKinnon and de Brouwer’s approach, insisting
that the consent element is the distinguishing factor between consensual sexual
relations and rape.114 Halley’s objection is that every sexual intercourse in
a war would amount to rape, which is accurate to the extent that the focus on
coercion might unduly sanction exceptional cases where sexual intercourse
occurs in a place of love and respect between a soldier and a woman belonging
to the targeted civilian population.115 However, Halley appears overly con-
cerned with the effect on the excessive costs for the perpetrator, i.e., the burden
of being undeservedly accused. This approach protects the minority of men
who are wrongly accused.116 Ultimately, Halley’s focus on consent stems from
her understanding that rape denies women sexual agency, an agency which
is restricted in any event in the context of war, crimes against humanity, and
genocide—and femicide.117 Instead, these challenges in evaluating whether
consent to sexual intercourse is valid in widespread violent contexts, such as
armed conflict, can be proffered as a reason to abandon the consent element for
acts of femicide altogether. As long as a given contextual element is present
even seemingly consensual acts would be rape in femicide.
Sexual slavery
As people cannot voluntarily engage in sexual slavery, the consent ques-
tion is particularly illuminating in this context. Sexual slavery differs from
enslavement in important ways. The 1926 Slavery Convention defines the
term slavery as the condition of a person over whom ‘any or all of the powers
attaching to the right of ownership are exercised.’118 According to the ICC’s
EoC, in order to make slavery sexual, a person has to be forced ‘to engage in
one or more acts of a sexual nature.’119 As a crime which has been overlooked,
sexual slavery now covers not only the power which slave owners hold over
114 Robin West, ‘Sex, Law and Consent’ (2008) 71 Georgetown Law Faculty
Working Papers 1–44.
115 Janet Halley, ‘From the International to the Local in Feminist Legal Responses
to Rape, Prostitution/Sex Work and Sex Trafficking: Four Studies in Contemporary
Governance Feminism’ (2006) 29(2) Harvard Journal of Law & Gender 335–423 at
383.
116 Maria Grahn-Farley, ‘The Politics of Inevitability: An Examination of Janet
Halley’s Critique of the Criminalisation of Rape as Torture’ in Sari Kouvo and Zoe
Pearson (eds), Feminist Perspective on Contemporary International Law, Between
Resistance and Compliance? (Hart Publishing 2011) 114–115.
117 See Halley (n 115) 341.
118 Art. 1(1) Slavery Convention 1926, League of Nations. Convention to Suppress
the Slave Trade and Slavery (Slavery Convention) (adopted 25 September 1926,
entered into force 9 March 1927) 60 LNTS 253.
119 See ibid. and ICC EoC, Sexual Slavery.
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69
Femicide and crimes against humanity
their slaves’ reproductive functions—i.e., to decide whether their ‘property’
should bear children—but also possibly acts committed in rape camps and
military brothels.120 Especially relevant to femicide, the widespread context of
sexual slavery can be exemplified with the so-called ‘comfort women’ in Japan
who were kept in barbed-wired camps, where they were made to receive up
to 40 men a day; they were executed if they resisted, tried to escape, or con-
tracted venereal diseases.121 To date, their plight still has not been recognized
as a crime against humanity and remains under addressed.122
Modern examples of sexual slavery can be found in the context of the war
in the former Yugoslavia. In Foča, Bosnia-Herzegovina, many women and
girls were detained in schools and sports halls. From there, they were taken to
private apartments, where they were forced to clean and cook and to entertain
their captors sexually before they were traded and sold to others.123 In response
to these crimes, the ICTY opened legal pathways towards recognizing sexual
slavery as crimes against humanity. The Tribunal’s pioneering Kunarac case
expanded its statutory language, which merely listed enslavement, to cover
sexual slavery, defining it as an ‘exercise of any or all of the powers attaching
to the right of ownership over a person,’ including ‘the control of sexuality.’124
Noteworthy is that the ICTY mentioned that a prolonged period of detention
or lack of consent is not required for the crime of ‘enslavement,’125 reasoning
which can be transposed to ‘sexual’ slavery in femicide.
The Special Court for Sierra Leone (SCSL), a court with jurisdiction over the
Sierra Leone (1991–2002) conflict, characterized by sexual slavery, included
‘sexual slavery’ as a crime against humanity in its statute and addressed it in
120 Art. 5(c) ICTY Statute; Michelle Jarvis and Elena Martin Salgado, ‘Future
Challenges to Prosecuting Sexual Violence under International Law: Insights from
ICTY Practice’ in Anne-Marie De Brouwer et al. (eds), Sexual Violence as an
International Crime: Interdisciplinary Approaches (Intersentia 2012) 106.
121 Testimony of former ‘comfort woman’ Chong Ok Sun. Omar Swartz,
Transformative Communication Studies, Culture, Hierarchy and the Human Condition
(Troubadour Publishing 2008) 232–233.
122 In January 2021, a South Korean court ordered the Japanese government to
compensate Korean women forced into sexual slavery during World War II. Choe
Sang-Hun, ‘South Korean Court Orders Japan to Pay Compensation for Wartime
Sexual Slavery’ New York Times (7 January 2021), www .nytimes .com/ 2021/ 01/
07/ world/ asia/ south -korea -comfort -women -japan .html. See also UN Commission on
Human Rights, Report on the Mission to the Democratic People’s Republic of Korea,
the Republic of Korea and Japan on the Issue of Military Sexual Slavery in Wartime,
52nd Session, UN Doc E/CN.4/1996/53/Add.1 (1996).
123 Kunarac (n 43) paras 574, 577 and 767.
124 Ibid., para. 119.
125 Ibid., paras 119–121.
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70 Conceptualizing femicide as a human rights violation
its formative case law.126 The Special Court outlined the elements of ‘sexual
slavery’ in Brima but did not find a conviction for this crime.127 The first
explicit conviction for sexual slavery was entered by the SCSL in Sesay et
al.128 The Court essentially echoed the elements of the ICC’s EoC on sexual
slavery and clarified that sexual slavery as a crime against humanity can bring
to light its use as a ‘tactic of war to humiliate, dominate, and instill fear in
victims, their families, and communities during armed conflict.’129
Especially relevant for femicide are the SCSL Trial Chamber’s consid-
erations on the deprivation of liberty and the question of consent. The Trial
Chamber recognized that ‘similar deprivation of liberty’ covers victims who
‘would have nowhere else to go and feared for their lives.’130 This notion of
deprivation of liberty could apply to situations of psychological pressure, such
as those found in domestic violence cases where a woman is economically
dependent on her husband and, afraid to lose custody of her children, continues
to live with her abuser. Moreover, the Trial Chamber considered that sexual
violence requires neither any specific duration of enslavement nor an element
of consent, consent only being relevant to determine whether the perpetrator
exercised ownership.131 The context in which the sexual slavery occurred (the
conflict-ridden parts of Sierra Leone) negated free consent, according to the
Trial Chamber.132 The crime of sexual slavery seems to support the claim
that, for conceptualizing femicide, the crime itself––such as rape and sexual
violence––should be viewed within its context, in which consent may no
longer be possible.
Although the ICC’s crime against humanity provision explicitly includes
sexual slavery as a crime against humanity and allows for its direct adjudi-
cation as an international crime, the ICC’s Katanga case on sexual slavery
presents a significant setback to the recognition of sexual slavery as an inter-
national crime. 133 It displays the challenges to, and limitations of adjudication
for sexual crimes even where statutory language provides clear instructions
to hold perpetrators accountable. In Katanga, the ICC found that the Patriotic
Resistance Front (PRF) militia committed sexual slavery and rape as a crime
126 Valerie Oosterveld, ‘Sexual Slavery and the International Criminal Court:
Advancing International Law’ (2004) 25 Michigan Journal of International Law
605–651 at 626.
127 Prosecutor v. Brima et al. (Judgment) SCSL-04-16-T (20 June 2007), para. 709.
128 Prosecutor v. Sesay, Kallon and Gbao (Judgment) SCSL-04-15-T (2 March
2009), paras 678, 682 and 685.
129 Ibid., paras 156 and 158–159.
130 Ibid., para. 161.
131 Ibid., para. 163.
132 Ibid., paras 1466 and 1470–1771.
133 Katanga (n 11) paras 973–978.
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71
Femicide and crimes against humanity
against humanity during and after their attack on the Bogoro village in the
Democratic Republic of the Congo (DRC).134 For example, soldiers visited
Witness 249 at night only to engage in sexual assault without speaking a word;
Witness 132 was ‘inherited’ by a combatant.135 The ICC was convinced that
the combatants were aware of the women’s situation as captives who were
entirely deprived of their liberty of movement and whom they utilized for
sexual purposes, and that they intentionally exercised powers attaching to the
right of ownership over the women while the women were held captive at the
militia camp.136
The Trial Chamber concluded that sexual slavery was part of the attack
directed against the Hema civilian population.137 However, the ICC did not
hold Germaine Katanga, the militia leader, responsible for crimes of sexual
slavery as the Trial Chamber considered that murder, destruction of property,
and pillaging, were included in the common purpose to erase the Hema ethnic-
ity, but sexual slavery was not.138 The way in which the attack was conducted,
i.e., the militia hunting down and killing Hema civilians and destroying their
means of living, confirmed this common purpose required under Article 25(d)
Rome Statute.139 The Trial Chamber reasoned that sexual slavery (1) was not
sufficiently widespread;140 (2) was not committed prior to the attack, unlike
the murder, pillaging, and destruction of property;141 (3) did not aim to erase
the Hema ethnicity, since some women were raped and enslaved instead of
being killed after they managed to conceal their ethnicity.142 Hence, although
the militia had committed sexual slavery, the Trial Chamber acquitted Katanga
of rape and sexual slavery as crimes against humanity,143 finding him guilty
of war crimes and other crimes against humanity.144 Katanga’s acquittal for
134 Ibid., paras 1008, 1013, and 1019–1023.
135 Ibid., para. 1007.
136 Ibid., paras 1013 and 1018–1019.
137 Ibid., para. 1167.
138 Ibid., paras 1658, 1661 and 1664.
139 Ibid., paras 1654–1657 and 1163–1167.
140 The Chamber held that ‘no evidence is laid before the Chamber to allow it to
find that the acts of rape and enslavement were committed on a wide scale and repeat-
edly’. Ibid., para. 1663. See Kelly Askin, ‘Prosecuting Wartime Rape and other
Gender-Related Crimes under International Law, Extraordinary Advances, Enduring
Obstacles’ in Sari Kouvo and Zoe Pearson (eds), Gender and International Law
(Routledge 2014).
141 Katanga (n 11), paras 1658 and 1661.
142 Ibid., paras 1163–1164 and 1167.
143 Ibid., para. 1664.
144 Ibid., paras 1658, 1676, 1661 and 1679; Art. 25(3)(d) Rome Statue,
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72 Conceptualizing femicide as a human rights violation
sexual slavery is ‘an appalling double standard, and perpetuates the view that
rape is a byproduct of war, instead of an instrument of warfare.’145
Katanga’s problematic acquittal for rape and sexual slavery, despite the
Trial Chamber’s establishment of those acts as crimes against humanity, seems
rooted in the Chambers’ lack of sensitivity to the gender dynamics of armed
conflict. First, whether the women were actually ‘spared’ (i.e., enslaved and
raped instead of killed) because they convinced their perpetrators they were
not of Hema ethnicity, is debatable. For example, the evidence did not disclose
if Witness 132 concealed or revealed her ethnicity.146 The manner in which the
Trial Chamber identified the common purpose is also questionable. As the Trial
Chamber found that some women were raped and enslaved after they managed
to conceal their ethnicity,147 the Trial Chamber should have considered how
women and girls are typically harmed in such attacks. Asking the woman
question, the ICC might have noted that women and girls are usually raped and
enslaved during armed conflict, whereas men and boys are killed. The ICC
could have found that rape was part of the attack and might have underlined the
importance of adjudicating crimes against women.148 The Trial Chamber did
not inquire about Katanga’s presence during the witnesses’ cross-examination
or ask the prosecution to further investigate crimes against women and, if
necessary, amend the criminal charges or rely on additional witnesses, as it
had done in Akayesu.149 Therefore, conclusions on these matters cannot safely
be drawn. Katanga has demonstrated that the recognition of sexual slavery by
itself is not enough; the contextual element must be adequately constructed to
adjudicate crimes against women and girls.
Having sensed, perhaps, that Katanga had gone wrong in terms of recog-
nizing gendered harm, the Office of the Prosecutor released a policy paper
on sexual and gender-based crimes in 2014, emphasizing its commitment to
prosecute these crimes.150 In July 2019, the ICC finally entered a conviction for
145 Kelly Askin, ‘Katanga Judgment Underlines Need for Stronger ICC Focus on
Sexual Violence, Open Society Foundations’ Open Society Initiative (11 March 2014),
www .op ensocietyf oundations .org/ voices/ katanga -judgment -underlines -need -stronger
-icc -focus -sexual -violence.
146 Witness 132 claimed that she saw Katanga three times in the camp. Katanga (n
11) paras 202–206 and 1664.
147 Ibid.
148 Askin (n 145).
149 Askin (n 140) 196; Hagay-Frey (n 4) 97; Alice Edwards, Violence Against
Women under International Human Rights Law (Cambridge University Press 2011)
105.
150 Office of the Prosecutor, ‘Policy Paper on Sexual Crimes and Gender-based
Violence’ (2014), www .icc -cpi .int/ iccdocs/ otp/ OTP -Policy -Paper -on -Sexual -and
-Gender -Based -Crimes - -June -2014 .pdf.
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Femicide and crimes against humanity
sexual slavery as a crime against humanity, confirming the elements of sexual
slavery as a crime against humanity.151
The first case on sexual slavery at the domestic level, the Guatemalan
Supreme Court’s historic Sepur Zarco Judgment of 2016, mirrors many
present-day femicide cases discussed in Chapter 7.152 In response to indigenous
communities’ attempts to secure land titles in the 1980s, the Guatemalan mili-
tary abducted and killed many male villagers while sexually enslaving women
and girls who were forced to clean, wash, and cook at Sepur Zarco military
camp, while soldiers repeatedly sexually assaulted and raped them.153 The
Guatemalan Supreme Court held that Maya women and girls’ sexual enslave-
ment at Sepur Zarco military camp constituted an ‘inhumane act against the
civilian population’ (substantively a crime against humanity) and sentenced
the perpetrators to thirty years imprisonment.154
Sepur Zarco is notable for the judges’ examination of the case through
a gendered lens. The judges focused on why sexual slavery was perpetrated
against women and girls and how the enslavement impacted them, arguing
that the aim was to isolate the women and girls from their male ‘protectors’
by killing their husbands and sons. Once this task was completed, the soldiers
considered the women ‘fair game’ as they were left without male protection:
‘[T]he result was to leave the women alone, frightened, helpless, at the dis-
posal of the soldiers to sexually abuse them, using physical and psychological
force, bending their will, treating them worse than animals.’155 Guatemala’s
Supreme Court found that, through sexual enslavement, the soldiers humili-
ated the women and ‘produce[d] the social breakdowns.’156
Their enslavement and rape also had an adverse effect on the broader com-
munity. The Court considered that women’s bodies have a spiritual meaning
as bearers of life in indigenous culture.157 By raping them, the perpetrators
destroyed life itself and denied them their humanity. As the Court held, ‘[t]he
violence they experienced transcended the minds and bodies of the women and
caused a complete rupture of the social fabric.’158 As such, the crimes against
women and girls had an impact on their economic status, their future lives, and
151 Prosecutor v. Ntaganda (Trial Judgment) ICC-01/04-02/06 (8 July 2019), paras
954, 957–960.
152 Sepur Zarco (Judgment) Guatemalan Supreme Court of Justice
C-01076-2012-00021 (26 February 2016).
153 Ibid., paras 111–112.
154 Art. 378 Guatemala Criminal Code [unofficial translation by the author].
155 Sepur Zarco (n 152) paras 102 and 112.
156 Ibid., paras 81–82.
157 Ibid., paras 82–83.
158 Ibid., para. 487.
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74 Conceptualizing femicide as a human rights violation
their cultural traditions. The Court also considered that they were domestic
slaves since the women had to cook and perform domestic tasks as part of the
enslavement, an aspect which is usually neglected in the case law on sexual
slavery.159 The sexual enslavement of women and girls in the Sepur Zarco
military camp was committed during Guatemala’s civil war. The impunity and
failure to address these acts have contributed to the widespread existence of
femicide in modern-day Guatemala, as is substantiated in Chapter 7.160
Forced marriage
Forced marriage is not categorized as an independent crime under the Rome
Statute. As unambiguous language is key in recognizing harm, I argue for
an unequivocal recognition of forced marriage as independent from sexual
slavery. However, as can be seen in the example of forced marriage, conceptu-
alizing acts of femicide in ICL is limited by the principle of legality.161 Under
Article 7(1)(g) Rome Statute, forced marriage may amount to a crime against
humanity as ‘any other form of sexual violence,’ a residual clause also cover-
ing forced nudity.162 To satisfy the principle of legality, forced marriage must
be of ‘comparable gravity,’ and thereby similar in seriousness to other crimes
listed in Article 7(1)(g) Rome Statute.163
The SCSL examined the crime of forced marriage, on the charge of ‘other
inhumane acts’ in addition to charges of sexual slavery. Regrettably, the
Brima Trial Chamber stated that forced marriage was covered by sexual
slavery, dismissing the forced marriage charges as redundant.164 However,
Judge Doherty’s dissent argued that forced marriage was different from
sexual slavery, and should constitute a crime against humanity.165 Although
consent was often given by the wives’ parents or next of kin in traditional
Sierra Leonean marriages, Doherty compellingly argued that forced marriage
was different, since neither the woman nor her next of kin had consented
to her marriage.166 Many of the abducted women became so-called ‘bush
159 Ibid., para. 488.
160 Hilda Morales Trujillo, ‘Femicide and Sexual Violence in Guatemala’ in
Rosa-Linda Fregoso and Cynthia Bejarano (eds), Terrorizing Women, Feminicide in
the Americas (Duke University Press 2010) 133–135.
161 Victoria May Kerr, ‘Should Forced Marriages be Categorised as “Sexual
Slavery” or “Other Inhumane Acts” in International Criminal Law?’ (2020) 35(1)
Utrecht Journal of International and European Law 1–19 at 2.
162 Akayesu (n 86) para. 697; Prosecutor v. Kvocka (Appeals Judgment) IT-98-30/1
(2 November 2001), para. 180.
163 Oosterveld (n 79) 94.
164 Brima (n 127) paras 713–714.
165 Ibid., Doherty Dissent, para. 71.
166 Ibid., para. 36.
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Femicide and crimes against humanity
wives’ without a proper marriage ceremony in which a woman (or her family
members) freely consented.167 Assigned to a soldier who had the exclusive
right to rape her, a forcibly married woman would have to work for him and
satisfy his sexual desires in exchange for ‘protection’ against assaults by other
rapists.168 When women ceased to perform or when their husbands got tired of
them, they once again became the prey of the other soldiers. Doherty distin-
guished forced marriage from sexual slavery, noting that ‘unmarried’ women
were held as sex slaves—fair game for every soldier and gang rape—while
forced marriage—‘the imposition, by threat or physical force arising from the
perpetrator’s words or other conduct, of a forced conjugal association by the
perpetrator over the victim’169—did not require abduction, enslavement, or
rape.170 Drawing on Doherty’s analysis, the Brima Appeals Chamber reversed
the Decision. It rightly considered that forced marriage was a separate offence,
meriting adjudication under ‘other inhumane acts.’ The Appeals Chamber
defined forced marriage as ‘a situation in which the perpetrator through his
words or conduct, or those of someone for whose actions he is responsible,
compels a person] by force, threat of force, or coercion to serve as conjugal
partner resulting in severe suffering, or physical, mental or psychological
injury to the victim.’171
In the Decision on the confirmation of charges against Dominic Ongwen,
the ICC confirmed the SCSL’s definition of forced marriage.172 The Court
considered two elements in distinguishing forced marriage from sexual
slavery. It argued that, ‘unlike sexual slavery, forced marriage implied a rela-
tionship of exclusivity between the “husband” and “wife,” which could lead
to disciplinary consequences.’173 The second element is that forced marriage
violates the victim’s right to ‘consensually marry and establish a family.’174
The Extraordinary Chamber in the Courts of Cambodia (ECCC) entered a con-
viction for forced marriage as a crime against humanity in 2018 for a Khmer
Rouge policy under which thousands of men and women were forcibly
married.175 Forced marriage is not limited to sexual acts and is usually more
167 Ibid., para. 50.
168 Ibid., para. 49.
169 Ibid., para. 53.
170 Ibid., para. 70.
171 Prosecutor v. Brima et al. (Appeals Judgment) SCSL-2004-16-A (22 February
2008) (Brima Appeal), para. 196.
172 Prosecutor v. Ongwen (Decision on the Confirmation of the Charges)
ICC-02/04-01/15 (23 March 2016).
173 Ibid., para. 93.
174 Ibid., para. 94.
175 ECCC, 002/19-09-2007/ECCC/TC (16 November 2018).
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76 Conceptualizing femicide as a human rights violation
long-term than sexual slavery.176 Unfortunately, it can only be adjudicated
indirectly as other inhumane acts. Yet, this case-law evidences the existence
of first approaches to forced marriage as a violation, and presents the basis for
conceptualizing forced marriage, such as the coercion of women and girls into
marriage by Boko Haram, as an act of femicide.
Persecution based on gender
At a first glance, persecution based on gender—‘the intentional and severe
deprivation of fundamental rights contrary to international law by reason of
the identity of the group or collectivity’ under the Rome Statute177—appears
similar to femicide. As a sub-method in crimes against humanity, ‘persecution
based on gender’ recognizes acts of femicide in indirect terms, causing gen-
dered violence to become disguised if not invisible. Crimes can only amount to
persecution provided that the acts constitute severe deprivation of fundamental
rights.178 The commission of persecutory acts under the Rome Statute, unlike
the ICTY and ICTR Statutes, must be connected with an underlying act listed
in Article 7(1)(a)–(k) as a crime against humanity, or other crimes within the
ICC’s jurisdiction.179 This rather opaque, untested connection criterion restricts
the use of persecutory methods under the Rome Statute.180
As an underlying act of a crime against humanity, persecution is limited
to individuals. Although Article 7(2)(g) Rome Statute identifies persecution
against ‘any identifiable group or collectivity—seemingly suggesting that,
akin to the crime of genocide, groups must be targeted—the EoC clarifies that,
rather than groups, individuals are targeted ‘by reason of the identity of the
group or collectivity.’181 The purpose of persecution is to alienate individuals
from a society ‘in which they live alongside the perpetrators, or eventually
from humanity itself,’ not to destroy a protected group, as is the case in
genocide.182 Hence, persecution provisions protect minority populations from
discriminatory policies and practices.183 The collective violation of women’s
176 See Kerr (n 161) 9.
177 Art. 7(2)(g) Rome Statute.
178 Caroline Fournet and Clotilde Pégorier, ‘“Only One Step Away from Genocide:”
The Crime of Persecution in International Criminal Law’ (2010) 10(5) International
Criminal Law Review 713–738 at 727.
179 Art. 7(1)(h)(4) Rome Statute.
180 See Chertoff (n 4) 1050.
181 Arts 7(h)(2) and 10 ICC EoC. See also Schabas (n 7) 197.
182 Prosecutor v. Kupreskic (Appeals Judgment) IT-95-16-T (14 January 2000),
para. 634.
183 Schabas (n 7) 194.
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Femicide and crimes against humanity
rights in femicide could only partially be covered under persecution based on
gender.184
Finally, the term gender as used in the Rome Statute mirrors concerns
related to ‘gender groups’ discussed in Chapter 4. Irrefutably, ICL has taken
a leap forward by officially recognizing gender as grounds for persecution
as a crime against humanity.185 The 1996 International Law Commission
Draft Code of Crimes against the Peace and Security of Mankind did not yet
recognize gender as grounds for persecution186 but the ad hoc tribunals had
already included sexual violence as persecutory acts based on ethnicity.187
Even though the explicit inclusion of gender as grounds for persecution in
Article 7(h) Rome Statute is an important step,188 the ICC has not yet entered
a conviction for persecution based on gender. Under the Rome Statute, gender
is constructed restrictively to refer to ‘the two sexes, male and female, within
the context of society.’189 This narrow concept unnecessarily limits the scope
of the term and it will hardly cover the social constructions and inequalities in
femicide.190
CONCLUDING REMARKS
Crimes against humanity is the most advanced ICL category in terms of
recognizing gender-based harm. Although the Nuremberg Charter does not
mention rape, the ad hoc Statutes do so. Most progressively, the Rome Statute
not only includes rape, but also covers sexual slavery, enforced prostitution,
forced pregnancy, enforced sterilization, or any other form of sexual violence
as forms of crimes against humanity.191 Besides these acts, some of which are
congruent with the acts in femicide, the widespread element of the crime is
184 See Meyersfeld (n 36) 123–134.
185 Luis Moreno-Ocampo, ‘The Place of Sexual Violence in the Strategy of the ICC
Prosecutor’ in Anne-Marie De Brouwer et al. (eds), Sexual Violence as an International
Crime: Interdisciplinary Approaches (Intersentia 2012) 152.
186 Art. 18(e) ILC Draft Code of Crimes against the Peace and Security of Mankind.
187 Prosecutor v. Sainovic (Appeals Judgment) IT-05-87 (23 January 2014), paras
579, 580–599, 600 and 1552.
188 Both the Nuremberg and the Tokyo Charters recognized persecution based on
‘political, racial, or religious grounds’ as a crime against humanity. Ad hoc tribunals
included provisions prohibiting persecution for ‘political, racial, or religious’ grounds.
Art. 6(c) IMT Charter; Art. II(1)(c) Control Council Law No 10; Art. 5(c) Tokyo
Charter; Art. 3(h) ICTR Statute; Art. 5(h) ICTY Statute; Art. 2(h).
189 Arts 7(2)(g) and 7(3) Rome Statute.
190 Oosterveld (n 79) 82.
191 Art. 7(1)(g) Rome Statute. See also Claus Kress, ‘The Crime of Genocide Under
International Law’ in Antonio Cassese et al. (eds), International Criminal Law, Critical
Concepts in Law (Routledge 2015) 162–201.
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78 Conceptualizing femicide as a human rights violation
also useful to understand femicide. As illustrated with the abduction of school-
girls by Boko Haram, femicide occurs in a time and space comparable to the
‘widespread’ element. Another related element is the aspect of impunity as
acts of femicide are rarely investigated.
Certain aspects of crimes against humanity are nevertheless lacking in terms
of encompassing the scope of harm inherent in femicide. Some gendered acts
potentially constituting femicide—like forced marriage, sex-selective killings,
dowry-related murders, psychological harm, and economic harm—are absent
from the crime against humanity provision.192 Furthermore, the attack in
crimes against humanity does not envision an effect beyond the conduct effec-
tuated through individual underlying acts. The attack is an end in and of itself;
unlike the case for genocide, the attack does not need to pursue a larger goal of
physically destroying a specific population group. As such, the attack in crimes
against humanity merely partially encapsulates the aim of femicide. The larger
aim of femicide is to subordinate women and girls, thereby creating an effect
beyond maltreating the civilian population, such as the message that she is an
object to be abused, sold, and potentially killed. In addition to objectifying her,
this treatment instils fear in other women and girls whom the State has left at
the mercy of perpetrators.
The second reason why crimes against humanity is an inappropriate model
for the construction of femicide is that its target is the civilian population. As
seen in Chapter 1, women and girls are part of the civilian population in most
armed conflicts. However, from a feminist perspective, the notion of civilians
is not specific enough because it does not highlight that femicide occurs
against women and girls. As women’s gender plays a fundamental role in
femicide, this aspect should be recognized, as is discussed in Chapter 4.
192 Art. 7(1)(g) Rome Statute.
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79
4. Femicide: Genocide by another name?
INTRODUCTION
As the ‘crime of crimes,’ the crime of genocide denotes the most severe
instances of collective human suffering, aimed at the extermination of different
groups.1 To fulfil the promise of never again, the international community has
pledged to cooperate in the Convention on the Prevention and Punishment
of the Crime of Genocide (the Genocide Convention).2 Article 2 Genocide
Convention defines the term genocide as ‘any act […] committed with intent
to destroy, in whole or in part, a national, ethnical, racial or religious group,
as such.’ Such acts include killing, causing serious bodily and mental harm,
deliberately inflicting certain conditions of life, imposing measures to prevent
birth, or forcibly removing children.3 This definition is enshrined verbatim in
the International Criminal Court (ICC), the International Criminal Tribunal
for the former Yugoslavia (ICTY), and the International Criminal Tribunal
for Rwanda (ICTR) Statutes. The extermination of six million Jews by the
Nazi regime (1933–1945) in the Holocaust and around 800,000 Tutsi over the
course of three months (1994) in Rwanda, and the executions of 8,000 men and
boys in Srebrenica (1995) in Bosnia and Herzegovina have left tragic marks
on the conscience of mankind. While the international community qualifies the
persecution and extermination of human groups as genocide, the specific fate
of women and girls in similar contexts has received little attention.
Genocidal atrocities against female groups have been overlooked for too
long. They merit examination as potential crimes of genocide and may benefit
from the recognition as severe acts attached to the term. 300,000 Peruvian
Quechua women and girls were forcibly sterilized under unsafe conditions,
1 Claus Kress, ‘The Crime of Genocide Under International Law’ in Antonio
Cassese et al. (eds), International Criminal Law, Critical Concepts in Law (Routledge
2015) 124.
2 Convention on the Prevention and Punishment of the Crime of Genocide
(Genocide Convention) (adopted 9 December 1948, entered into force 12 January
1951) 78 UNTS 277.
3 Art. 2(a)(e) Genocide Convention.
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80 Conceptualizing femicide as a human rights violation
causing pain and physical ailments for the rest of their lives,4 and women
and girls are routinely subjected to torture and mutilation by being strangled,
raped, and/or skinned alive in Honduras.5 And yet, crimes against women are
characterized by impunity.
Considering these gloomy outlooks for women’s lives, some scholars and
politicians—such as Dworkin, Segato, and Hirsi Ali—contend that femicide
(or ‘gynocide’) is a form of genocide targeting women as women, based on
their gender alone.6 Other scholars, such as Mesutti and Mariño, are skepti-
cal about using the genocide framework in cases of femicide.7 In particular,
Mesutti argues that femicide does not fit the legal requirements of genocide
given that the female social group cannot constitute a group targeted for
destruction, and that women in femicide are attacked rather than destroyed by
virtue of their gender.8
Femicide is not defined in international criminal law (ICL), let alone recog-
nized as a sub-form or method of genocide. Could crimes against women on
account of their gender rise to the level of genocide? This chapter examines
whether femicide is separate from genocide and should be defined in its own
right, or whether it is a sub-form of genocide. This chapter shows that the
current genocide definition fails to fully cover mass atrocities committed
4 The Quipu Project, https:// interactive .quipu -project .com/ #/ en/ quipu/ intro. As
late as 2017, indigenous women in the Canadian Saskatoon region reported being
coerced or forced into sterilization. Yvonne Boyer and Judith Bartlett, ‘Tubal Ligation
in the Saskatoon Health Region: The Lived Experience of Aboriginal Women’ Sakotaan
Health Region (22 July 2017), www .s askatoonhe althregion .ca/ DocumentsInternal/
Tubal _Ligation _intheS askatoonHe althRegion _the _Lived _Experience _of _Aboriginal
_Women _BoyerandBartlett _July _22 _2017 .pdf. All online sources were accessed 30
October 2021.
5 Sonia Nazario, ‘Someone Is Always Trying to Kill You’ New York Times
(5 April 2019), www .nytimes .com/ interactive/ 2019/ 04/ 05/ opinion/ honduras -women
-murders .html ?smid = pl -share.
6 Andrea Dworkin, Woman Hating (Penguin Books 1974) 93. See also Segato,
who considers women as ‘genus,’ advancing the term ‘femigenocide’ to categorize
feminicide in international law. Rita Laura Segato, La Guerra Contra las Mujeres
(Cofás 2016) 149. See Warren’s gender-neutral approach. Mary Anne Warren,
Gendercide, The Implications of Sex Selection (Rowman & Allanheld Publishers 1985).
See also Alona Hagay-Frey, Sex and Gender Crimes in the New International Law:
Past, Present, and Future (Brill Nijhoff 2011) 131.
7 Ana Messuti, ‘La Dimension Jurídica Internacional del Feminicidio’ in Graciela
Atencio (ed), Feminicidio, el Asesinato de Mujeres por ser Mujeres (Catarata 2015)
48–49 and 56. Mariño considers that, constituting ‘half of humanity,’ women and
girls are too extensive of a group to form a protected group. Fernando Mariño, ‘Una
Reflexión sobre la posible Configuración del Crimen de Feminicidio’ in Fernando
Mariño et al. (eds), Feminicidio, El Fin de la Impunidad (Tirant lo Blanche 2012) 113.
8 Messuti (n 7) 56.
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81
Femicide: Genocide by another name?
against women and girls. The crime of genocide lacks specificity as it only
indirectly comprises sexual violence by way of interpretation. The crime of
genocide also limits its protection to ‘national, ethnic, religious, and racial
groups,’ classifications which do not cover gender-based attacks on women.
In this sense, the crime of genocide requires reform. Yet, through the expan-
sion of the four protected groups, attacks on female social groups would still
not be adequately addressed as the crime of genocide aims at the physical
extermination of groups. This chapter explains the nuance in the concept of
femicide, i.e., the social destruction of women, which serves to keep them in
their place, rather than the physical destruction of an identified group. It shows
that some elements of the crime of genocide may inform the human rights’
concept of femicide. I recognize the limitations to suggesting a change to the
genocide framework, considering the high threshold required and its political
connotation.9
DEFINING GENOCIDE IN INTERNATIONAL LAW
The crime of genocide concerns the survival of entire groups, and its history
suggests that it may be open to protecting human groups such as those con-
stituted by women and girls. Lemkin coined the term ‘genocide’—‘geno’
meaning race or tribe and ‘cide’ meaning killing—in 1944.10 Although its
semantics imply that the crime is only applicable to killings of racial and
national groups, Lemkin conceived of the crime of genocide in much broader
terms. Lemkin described Nazi Germany’s crimes as an attack against civiliza-
tions and a ‘war against peoples.’11 Although Lemkin used national groups as
a principal example—mentioning racial, religious, and ethnic groups as key
contributors to humanity—he was more interested in the groups’ correlation
and contribution to a ‘human cosmos’ than in defining the protected groups.
He viewed groups as socially constructed ‘in the minds of people’ and envi-
sioned broad protection from state-sponsored persecution for many groups.12
The transformation of a nation’s societal structures and subsequent imposition
of the oppressor’s structure was at stake in Lemkin’s definition. Accordingly,
he saw the annihilation of a group in disintegrating its social and political
9 Leena Grover, Interpreting Crimes in the Rome Statute of the International
Criminal Court (Cambridge University Press 2014) 274.
10 Raphael Lemkin, Axis Rule in Occupied Europe, Laws of Occupation, Analysis
of Government, Proposals for Redress (Rumford Press 1944) 79.
11 Ibid., 81.
12 Douglas Irvin-Erickson, ‘Genocide, the “Family of Mind” and the Romantic
Signature of Raphael Lemkin’ (2013) 15(3) Journal of Genocide Research 273–296 at
279.
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82 Conceptualizing femicide as a human rights violation
fabric and imposing the oppressor’s culture on the group. Therefore, while
extermination could be carried out through killings, it could also occur through
other means more present in femicide.13
The abhorrent Nazi atrocities and occupation set out in Lemkin’s Axis Rule
in Occupied Europe, resonate in current understandings of genocide.14 While
closely associated with the Holocaust, the crime of genocide is absent from
the International Military Tribunal Charter; World War II atrocities were
adjudicated as ‘crimes against humanity.’15 Lemkin lobbied for the recognition
of the crime of genocide until the Genocide Convention was adopted on 9
December 1948. Article 2 Genocide Convention defined the crime of genocide
as ‘any of the following acts committed with the intent to destroy, in whole or
in part, national, ethnic, racial or religious groups, as such,’16 including various
methods of genocide.17 Through these underlying acts, the requisite intent to
destroy and the identification of the four protected groups, the crime of gen-
ocide is also distinguishable from crimes against humanity. In contrast to the
scope of crimes against humanity, which has evolved, the scope of the crime of
genocide remains stagnant: the latter was replicated verbatim in international
criminal tribunals’ statutes.18 The crime of genocide has not grown to reflect
the harms of today or been adapted to current developments in international
law, counteracting Lemkin’s intention to ‘denote an old practice in its modern
development.’19
Since the 1990s, international tribunals have taken some steps towards rec-
ognizing rape and sexual violence as types of violence which can bring about
the destruction of protected groups.20 Through rape, entire communities can
fall apart, as women who have been raped may no longer wish to procreate or
emotionally contribute to their communities. However, most harm in femicide
entails continuous measures or an arduous life, female genital mutilation
13 Ibid. See also UNGA Res 96(1) (11 December 1946) UN Doc A/RES 96 (1)
[hereinafter UNGA Resolution on Genocide.
14 Lemkin (n 10).
15 Antonio Cassese et al. (eds), Cassese’s International Criminal Law, 3rd edition
(Oxford University Press 2013) 109.
16 Art. 2 Genocide Convention. See Art. 6 Statute of the International Criminal
Court (Rome Statute) (adopted 17 July 1998, entered into force 1 July 2002) 2187
UNTS 38544. See also Lars Berster, ‘Convention on the Prevention and Punishment
of the Crime of Genocide: A Commentary’ in Christian J. Tams, Lars Berster and
Björn Schiffbauer (eds), Convention on the Prevention and Punishment of the Crime of
Genocide: A Commentary (Hart Publishing 2014) 279–283.
17 Art. 6 Rome Statute; Art. 4(2) ICTY Statute; Art. 2(2) ICTR Statute.
18 Art. 2 ICTR Statute; Art. 4 ICTY Statute; Art. 6 Rome Statute.
19 Lemkin (n 10) 79. See also Cassese (n 15) 110.
20 Hagay-Frey (n 6) 128.
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83
Femicide: Genocide by another name?
(FGM), and forced marriage, inflicting injuries which may cause long-term
health complications and/or eventual death.21 Against this backdrop, interna-
tional tribunals continue to struggle to fit crimes affecting women as women
into the narrow genocide definition.
‘Traditional’ Methods of Genocide
The methods of genocide committed against, and intended to destroy, a pro-
tected group are not all equal.22 Being female is a significant factor which
influences the manner of ill-treatment a woman or girl suffers in a situation of
genocide, where the perpetrator attempts to destroy the group. Archetypally,
women and girls are attacked through rape, sexual enslavement, or other
slow-death measures.23 Perpetrators of genocide tend to eliminate civilian men
and boys by killing them. While killings are listed as the first measure, rape
and other harm are not even mentioned.
Killing
The act of ‘killing members of a group’ is seen as emblematic of the violence
committed during a genocide; it is no coincidence that this method features
first in the definition of genocide offered by the Genocide Convention.24 In
the early phase of genocide, perpetrators usually execute the men and boys of
the protected group.25 The Convention covers immediate killings of men and
boys, but falls short of encompassing slow-death measures against women
21 Susan Deller Ross, Women’s Human Rights: The International and Comparative
Law Casebook (University of Pennsylvania Press 2013) 455–501; James Burnham
Sedgwick, ‘Memory on Trial: Constructing and Contesting the “Rape of Nanking” at
the International Military Tribunal for the Far East 1946–1948’ (2009) 43(5) Modern
Asian Studies 1229–1254. Testimony of former ‘comfort woman’ Chong Ok Sun.
Omar Swartz, Transformative Communication Studies, Culture, Hierarchy and the
Human Condition (Troubadour Publishing 2008) 232–233; Hagay-Frey (n 6) 128.
22 Cassese (n 15) 110.
23 Elisa von Joeden-Forgey, ‘Gender and the Future of Genocide Studies and
Prevention’ in Amy E. Randall (ed), Genocide and Gender in the Twentieth Century
(Bloomsbury 2015) 299; Anne-Marie De Brouwer, Supranational Criminal Prosecution
of Sexual Violence: The ICC and the Practice of the ICTY and the ICTR (Intersentia
2005) 48.
24 Michelle Jarvis and Elena Martin Salgado, ‘Future Challenges to Prosecuting
Sexual Violence under International Law: Insights from ICTY Practice’ in Anne-Marie
De Brouwer et al. (eds), Sexual Violence as an International Crime: Interdisciplinary
Approaches (Intersentia 2012) 118.
25 Adam Jones, Gendercide and Genocide (Vanderbilt University Press 2004) 3.
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84 Conceptualizing femicide as a human rights violation
and girls, where women and girls are kept alive for sexual abuse.26 As Von
Joeden-Forgey observes, ‘the subtle argument sometimes seems to be that
(civilian) men suffer the worst fate because they are so often targeted for
direct killing.’27 However, women and girls may be killed through slow-death
measures as time passes, sometimes years after the genocide.28 For example,
Hutu militia brutally raped women by introducing sharp objects, such as
broken glass, into their vaginas. Even if this treatment did not kill all of them,
it severely physically and mentally injured the survivors for the rest of their
lives.29 At other times, soldiers raped women to inflict them with HIV, an ulti-
mately lethal disease which women would transmit to their husbands and the
community at large.30 Of course, slow-death measures, such as the impalement
of the genitals of a young Tutsi girl who died of her injuries, can constitute
‘killing members of a group.’31 However, sexual violence which leaves women
alive may not be covered by ‘killing members of a group’ at the time of pros-
ecution. Since complications may happen later in life, it is thus important that
slow-death violence frequently targeting women and girls is covered by other
methods of genocide. Equally important, some women and girls’ resilience
and resistance contribute to their survival, an aspect which must be acknowl-
edged in methods of femicide.32
Causing serious bodily or mental harm
Even though the act of ‘causing serious bodily or mental harm’ is the paradig-
matic method used to adjudicate rape as genocide, on the face of it, it does not
include sexual violence. Before 1998, no international tribunal had envisioned
or interpreted sexual violence as a form of genocide. The many rapes of Jewish
women and girls in the Holocaust were largely ignored, possibly because Nazi
law prohibited sexual intercourse between those of Jewish origin and so-called
Arians. Testimonies by survivors suggest that sexual violence against and
26 Helen Fein, ‘Genocide and Gender: The Uses of Women and Group Destiny’
(1999) 1(1) Journal of Genocide Research 43–63 at 51.
27 Von Joeden-Forgey (n 23) 299.
28 Ibid., 303–304.
29 De Brouwer (n 23) 50.
30 International Criminal Tribunal for Rwanda (ICTR), Prosecutor v. Akayesu
(Judgment) ICTR-96-4-T (2 September 1998), para. 731; Prosecutor v. Krstic
(Judgment) ICTY-98-33 (2 August 2001), para. 513; UN Economic and Social Council,
Report on the Situation of Human Rights in Rwanda (29 January 1996) UN Doc E/
CN.4/1996/68, para. 20.
31 See Prosecutor v. Gacumbitsi (Judgment) ICTR-2001-64-T (17 June 2004),
paras 261 and 288.
32 Susan Harris Rimmer, Gender and Transitional Justice, The Women of East
Timor (Routledge 2010) 98.
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85
Femicide: Genocide by another name?
forced prostitution of female concentration camp internees was much more
common than commonly assumed.33
In Akayesu, the ICTR interpreted ‘causing serious bodily and mental harm’
to include rape as a genocidal act if perpetrated with the intent to destroy a pro-
tected group. While Akayesu did not rape the victims himself, he was a local
mayor with considerable influence over his community who facilitated and
encouraged the rape of Tutsi women and girls.34 The initial indictment included
charges of rape as a crime against humanity and a war crime, but no charges on
sexual violence as a means of genocide. Only when witnesses started testifying
about rape perpetrated by Hutu militias during the Rwandan genocide, did the
only female judge on the bench, Navanteheem Pillay, urge the Prosecutor to
amend the indictment to include rape in the genocide charges.35
The ICTR held that the repeated rapes of Tutsi women, often in public and
by several different perpetrators, constituted the prohibited genocidal act of
serious bodily and mental harm.36 One rape survivor witnessed her mother
begging one of the rapists to ‘kill her daughters rather than raping them in front
of her,’37 to which the perpetrator replied that ‘the principle was to make them
suffer.’38 The Trial Chamber concluded that the suffering inflicted on women
was ‘one of the worst ways of inflicting harm’ considering sexual violence
causes bodily and mental harm, noting that such harm went beyond individual
harm and targeted the destruction of the Tutsi group.39 Akayesu’s conviction
for rape as genocide was ground-breaking in recognizing harm to women and
girls as genocide.40
33 Rochelle Saidel, The Jewish Women of Ravensbrück Concentration Camp
(University of Wisconsin Press 2006) 213.
34 Akayesu (n 30) para. 693.
35 For discussions on Judge Pillay and other Judges’ roles, see Kelly Askin,
‘Prosecuting Wartime Rape and other Gender-Related Crimes under International
Law, Extraordinary Advances, Enduring Obstacles’ in Sari Kouvo and Zoe Pearson
(eds) Gender and International Law (Routledge 2014) 196; Hagay-Frey (n 6) 97; Alice
Edwards, Violence against Women under International Human Rights Law (Cambridge
University Press 2011) 105.
36 Akayesu (n 30) para. 731.
37 Ibid., paras 423 and 430.
38 Ibid.
39 Ibid., para. 731. See also Hilary Charlesworth and Christine Chinkin, The
Boundaries of International Law, a Feminist Analysis (Juris Publishing 2000) 318.
40 For other charges under ‘serious bodily and mental harm,’ see (rape of a girl by
the accused) Prosecutor v. Muhimana (Judgment) ICTR-95-1B (28 April 2005), para.
513; (rape of girls before killing them) Prosecutor v. Rutaganda (Appeals Judgment)
ICTR-96-3 (26 May 2003), paras 392 and 398.
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86 Conceptualizing femicide as a human rights violation
Subsequent ICTR and ICTY case law endorsed the inclusion of rape as
a form of genocide ‘causing serious bodily and mental harm.’41 For example,
in Prosecutor v. Krstic, the ICTY held that ‘inhuman treatment, torture, rape,
sexual abuse and deportation’ constitute ‘serious mental and bodily harm.’42
Moreover, the Tribunal found that serious bodily and mental harm ‘results
in a grave and long-term disadvantage to a person’s ability to lead a normal
and constructive life’43 and involves injuries that ‘go […] beyond temporary
unhappiness, embarrassment or humiliation.’44 The injury need not be ‘per-
manent and irremediable’ to amount to serious bodily and mental harm but it
‘must be assessed on a case by case basis and with due regard for the particular
circumstances.’45 In Prosecutor v. Gacumbitsi, the ICTR recognized that the
retaliatory rapes and sexual mutilation of eight women and girls, including one
pregnant woman who had previously refused to marry a Hutu man, caused
‘physical harm’ to the members of the Tutsi group and constituted the actus
reus of genocide.46 This method of serious bodily and mental harm has become
equated with rape instrumentalized for genocide.47
Despite this body of case law on sexual violence as genocidal acts, the
drafters of the Rome Statute replicated the ad hoc tribunals’ implicit language
of ‘causing serious bodily and mental harm,’ missing the opportunity to
include rape in the statutory language.48 Fortunately it is included at least in the
Elements of Crime (EoC), which state that ‘[serious bodily and mental harm]
may include, but is not necessarily restricted to, acts of torture, rape, sexual
violence or inhuman or degrading treatment.’49 This marginal recognition of
rape and sexual violence as forms of genocide in the Rome Statute neverthe-
less underestimates and obscures harm inflicted on women,50 enabling the
prosecution to exercise discretion when bringing rape charges.51
The statutory definition of genocide is clear: rape is only a method of geno-
cide when it is committed with the requisite intent to destroy a protected racial,
religious, ethnic, or national group. However, as feminist legal scholars have
41 E.g., Prosecutor v. Furundžija, IT-95-17/1 (10 December 1998), para. 172;
Prosecutor v. Musema (Appeals Judgment) ICTR-96-13 (16 November 2001), para.
156; Prosecutor v. Semanza, ICTR-97-20 (15 May 2003) paras 320–321.
42 Krstic (n 30) para. 513.
43 Ibid., paras 486 and 513. See also Akayesu (n 30) para. 731.
44 Krstic (n 30) para. 513.
45 Ibid.
46 Gacumbitsi (n 31) paras 215, 224 and 292–293.
47 Jarvis and Salgado (n 24) 118.
48 See Art. 6(b) Rome Statute.
49 Art. 6, ICC EoC, fn. 3.
50 See also Charlesworth and Chinkin (n 39) 321.
51 See Hagay-Frey (n 6) 95.
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87
Femicide: Genocide by another name?
argued, rape and sexual violence also attack women as women. MacKinnon
considers that women in genocide are raped both as members of an ethnic
group and based on their gender.52 The paradigmatic rapes during the Rwandan
genocide support MacKinnon’s view, as the targeted women were almost
exclusively of Tutsi ethnicity, while Hutu women were generally spared.53
A case in point: when a Hutu man found out that he had ‘mistakenly’ raped
a Hutu woman, believing her to be a Tutsi, he apologized to her.54 This suggests
that women were targeted because they belonged to the Tutsi ethnicity.55 In
addition to the destruction due to their ethnicity, certain instances of violence
demonstrate dominance over, contempt for and intent to terrorize women.56 In
one incident, ‘the accused, on a public road, ordered militia to undress the body
of a Tutsi woman who had just been shot dead, to fetch and sharpen a piece
of wood, which he then instructed them to insert into her genitalia. […] The
body of the woman, with the piece of wood protruding from it, was left on the
roadside for some three days thereafter.’57 In line with MacKinnon’s proposi-
tion, the ICTR thus exposed the contempt perpetrators held for, and their intent
to harm Tutsi women based on their gender as well as their Tutsi ‘ethnicity.’
Meanwhile, Copelon stresses that harm in genocide is mainly gendered.
She notes that genocidal rape (aimed at ethnic destruction) is mistakenly seen
as rating hierarchically higher than other typologies of rape, for example,
‘rape […] for domination, terror, booty, or revenge in Bosnia and [rape in and
outside armed conflict].’58 Thus, she considers that gendered aspects of rape
are at risk of being obfuscated by an overemphasis on ethnic rape in geno-
cide.59 Copelon emphasizes that ‘torture and rape in conflict situations have
too much in common with rape in the marital bedroom’ and that peacetime and
wartime rapes are therefore similar.60
52 Catharine MacKinnon, Are Women Human? And Other International Dialogues
(Harvard University Press 2007) 5–16 and 187.
53 Ibid.
54 Muhimana (n 40) paras 517–518.
55 Arsiné Grigoryan, ‘Severing the Next Generation: Sexual Violence in Genocide’
(2015) 3(2) Journal of Legal Issues 41–63; Akayesu (n 30) 732.
56 See MacKinnon (n 52) 5–16 and 187.
57 Prosecutor v. Niyitegeka (Judgment) ICTR-96-14-T (16 May 2003), para. 316.
58 Rhonda Copelon, ‘Surfacing Gender: Re-Engraving Crimes Against Women in
International Humanitarian Law’ (1994) 5(2) Hastings Women’s Law Journal 243–266
at 259.
59 Ibid., 246.
60 Rhonda Copelon, ‘Gender Crimes as War Crimes: Integrating Crimes against
Women into International Criminal Law’ (2000) 46 McGill Law Journal 217–240 at
239.
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88 Conceptualizing femicide as a human rights violation
The exposure of gendered harm to women is an objective of conceptualizing
femicide. While Copelon rightly considers that no hierarchy of severity should
be attributed on the basis of where the rape occurs, MacKinnon persuasively
shows that the persecution of women and girls is complexly influenced by
various factors, which can help us define the targeted group in femicide. I con-
sider that (1) gender is the predominant factor in femicide, with the caveat that
other factors, such as nationality, ethnicity, religion and race, influence the
violence experienced by women. For example, irrespective of their age and
socio-economic background, women and girls have been attacked in Ciudad
Juarez in Mexico. At the same time, immigration status, ethnicity, religion, and
other criteria have effect on the likelihood of women being attacked and the
kind of violence to which they are subjected.61 However, I also consider that
(2) in femicide, dominance over women is so pronounced that it forms part
of the group’s ideology, even where ethnicity and other factors play a crucial
role in how women and girls are attacked.62 Although Yazidi’s beliefs lie
at the heart of their persecution, the female Yazidi population is targeted in
distinctive ways: They are captured, inventoried, priced, sold, and sexually
enslaved at Islamic State in Iraq and Al-Sham (ISIS)’ slave markets.63 An ISIS
pamphlet accentuates ISIS’ ideology justifying the use of female Yazidi as
sexual slaves.64
Inflicting adverse life conditions
Another method by which the destruction of a protected group can be achieved,
is the steady extermination of a group through the imposition of adverse life
conditions.65 Through sexual violence and rape, forced marriage, enforced
abortion, and sexual slavery, perpetrators can inflict life conditions which
bring about a group’s physical destruction.66 This method, although unspecific
to women, could in principle capture the slow-death measures imposed on
women and girls, and their community. Having been raped, a girl may become
an outcast and deemed unfit for marriage, bringing shame to her family, which
61 See Rosa Fregoso and Cynthia Bejarano, ‘Introduction: A Cartography of
Femicide in the Americas’ in Rosa-Linda Fregoso and Cynthia Bejarano (eds),
Terrorizing Women, Feminicide in the Americas (Duke University Press 2010) 12.
62 See Messuti (n 7) 56.
63 Valeria Cetorelli and Sareta Ashraph, ‘Counting Mass Atrocity: A Demographic
Documentation of ISIS’s Attack on the Yazidi Village of Kocho’ LSE Blogs (5 July
2019), https:// blogs .lse .ac .uk/ mec/ 2019/ 07/ 05/ counting -mass -atrocity -a -demographic
-documentation -of -isiss -attack -on -the -yazidi -village -of -kocho/ .
64 See Mah-Rukh Ali, ‘ISIS and Propaganda: How ISIS Exploits Women’, Reuters
Institute Fellowship Paper (University of Oxford 2015) 19.
65 Akayesu (n 30) paras 505–506. See also Kress (n 1) 176.
66 Deller Ross (n 21) 407.
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89
Femicide: Genocide by another name?
may destroy her relationship with the larger community, leading to the group’s
gradual physical destruction.67 Physical injuries leading to infertility and ina-
bility to give birth along with the infection with diseases, such as HIV, concern
another facet of such slow-death measures.68 While this method of genocide
recognizes women’s plight, it remains dead letter because no court has applied
it. Had it been stronger worded, this method may have been conducive to the
recognition of acts of femicide.
Imposing measures to prevent birth
This method can be understood as attacks on a group’s members’ reproductive
function, which limits the group’s capacity to reproduce and sustain itself.69
Such examples include forced sterilization, forced birth control, forced preg-
nancy, forced abortion, or injury through rape.70 In the context of the holocaust,
women and girls were subjected to malnourishment and living conditions in
concentration camps, often causing their menstruations to stop, which had
long-term effects on their reproductive capacity in some instances.71 Survivors
from Ravensbrück concentration camp have testified to having been forced to
abort in the final stages of pregnancy.72 All pregnancies up to seven months
had to be terminated in the Terezin Ghetto, Adolf Eichmann, one of the
organizers of the holocaust, being held criminally responsible for his role in
imposing measures to prevent births by an Israeli court.73
Birth can also be prevented through psychological and physical means.
Rape can have a ‘chilling effect on the normative relations between a man and
a woman as the victims may be traumatized in such a way that they no longer
wish to procreate.’74 A physical way to prevent births is through the appropri-
ation of women and girl’s bodies. For example, Bosnian Muslim women were
raped until pregnant, which physically prevented them from giving birth to
their own ethnic group.75
67 Akayesu (n 30) para. 731; Krstic (n 30) para. 513.
68 Catharine MacKinnon, ‘Rape, Genocide and Women’s Human Rights’ (1994) 17
Harvard Women’s Law Journal 5–16 at 9; Akayesu (n 30) para. 508.
69 Fein (n 26) 43.
70 See Jonathan Short, ‘Sexual Violence as Genocide: The Developing Law of
the International Criminal Tribunals and the International Criminal Court’ (2003) 8
Michigan Journal of Race & Law 503–527 at 510. Akayesu (n 30) para. 508. See for
forced sterilization in a concentration camp, Saidel (n 33) 211.
71 Saidel (n 33) 210.
72 Ibid., 211.
73 Attorney-General of Israel v. Adolf Eichmann, Judgement (District Court of
Jerusalem) (1968) 36 ILR 5, para. 244.
74 Short (n 70) 509.
75 Akayesu (n 30) para. 507; Short (n 70) 510–514.
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90 Conceptualizing femicide as a human rights violation
Forcibly transferring children
The act of ‘forcibly transferring children’ to another group is a remnant and
sub-form of cultural genocide.76 Through the removal of children from the tar-
geted group and their transfer to another group, the children’s original culture
and language are susceptible to disappearance, while their physical existence
remains unaffected.77 Such a transfer of children effectively destroys the social
existence and cultural identity of a protected group.78 For example, the abduc-
tion and (sexual) enslavement of United States Native American children as
‘apprentices’ in American households, practiced until the 1880s, led to the
physical, mental, and economic destruction of many Native tribes.79
The psychological pressure to give up children may also be covered under
this provision. Footnote 5 of the ICC’s Elements of Crimes notes that ‘[t]he
term “forcibly” is not restricted to physical force, but may include threat of
force or coercion, such as that caused by fear of violence, duress, detention,
psychological oppression or abuse of power, against such person or persons
or another person, or by taking advantage of a coercive environment.’80 This
interpretation could imply the trafficking of girls as sex slaves. Finally, as de
Brouwer suggests, the forcible transfer of children is theoretically possible
through the rape of women who bear children belonging to the ethnic group
of the perpetrator,81 or the abduction of girls as child soldiers who are incorpo-
rated into the perpetrator’s group.82 This method signals that the ‘destruction’
in genocide is not always a bio-physical one, and sometimes resembles the
social subordination of groups in femicide.
Remarks
That sexual violence and rape amount to ‘serious bodily and mental harm,’ and
can constitute forms of genocide, is now well established.83 However, vague
statutory language may occasion the prosecution not to conduct a proper inves-
tigation or forgo a charge for rape crimes as genocidal methods. As Chinkin
pertinently indicates, ‘[ad hoc tribunals have] shown considerable sensitivity
to the situation of women, but they have been constrained by the language of
76 Cassese (n 15) 116–117.
77 Ibid., 117.
78 Ibid.
79 Lindsey Brendan, Murder State: California’s Native American Genocide
1846–1873 (University of Nebraska Press 2012) 193.
80 ICC EoC, fn. 5. See also Akayesu (n 30) para. 509; De Brouwer, Supranational
Criminal Prosecution (n 23) 59.
81 De Brouwer. ibid., 60.
82 Ibid.
83 Grigoryan (n 55) 63 and 50; Hagay-Frey (n 6) 131.
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91
Femicide: Genocide by another name?
their statutes.’84 Forced marriage and sexual slavery have not yet been charged
as forms of genocide; arguably present, these crimes could have been adjudi-
cated as methods of genocide akin to rape by the ICTR.85 De Brouwer point-
edly suggests amending the Rome Statute to list ‘rape, sexual slavery, enforced
prostitution, forced pregnancy, enforced sterilization, or any other form of
sexual violence of comparable gravity’ as genocidal methods.86 The absence
of these acts from international criminal tribunals’ statutes undermines the
perception of the criminal nature of crimes against women, as well as the moral
condemnation and deterrent effect attached to them.87 In their current form,
these methods of genocide are not adequate to reflect the experience of women
and girls in femicide.
PROTECTED GENDER GROUPS?
The Genocide Convention protects only ‘national, ethnical, racial or reli-
gious groups, as such;’ its text does not list gendered groups. The Genocide
Convention should be expanded to cover gendered groups, including
LGBT2Q+ groups, thereby responding to present-day reality and societal
contexts. I make an argument for doing so in the context of the crime of gen-
ocide, while cautioning that gendercide would only constitute another neutral
term which does not serve women’s interests. Three provisos make expansion
of the genocide definition a delicate concern. First, the scope of genocide has
remained unchanged from its inception and is therefore resistant to change.88
Second, known as ‘the crime of crimes,’ the crime of genocide is placed above
the level of crimes against humanity. Consequently, its group-destructive
violence must reach the highest threshold.89 The third limitation relates to the
conflation of the terms gender (referring to social constructs) and sex (referring
to biological differences) in Article 7(3) Rome Statute, which defines gender
as ‘the two sexes, male and female, within the context of society,’ framing
84 Charlesworth and Chinkin (n 39) 321.
85 See for discussions of forced marriage, Gacumbitsi (n 31) paras 224 and
292–293.
86 Daniela De Vito, Rape, Torture and Genocide, Some Theoretical Implications
(Nova Science Publishers 2011) 106–107; De Brouwer (n 23) 80.
87 See also De Brouwer, ‘Supranational Criminal Prosecution of Sexual Violence,’
in Jackie Jones et al. (eds.), Gender, Sexualities, and the Law (Routledge 2011)
204–205.
88 The crime of genocide codified customary international law, making States
reluctant to alter its conception. Grover (n 9) 274.
89 Ibid.
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92 Conceptualizing femicide as a human rights violation
gender as a biological issue, rather than a social construction.90 This ICL defi-
nition has been subject to criticism for arguably determining who belongs to
the protected gender group.91 The term gender should be broadly construed to
include persecution based on sexual orientation, gender identity, and similar
gendered groups for expansion to be effective.
Current Scope
To date, the treaty text expressly protects ‘national, ethnic, racial, and religious
groups’ from extermination, protection which ICL scholars consider to be
limited to these four groups.92 Objectively defined, a national group is com-
posed of individuals who ‘share a legal bond based on common citizenship’––
women and girls may in some societies be legally excluded from citizenship.93
The ‘racial’ group’s characterization ‘based on the hereditary physical traits’
is problematic; taken analogously, it would concern women and girls’ bio-
logical sex, an excessively restrictive notion.94 The identification of groups
as racial was the basis for Nazi Germany’s persecution of peoples unrelated
to the Germans—such as the Poles, Slovenes, and Serbs—95 and the extermi-
nation of peoples—such as the Jewish and Roma people—deemed racially
inferior to Aryans—such as the Germans, Dutch, Norwegians, Flemings, and
Luxembourgers.96 By contrast, an interpretation of ethnic groups as generally
90 Valerie Oosterveld, ‘The Definition of “Gender” in the Rome Statute of the
International Criminal Court: A Step Forward or Back for International Criminal
Justice?’ (2005) 18 Harvard Human Rights Journal 56–82 at 71.
91 See Valerie Oosterveld, ‘Gender-based Crimes Against Humanity’ in Leila
Nadya Sadat (ed), Forging a Convention for Crimes Against Humanity (Cambridge
University Press 2011) 96.
92 Werle contends that the Genocide Convention’s history does not suggest that
other groups should be encompassed, since the crime was limited to the four stable
groups. Gerhard Werle and Florian Jessberger, Principles of International Criminal
Law (Oxford University Press 2014) 301–302; Douglas Guilfoyle, International
Criminal Law (Oxford University Press 2016) 274; Cassese (n 15) 120. See also Krstic
(n 30) paras 6–8; Prosecutor v. Bashir (Decision on the Prosecution’s Application
for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir) ICC-02/05-01/09 (4
March 2009), paras 134–137.
93 Akayesu (n 30) para. 510, referring to Liechtenstein v. Guatemala (Nottebohm)
(Judgment) ICJ Reports 1955, para. 22.
94 See Akayesu (n 30) 514.
95 Lemkin (n 10) 81–82.
96 Arguably, the encouragement of Nazis to procreate with Dutch and Norwegian
women to expand the German race within States under German control constitutes rape
as genocide. Lemkin (n 10) 86–87.
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93
Femicide: Genocide by another name?
consisting of a collection of people who share the same culture and language,97
could serve as a model for understanding the groups targeted in femicide, as
‘ethnicity is by [its] very nature [a] social construct[].’98 This indicates that
social groups such as those characterized by their gender in femicide, could
be protected under ICL. Finally, a religious group shares a ‘denomination
or mode of worship [or] common beliefs,’ which cannot be comparable to
a gender group.99 These definitions are tools to objectively determine mem-
bership in minority groups.100 Obviously, protection is awarded to women and
girls solely insofar they belong to one of the four protected groups.
Moreover, membership in an objectively defined protected national, ethnic,
religious, or racial group is also determined by the perpetrators’ subjective
view. Only if perpetrators perceive persons as belonging to a protected group
and, on the basis of this belief, target individuals and members of said group,
they are responsible for the commission of acts of genocide. The subjec-
tive criterion covers genocidal acts based on discriminatory views against
a segment of the population, such as individuals with a common heritage, and
other national minorities which would more tenuously classify as a national,
ethnic, religious, or racial group.101 For example, perpetrators may perceive
an individual of Christian faith to have a particular trait, such as their Jewish
heritage, although it may not (or no longer) objectively exist. What constitutes
a group in some cases may depend on the perpetrators’ subjective perceptions
vis-à-vis the groups they intend to destroy.102 Transposing this reasoning to
protected female groups means that, although an individual could self-identify
as a member of a protected female group, the perpetrator must view the
individual as a woman for her to be stigmatized and persecuted based on her
membership to the protected group.103 The perpetrator’s subjective view must
match one of the four protected groups to fall under the restrictive protection of
the Genocide Convention.104 The four protected groups insufficiently consider
the perpetrators’ imaginative criminal minds, which may include subjective
misconceptions about a group which they intend to exterminate, beyond these
97 Akayesu (n 30) para. 513.
98 UN International Commission of Inquiry, Report of the International Commission
of Inquiry on Darfur to the United Nations Secretary-General, Pursuant to Security
Council Resolution 1564 (25 January 2005), para. 499.
99 Ibid.; Werle and Jessberger (n 92) 802.
100 Krstic (n 30) para. 556.
101 See Gacumbitsi (n 31) para. 254; Krstic (n 30) paras 559–560; Hagay-Frey (n 6)
130.
102 Hagay-Frey, ibid.
103 Cf. Guilfoyle (n 92) 275.
104 Kress (n 1).
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94 Conceptualizing femicide as a human rights violation
groups’ objective classifications. With this in mind, I must examine to what
extent the genocide definition can be broadened.
Expanding Protection
Some precedents signal that expansion of the genocide definition to recognize
gender groups may be feasible.105 The 1951 Refugee Convention relating to
the Status of Refugees has been interpreted to allow asylum seekers to receive
refugee status based on claims relating to gender persecution.106 Even the Rome
Statute offers protection from persecution based on gender, albeit as a crime
against humanity.107 At the domestic level, the Uruguayan criminal code
expanded its anti-genocide legislation to include ‘a group with its own identity
based on reasons of gender, sexual orientation, cultural and/or social values,
age, and disability or health.’108 With these precedents in mind, I explore two
avenues to expand protection of the crime of genocide. This endeavor should
be understood as part of the efforts to make international crimes applicable to
femicide. Obviously, caution is warranted when reinterpreting the crime of
genocide, and the addressed stipulations to such an attempt must be kept in
mind.
Applying the Vienna Convention on the Law of Treaties (VCLT), which
governs the interpretation of treaties in international law, supplemented by
practical feminist legal reasoning, the definition of genocide could cover
groups which do not fall under the umbrella of national, ethnic, religious,
or racial groups.109 I use feminist practical legal reasoning to argue for the
inclusion of gendered groups in the genocide framework, based on a changed
105 Hagay-Frey (n 6) 128.
106 Art. 1(A)(2) Convention Relating to the Status of Refugees (adopted 28
July 1951, entered into force 22 April 1954); UNHCR, Guidelines on International
Protection: Gender-Related Persecution within the context of Art. 1A (2) of the 1951
Convention and/or its 1967 Protocol relating to the Status of Refugees Guidelines on
gender-based persecution (7 May 2002) UN Doc HCR/GIP/02/01 [hereinafter UNHCR
Guidelines].
107 Art. 7(3) Rome Statute.
108 Art. 16 Law No 18.026 (2006) de Cooperación con la Corte Penal Internacional
en Materia de Lucha contra el Genocidio, los Crimenes de Guerra y de Lesa Humanidad
[unofficial translation by the author].
109 Another qualification must be addressed: Akande argues that the general rules of
interpretation outlined in the VCTL are restricted with regard to international criminal
law treaties by principles of criminal law, such as in dubio pro reo, according to which
criminal conduct must be interpreted in favor of the accused. Dapo Akande, ‘Treaty
Interpretation, the VCLT and the ICC Statute: A Response to Kevin Jon Heller and Dov
Jacobs’ EJIL: Talk! (25 August 2013), www .ejiltalk .org/ treaty -interpretation -the -vclt
-and -the -icc -statute -a -response -to -kevin -jon -heller -dov -jacobs/ .
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Femicide: Genocide by another name?
socio-cultural context.110 In doing so, I shed light on women’s present inter-
ests and take account of their historic subordination.111 With this method,
I attempt to detect and be attentive to injustices which would not otherwise be
revealed by considering factors like the history of a provision, and the legal
and social contexts in which a rule is implemented.112 Although the treaty text
enumerates national, ethnic, religious, and racial entities as protected groups,
the object and purpose of the Genocide Convention suggests that other groups
may be protected. Considering the preparatory work and the circumstances of
conclusion, the meaning of protected groups is at least unclear, if not absurd
and unreasonable. Given the social context in the drafting phase, the drafters
left out the issue of ‘gender.’ The protection of gendered groups under the
Genocide Convention in todays’ societal context appears justified.
As provided in Article 31 VCLT, treaties must be interpreted ‘in good faith
in accordance with the ordinary meaning to be given to the terms of the treaty
in their context and in the light of its object and purpose.’ The treaty text
expressly protects ‘national, ethnic, racial, and religious groups’ from extermi-
nation.113 However, the object and purpose of the Genocide Convention prin-
cipally supports the protection of gender groups. As the International Court of
Justice (ICJ)’s Advisory Opinion suggests in Reservations to the Convention
on the Prevention and Punishment of the Crime of Genocide, the object and
purpose is to protect the ‘very existence of certain human groups and […]
to confirm and endorse the most elementary principles of morality.’114 The
Preamble confirms that ‘genocide has inflicted great losses on humanity’ and
that international cooperation is required ‘to liberate mankind from such an
odious scourge.’115 Even though the emphasis is placed on nations, the object
and purpose are the protection of entities which characterize humankind.116
That the protection of humanity is limited to only four groups appears rather
absurd in terms of Article 32 VCLT. At the very least, considering the terms
of the treaty, the four protected groups and the aim of protection seem incon-
sistent with each other.
110 Katharine Bartlett, ‘Feminist Legal Methods’ (1990) 104(4) Harvard Law
Review 828–888 at 855.
111 Ibid., 861–862.
112 Ibid., 851–853.
113 Guilfoyle (n 92) 274; Cassese (n 15) 120; Werle and Jessberger (n 92) 301–302;
Krstic (n 30) paras 6–8.
114 Reservations to the Convention on the Prevention and Punishment of the Crime
of Genocide, Advisory Opinion, ICJ Reports 1951.
115 Preamble Genocide Convention.
116 Lemkin (n 10) 79.
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96 Conceptualizing femicide as a human rights violation
According to Article 32 VCLT:
[r]ecourse may be had to supplementary means of interpretation, including the
preparatory work of the treaty and the circumstances of its conclusion, in order
to confirm the meaning resulting from the application of Article 31, or to deter-
mine the meaning when the interpretation according to Article 31: (a) leaves the
meaning ambiguous or obscure; or (b) leads to a result which is manifestly absurd
or unreasonable.
An examination of the preparatory work reveals that an understanding of
gendered groups meriting protection was inexistent in the historical context.
The Nazi regime systematically persecuted homosexuals.117 Once liberated
from the concentration camps, their sexual orientation was still considered
a crime. The persecution based on gendered grounds went unaddressed by
the International Military Tribunal, and little concern was expressed for those
persecuted based on their sexual orientation.118 In this historical context, it is
unsurprising that drafters of the Genocide Convention in 1948 were silent on
questions of sex and gender, sexual orientation and gender identity.
However, the ICTR found that the drafters intended the list of protected
groups to include other ‘permanent and stable’ groups.119 The ICTR examined
whether the Tutsi group could be classified as a protected group since the Tutsi
are not ethnically distinct from the Hutu group. The Tutsi separation from
the Hutu is based on socially ascribed differences introduced and reinforced
by colonists who divided the two groups through the distribution of ethnicity
cards.120 As the Tutsi did not fit the legal umbrella of protected ‘religious,
racial, national, or ethnic’ groups, the ICTR pondered ‘whether it would be
impossible to punish the physical destruction of a group as such under the
Genocide Convention, if the said group, although stable and membership is
by birth, does not meet the definition of any one of the four groups expressly
protected by the Genocide Convention.’121 Considering the drafters intended to
exclude mobile political, cultural and economic unions, in which membership
could change easily,122 the ICTR found that ‘the Tutsi did indeed constitute
117 Alycia Feindel, ‘Reconciling Sexual Orientation: Creating a Definition of
Genocide that includes Sexual Orientation’ (2005) 13 Michigan State Journal of
International Law 197–225 at 197.
118 For further discussion, see ibid.
119 Werle and Jessberger (n 92) 293.
120 Angela Hefti and Laura Ausserladscheider Jonas, ‘From Hate Speech to
Incitement to Genocide: The Role of the Media in the Rwandan Genocide’ (2020) 38
Boston University International Law Journal 2–37 at 5.
121 Akayesu (n 30) paras 516 and 701–702.
122 Ibid., para. 511; Cassese (n 15) 119.
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97
Femicide: Genocide by another name?
a stable and permanent group and were identified as such by all.’123 Subsequent
ICTR and ICTY case law relied, even if not exclusively, on the permanency
requirement.124 A group of women and girls targeted in femicide has the inner
stability and cohesion ascribed to national, racial, or religious groups, although
the permanency requirement may need to be revisited as gender (like ethnicity)
is socially constructed and may change over time. Accordingly, women and
girls could constitute a social group, similar to the Tutsi social group.125 In
this vein, the Darfur Commission also recognized that social groups might be
protected from genocide.126
Apart from the examination of preparatory work, the ‘circumstances of
conclusion’127— i.e., the mind-set of the drafters—demonstrate why groups
based on gender should receive protection more than 60 years after the adop-
tion of the Genocide Convention.128 In 1948, the drafters of the Genocide
Convention were male, women not yet enfranchised at that time in many parts
of the world.129 The protection of groups based on gender had not yet occurred
in international law. In fact, women’s rights are still relatively new concepts
in international law: The Convention on the Elimination of Discrimination
Against Women was adopted in 1979, and the concepts of gender and recog-
nition of persecution based on gender (as a crime against humanity) were only
introduced in the Rome Statute in 1998.130 Some years after the adoption of the
Rome Statute, specialized regional human rights treaties entered into force: the
Maputo Protocol (2003), the Istanbul Convention (2011), and the Convention
of Belém do Pará (1994).131 This new landscape recognizing women’s rights
123 Akayesu (n 30) para. 702.
124 William Schabas, The International Criminal Court: A Commentary on the
Rome Statute, 2nd edition (Oxford University Press 2016) 129; Berster (n 16) 100;
Werle and Jessberger (n 92) 300.
125 See Akayesu (n 30) paras 516 and 701–702.
126 Report of the International Commission of Inquiry on Darfur to the United
Nations Secretary-General, Pursuant to Security Council Resolution 1564 (25 January
2005), para. 499.
127 Art. 32 VCLT.
128 Ibid.
129 See Matthew Lippmann, ‘The Drafting of the 1948 Convention on the Prevention
and Punishment of the Crime of Genocide’ (1985) 3(1) Boston University International
Law Journal 1–65; See also William Schabas, ‘Introductory Note, Convention on the
Prevention and Punishment of the Crime of Genocide’ United Nations Audiovisual
Library of International Law (July 2008), https:// legal .un .org/ avl/ ha/ cppcg/ cppcg .html.
130 Art. 7(g) Rome Statute. See Hagay-Frey (n 6) 131.
131 Council of Europe’s Convention on Preventing and Combating Violence against
Women and Domestic Violence (Istanbul Convention) (adopted 7 April 2011, entered
into force 1 August 2014); Inter-American Convention on the Prevention, Punishment
and Eradication of Violence Against Women (Belém do Pará Convention) (adopted 9
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98 Conceptualizing femicide as a human rights violation
makes the inclusion of a gendered group practical and necessary in the contem-
porary context. To the extent that the intent to destroy required by the genocide
definition can extend to a women’s group, it should therefore be protected
from the crime of genocide.
Alternatively, the customary law scope of the crime of genocide is arguably
broader than the treaty-based definition. Along these lines, in Vasiliauskas v.
Lithuania, the ECtHR indicated that the scope of the customary international
law (CIL) definition of genocide is expansive.132 The United Nations General
Assembly (UNGA) Resolution 96 lists ‘racial, religious, political and other
groups’ as protected under the genocide convention. In this vein, social groups,
such as women and girls’ groups, could (arguably) be protected under the
genocide definition as some domestic criminal laws protect other groups from
genocide.133 In order to adequately protect women and girls, the scope of the
protected groups could also be reinterpreted based on this broader perception
under CIL.
Gendercide
Even assuming that a gender group is protected analogously to racial, ethnic,
religious or national groups, such ostensibly equal protection from gendercide
would imperfectly represent the widespread violence women suffer in femi-
cide.134 Warren, who conceived the term gendercide in relation to sex-selective
killings of female infants, considers it a neutral term because ‘[t]here is a need
for such a sex-neutral term, since sexually discriminatory killing is just as
wrong when the victims happen to be male.’135 While generally valid, this state-
ment conflicts with the way Warren uses the term to relate to female-specific
forms of killings which she acknowledges to be rooted in historical inequality
and a social system which men have ruled for centuries.136 This asymmetric
injustice affecting women and girls is what the term ‘femicide’ intends to
capture. The term gendercide is susceptible to advancing and maintaining
a male-controlled structure of society which disregards and undervalues the
June 1994, entered into force 3 May 1995); Additional Protocol to African Charter on
Human and Peoples’ Rights (Maputo Protocol) (adopted 27 June 1981, entered into
force 21 October 1986) (1982) 21 ILM 58.
132 ECtHR, Vasiliauskas v. Lithuania, App No 35343/05 (20 October 2015), paras
171–175.
133 UNGA Resolution on Genocide; Uruguay, Amendment to the Criminal Code No
18026 (2006), http:// www .impo .com .uy/ bases/ leyes/ 18026 -2006 %20.
134 Warren (n 6) 12–19 and 22.
135 Ibid., 22.
136 Ibid., 22–23.
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99
Femicide: Genocide by another name?
systemic violence which has affected women for centuries. This is evidenced
in Jones’ misuse of the supposedly neutral term gendercide to re-center on and
reflect men’s experiences during genocidal violence, e.g., mass executions of
men and boys in Srebrenica.137 Jones argues that, because they are men and
boys, male members of the populations are killed disproportionately, thereby
equating gendercide with male-selective killings.138 This conceals women’s
experience of rape and subsequent death in Srebrenica, removing them
from the term’s protection. Jones’ framing of gendercide is a way to refocus
on men’s experience in genocide, potentially excluding women and other
groups.139 However, the specific harm men suffer in genocide which needs
scholarly attention, is sexual violence perpetrated to humiliate men and target
their sense of masculinity rather than their killing, which is already recognized
under the crime of genocide.140
Moreover, both Warren and Jones see killings as the paradigmatic form of
gendercide. Warren is primarily concerned with the killings of female foetuses
and new-born babies, and girls.141 Rape and sexual violence, often committed
against women, are neglected. From a feminist legal perspective, harm to
women must be clearly labelled to include the distinct human rights violations
against women which have been neglected in the language of international
law.142 The prefix fem~ in femicide is precise in identifying the victims of this
type of gender-based violence as women and girls.143 The identification of the
specific harm in femicide enables States to better understand and respond to
such violence.144
137 Jones (n 25) 8–9.
138 Ibid.
139 Ibid., 25–27.
140 Christine Chinkin, ‘Key Issues in Times of Armed Conflict’ in Andrew Clapham
and Paola Gaeta (eds), The Oxford Handbook of International Law in Armed Conflict
(Oxford University Press 2014) 696.
141 Warren (n 6) 24.
142 Jackie Jones, ‘The Importance of International Law and Institutions’ in Jackie
Jones and Rashida Manjoo (eds), The Legal Protection of Women from Violence
(Routledge 2018) 11; MacKinnon (n 52) 43; Messuti (n 7) 52.
143 Fregoso and Bejarano (n 61) 9.
144 See Jones (n 142) 11.
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100 Conceptualizing femicide as a human rights violation
A GROUP’S DESTRUCTION
Physical Destruction: Genocide
The physical destruction of an entire group must be intended (‘intent to
destroy’) by the perpetrator of the crime of genocide.145 The ICTR has inferred
intent to destroy from how a group is attacked—i.e., the words used to describe
the adverse group—e.g., the description of Tutsis as ‘cockroaches’ or ‘dirt.’146
Similarly, the means by which women and girls are attacked in genocide
reveals something about the objective in femicide. In Akayesu, the ICTR Trial
Chamber recognized that ‘acts of rape and sexual violence, […] reflected the
determination to make Tutsi women suffer […], the intent being to destroy the
Tutsi group while inflicting acute suffering on its members in the process.’147
Women were raped near mass graves where they would later be buried.
Peasants could ‘borrow’ captured women and rape them after promising to
kill them in return.148 As MacKinnon states regarding the conflict in the former
Yugoslavia, ‘first they rape them, then they kill them, and then sometimes rape
them again and cut off their breasts and tear out their wombs.’149 Therefore, the
rapes, with the intention to kill, included a misogynist aspect.150
The objective of genocide is ‘the destruction of essential foundations of the
life of [a] national group [],’ and the reduction of its number until the group is
annihilated.151 This destruction refers to the biological-physical extermination
and elimination of an entire group. This consequence must be intended by
the perpetrators but they need not be successful at destroying the group in its
entirety.152 It is sufficient that the perpetrator intends to partially destroy a pro-
tected group, whereby the destruction of a ‘substantial portion of the group’ is
required.153 A group is substantial enough when the destruction of a group has
significant consequences for humanity, such as those inspired by mass atroc-
ities perpetrated by the Nazi regime.154 The killings of 8,000 Bosnian Muslim
145 The required intent must relate to, on the one hand, the forms of genocide, and,
on the other hand, the consequences of genocide—i.e., the group’s destruction in whole
or in part. Cassese (n 15) 119 and 123–124.
146 See Gacumbitsi (n 31) para. 259.
147 Akayesu (n 30) para. 733.
148 Ibid., paras 498 and 733.
149 MacKinnon (n 52) 187.
150 See Kate Manne, Down Girl: The Logic of Misogyny (Oxford University Press
2017) 71. See Hagay-Frey (n 6) 135.
151 Lemkin (n 10) 79–80.
152 Ibid., 80; Berster (n 16) 80.
153 Krstic (n 30) para. 12. See Schabas (n 124) 144–148.
154 Berster (n 16) 100.
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101
Femicide: Genocide by another name?
men and boys by Bosnian Serb forces were sufficient to be considered a geno-
cide due to their impact on the strategically important location of Srebrenica.155
The perpetrators of genocide often attack women and girls in different ways
to achieve the physical destruction of a protected group. In Akayesu, the ICTR
Trial Chamber focused on the ethnic nature of rape and reasoned that rape
was an ethnic attack which aimed at destroying the Tutsi group since mostly
Tutsi women were raped. As such, the rapes of Tutsi women were ‘a step in
the process of destruction of the Tutsi group—destruction of the spirit, of the
will to live, and of life itself.’156 Gender-specific genocidal acts ‘specifically
target[ed] Tutsi women and specifically contribute[ed] to their destruction and
to the destruction of the Tutsi group as a whole.’157 Akayesu is often praised for
its recognition of ethnic rape as genocide, but it did not flesh out why women
were raped as part of the female social group. The ICTR barely addressed
women’s roles as ‘sexual objects’ despite some of the evidence to this effect:
‘Alexia, […] and her two nieces, were forced by the Interahamwe to undress
and ordered to run and do exercises “in order to display the thighs of Tutsi
women.” The Interahamwe who raped Alexia said, as he threw her on the
ground and got on top of her, “let us now see what the vagina of a Tutsi woman
tastes like.”’158 These experiences of women and girls reveal the cruelty and
unnecessary harm by which Tutsi women and girls were effectively degraded,
objectified, and terrorized. The ICTR failed to discuss harm inflicted on
women and girls in detail, likely because it viewed their ethnicity as the driving
factor behind it.
Social Destruction: Femicide
Contrary to the group’s physical destruction in genocide, the subordination of
women and girls in the patriarchal social order is the objective in femicide.159
The foot binding mutilation which is practiced in some countries, relegates
women and girls to the domestic and private sphere.160 FGM subordinates
women’s pleasure to that of men, serving to control their sexuality.161 Forced
155 Schabas (n 124) 128.
156 Akayesu (n 30) para. 731.
157 Ibid.
158 Ibid., para. 732.
159 See Messuti (n 7) 50–51; Mercedes Oliveira, ‘Violencia Feminicida: Violence
Against Women and Mexico’s Structural Crisis,’ in Rosa-Linda Fregoso and Cynthia
Bejarano (eds), Terrorizing Women, Feminicide in the Americas (Duke University
Press 2010) 51.
160 Dworkin (n 6) 95–148.
161 Deller Ross (n 21) 470.
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102 Conceptualizing femicide as a human rights violation
marriage of abducted schoolgirls in Nigeria not only deprived them of an
education, but it also made these girls socially and economically dependent on
their oppressors.162 These are serious acts of violence, yet they do not neces-
sarily reduce the number of women and girls. Rather, they relegate the female
social group to certain social spheres and degrade them.163 Of course, women
and girls are sometimes killed in femicide. However, these killings ensure the
continuance of the social order. For example, families may kill infants and girls
over dowry disputes and other costs in raising girls. Such killings are a sign of
the female social group’s inferior place in society.164 Destruction in femicide
can thus be understood in terms of women and girls’ social destruction.165 The
genocidal technique of ‘the transfer of children to another group’ could be seen
as such, as it destroys the children’s group’s culture and societal links.
Female social groups are not eliminated for two main reasons. First, men
(and mankind) still depend on women’s existence. As Dworkin argues,
‘[t]hat women have not been exterminated and will not be (at least until the
technology of creating life in the laboratory is perfected) can be attributed
to our presumed ability to bear children.’166 De Beauvoir further elaborates
that women and men form a reproductive unit, whereby destruction of either
one of the groups would be counterproductive to the continued existence
of humanity. For biological reasons, therefore, humanity is contingent on
women’s existence in order to thrive and to procreate.167 Second, since women
are scattered among different family units, they are unlikely to be all killed.168
A women’s group is hard to delineate as such a group would lack cohesion in
historic background––apart from their prevalent discrimination––religion, or
other common features––other than their sex/gender. Generally, women do not
form a minority, unlike other oppressed and persecuted groups such as African
Americans, Native Americans, and Jewish people.169
162 Of course, some nuances can be applied. Boko Haram does not allow women
and girls to farm land, as a result of which some women felt empowered, ‘only’ having
to perform work at home. Hilary Matfess, Women and the War on Boko Haram (Zed
Books 2017) 112–113.
163 Alex Alvarez, Genocidal Crimes (Routledge 2010) 26.
164 Warren (n 6) 24.
165 Martha Nussbaum, ‘Objectification’ (1995) 24(4) Philosophy and Public Affairs
249–291 at 257.
166 Dworkin (n 6) 93.
167 Simone De Beauvoir, The Second Sex (Vintage Books 2011) 8–9, 21 and 89.
168 Ibid., 8.
169 Ibid.
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103
Femicide: Genocide by another name?
CONCLUDING REMARKS
The current definition of genocide is inadequate to respond to femicide, since
the list of genocidal acts is limited with only national, ethnic, religious, and
racial groups being protected. Among the methods of addressing genocide, the
statutory language ‘serious bodily and mental harm’ covers sexual violence
and rape implicitly.170 As women and girls frequently suffer sexual slavery,
rape, and other slow-death measures, it is crucial that such acts are recognized
under the crime of genocide. The group dimension of genocide would serve to
assert that a female social group can be protected under femicide. By means of
feminist legal reasoning, the scope of the protected groups could be expanded,
even if this interpretation has its limits. The term gendercide reinforces men
and boys’ experiences, while inadequately covering women and girls’ groups
which would benefit from the more explicit notion of femicide.171 Finally, the
aspect of destruction in the crime of genocide is useful to conceptualize femi-
cide in human rights law. Contrary to the physical destruction envisioned in the
crime of genocide, in femicide, the destruction should be interpreted as social
destruction, i.e., as degradation, humiliation, or subordination. These attacks
against women and girls are committed not for purposes of exterminating
them, but rather to control and dominate the female social group. Overall, the
architecture of the crime of genocide, including the forms, aims, and its focus
on groups could be used to inspire a human rights concept of femicide.
170 Kimberly Carson, ‘Reconsidering the Theoretical Accuracy and Prosecutorial
Effectiveness of International Tribunals’ Ad Hoc Approaches to Conceptualizing
Crimes of Sexual Violence as War Crimes, Crimes Against Humanity, and Acts of
Genocide’ (2012) 39 Fordham Urban Law Journal 1249–1300 at 1293; De Brouwer (n
87) 204.
171 No aspect of this chapter should be construed to limit the inclusion of gender
groups to the protected groups in genocide.
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104
CONCLUSION TO PART I
The context in which femicide often occurs, is set out in Chapter 2, recogniz-
ing that wartime settings of rape and sexual violence have contributed to the
current peacetime occurrences of femicide in some States. Military leaders’
failure to halt rape or even encouragement to rape women in wartime, has
effects beyond that period. This connection in terms of the prevalence of
sexual violence sheds light on state responsibility through inaction for femi-
cide. This aspect is revisited in Chapter 10 to discuss States’ role in contribut-
ing to a situation where women and girls are attacked with impunity. Another
first step for conceptualizing femicide is the underlying understanding, which
is very pronounced in war, that sexual violence violates women and girls’ or
their male protectors’ honor. As such, international humanitarian law provides
the basis for prohibiting crimes of rape and sexual violence under international
law.
The crimes against humanity concept allows for the assertion of the ‘wide-
spread’ nature of femicide, while the ‘female social group’ characterization in
femicide draws on the crime of genocide. Furthermore, some sexual acts of
crimes against humanity recognized in the Rome Statute adequately cover acts
of femicide––namely rape, sexual slavery, and indirectly forced marriage (as
other inhumane acts). Of course, such acts of crimes against humanity must be
adequately defined to respond to harm in femicide. Based on its potential to
encompass many forms of rape, the broad Akayesu rape definition should be
adopted in femicide. The consideration of consent in acts of femicide should
be informed by the discussion in Kunarac, where coercive contexts render
consent impossible.
Finally, the aim of femicide is the social subordination of women and girls,
which is only inspired by the ‘destruction’ under the crime of genocide insofar
as it covers social destruction, such as ‘the transfer of children to another
group.’ Since women and girls are relegated to a subordinate social status in
femicide, the attack in crimes against humanity does not suitably address what
occurs in femicide. Constructed in line with the crime against humanity and
the crime of genocide, the human rights violation of femicide should include
gender-based acts of violence, a widespread context of violence, the aim of
subordinating women and girls, and a defined female social group at risk.
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105
PART II
FEMICIDE AND HUMAN RIGHTS LAW
Part II provides an overview of human rights bodies’ adjudication of
gender-based harm, relevant to femicide. In each chapter, I examine human
rights bodies’ cases holistically in the form of ‘case studies.’ This allows for
consideration of human rights bodies’ overall response to specific situations
of violence against women and reveals the relevant factual circumstances
of femicide that may be important for the legal analysis. Femicide involves
a compounded set of closely connected human rights violations (e.g., the pro-
hibition of torture, the right to life, and fair trial/access to justice rights) with
a gender-based component.
Part II contains Chapters 5–8, discussing regional human rights bodies
and the Convention on the Elimination of Discrimination Against Women
(CEDAW) Committee’s approach to femicide. Chapter 5 conveys a broad
understanding of the development of women’s rights at the United Nations
level, before delving into the specificities of CEDAW’s approach to violence
against women and girls. As evident from its name, the CEDAW Committee
uses discrimination as the primary lens to view domestic violence, rape, and
other acts of femicide. CEDAW is receptive to gender-based harm, but it
tackles such harm indirectly. Chapter 5 exemplifies this focus on discrimina-
tion through a few select cases.
Chapter 6 looks at European human rights instruments relevant to femi-
cide, the Istanbul Convention explicitly dealing with domestic violence. This
chapter lays out the fundamental principles of the Osman test for determining
state responsibility by inaction, which are applied by the Inter-American and
the African human rights bodies. However, the European Court of Human
Rights (ECtHR) is stagnant in its approach to recognizing rape committed by
non-state actors as torture or integrating a ‘gender perspective’ in investigating
crimes against women and girls. This may be due to the Court’s margin of
appreciation doctrine and its reluctance to incorporate other drastic changes, as
seen throughout its case law.
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106 Conceptualizing femicide as a human rights violation
Chapter 7 considers femicide in the context of Latin America, where the
term femicide is most strongly anchored. Accordingly, the Inter-American
system is sympathetic to identifying and recognizing gendered harm. While
it relies on the Osman test, it advances the ECtHR’s conservative approach
to rape by recognizing the commission of rape as torture irrespective of the
perpetrators’ private or public status. It also advances the idea that States
should use a ‘gender perspective’ in investigating crimes of violence against
women and girls, thereby combatting impunity with regard to femicide. The
Inter-American Court of Human Rights’ (IACtHR) evolutionary case law and
its in-depth discussion of gender-based violence warrant a closer analysis.
Finally, Chapter 8 addresses the African human rights system. Considering
that this regional human rights system is the newest, and least studied, the
developments of women’s rights in the African region are thoroughly investi-
gated. Case law on femicide by the African Commission is emerging but not
yet established. The African system’s collective view of human and people’s
rights is most relevant to address and understand the collectively targeted
social group in femicide. The African system’s laudable contribution to identi-
fying widespread risks, e.g., concerning marriage by abduction, is pertinent for
the discussion of state responsibility in Chapter 10.
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107
5. Femicide, the UN system and
CEDAW
That man over there says women need to be helped into carriages, and lifted over
ditches, and to have the best place everywhere. Nobody ever helps me into carriages,
or over mud-puddles, or gives me any best place! And ain’t I a woman? Look at
me! Look at my arm! I have ploughed, and planted, and gathered into barns, and no
man could head me! And ain’t I a woman? I could work as much and eat as much as
a man—where I could get it—and bear the lash as well! And ain’t I a woman? I have
borne thirteen children, and seen them most all sold off to slavery, and when I cried
out with my mother’s grief, none but Jesus heard me! And ain’t I a woman?
Sojourner Truth1
INTRODUCTION
International human rights law views women and girls through a male-centric
lens; it is more responsive to violence men experience than violations of
women’s human rights. Of course, women and girls who are mistreated, for-
cibly disappeared, and arbitrarily executed enjoy equal protection with men
and boys under human rights law.2 Still, harm against women and girls is often
different, extending beyond these ‘traditional’ human rights violations. For
example, women and girls are forcibly sterilized or sacrificed as a result of
dowry disputes.3 To the extent that such human rights violations are specific to,
and more frequently committed against women and girls—e.g., because they
are sexual or reproductive in nature—such human rights issues remain largely
unaddressed by international human rights law. An initial attempt to make
human rights law more responsive to women was made via non-discrimination
provisions. The international human rights law framework includes the right
1 Sojourner Truth in Angela Harris, ‘Race and Essentialism in Feminist Legal
Theory’ in Kelly Weisberg (ed), Feminist Legal Theory, Foundations (Pennsylvania
University Press 1993) 350.
2 Catharine MacKinnon, Are Women Human? And Other International Dialogues
(Harvard University Press 2007) 141–142.
3 Daniela Nadji, International Criminal Law and Sexual Violence Against Women:
The Interpretation of Gender in the Contemporary International Criminal Trial
(Routledge 2018) 35.
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108 Conceptualizing femicide as a human rights violation
to equality before the law, as well as other human rights relevant to women.4
Yet, non-discrimination clauses are a specific remedy that does not change the
overall male-centric nature of human rights law.5
This dichotomy between what women require and what they receive from
human rights law can be illuminated with the example of the Universal
Declaration of Human Rights (UDHR), a milestone in the history of human
rights.6 Former United States First Lady, Eleanor Roosevelt, spearheaded the
inclusion of a non-discrimination clause into the UDHR, a significant achieve-
ment at the time.7 She was however concerned that more specific women’s
rights violations were not ‘universal,’ and their inclusion would therefore
undermine the UDHR. As a result, human rights violations specific to women
are mostly absent from human rights instruments.8 Human rights instruments
appear to envision men as the bearer of human rights. Half of the provisions in
the UDHR use male pronouns.9 In relation to violence, some forms of sexual
torture and ‘domestic’ torture at the hands of one’s partner have historically
been overlooked.10 Relatedly, the Human Rights Committee’s 2018 General
Comment on the right to life focuses on the harm that typically affects men
(e.g., arbitrary killings and the death penalty), sporadically mentioning
maternal death and gender-based violence.11 Overall, these instruments fail
to include rights that ensure women are free from specific types of vio-
lence that are characteristic of human rights violations against women and
girls—e.g., dowry-deaths, slow-deaths, domestic violence, forced marriage,
sexual slavery, and rape. All these specific types of violence can constitute acts
of, or are inherent to, femicide. The absence of provisions relating to violence
against women and girls (VAWG), one of the most pervasive human rights
issues, is poignant.
4 E.g., Art. 2 UDHR.
5 Rashida Manjoo, ‘Normative Developments on Violence Against Women in
the United Nations System’ in Jackie Jones and Rashida Manjoo (eds), The Legal
Protection of Women from Violence (Routledge 2018) 73–106.
6 Nadji (n 3) 34.
7 Ibid.
8 Ibid.
9 Ibid.
10 MacKinnon (n 2) 17.
11 For an in-depth critique of the General Comment, see Fleur van Leeuwen, ‘Still
the second sex: Some feminist reflections on the new General Comment of the UN
Human Rights Committee on the right to life’ OxHRH Blog (13 May 2019), http://
ohrh .law .ox .ac .uk/ still -the -second -sex -some -feminist -reflections -on -the -new -general
-comment -of -the -un -human -rights -committee -on -the -right -to -life. All online sources
were accessed 30 October 2021.
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109
Femicide, the UN system and CEDAW
The first ‘feminist intervention’ in international law, the Convention on the
Elimination of Discrimination Against Women (CEDAW), remedies some of
these shortcomings.12 Directed by the United Nations (UN) Commission on the
Status of Women (CSW), the premier UN body charged with the promotion
of women’s rights, the instrumental work on gender equality began before the
adoption of CEDAW in 1979.13 In 1967, the CSW adopted the Declaration on
the Elimination of Discrimination Against Women (DEDAW), a non-binding
instrument that condemns early or child marriage, and calls on States to
address cultural and social patterns underlying discrimination.14 In the 1970s,
when women’s rights movements were at their heights of activity across the
globe, the CSW drafted CEDAW.15 Aside from propelling the elimination of
discrimination against women, CEDAW has its own Committee charged with
monitoring state compliance and allowing individuals to bring complaints.16
CEDAW marked the first international step toward recognizing women’s
rights to equal protection before the law. As is evident from its name, however,
CEDAW protected individuals from discrimination, only considering violence
indirectly. It was not until the 1990s that VAWG was recognized as a violation
of human rights.17
No universal treaty exists which exclusively deals with VAWG, let alone
femicide. However, soft law attempts to recognize VAWG as a human rights
issue have been created, such as the UN General Assembly (UNGA)’s reso-
lution on domestic violence in 1985,18 and the Declaration on the Elimination
of Violence against Women (DEVAW) in 1993, a programmatic instrument
explicitly addressing violence against women.19 The DEVAW acknowledged
12 Adrien Wing, ‘International Law and Feminism’ in Robin West and Cynthia
Bowman (eds), Research Handbook on Feminist Jurisprudence (Edward Elgar 2019)
468.
13 The Economic and Social Council established the CSW by Council resolu-
tion 11(II) of 21 June 1946, https:// www .un .org/ womenwatch/ daw/ csw/ pdf/ CSW
_founding _resolution _1946 .pdf. Rikki Holmaat, ‘The CEDAW: A Holistic Approach
to Women’s Equality and Freedom’ in Anne Hellum and Henriette Sinding Aasen
(eds), Women’s Human Rights: CEDAW in International, Regional, and National Law
(Cambridge University Press 2013) 95–123 and 104.
14 See Beth Simmons, Mobilizing for Human Rights: International Law in Domestic
Politics (Cambridge University Press 2009) 206.
15 Ibid., 206–207.
16 Ibid., 208.
17 Ibid., 207.
18 UNGA (29 November 1985) UN Doc A/RES/40/36.
19 Bejing Platform for Action, Hillary Rodham Clinton (Speech), ‘Remarks for the
United Nations Fourth World Conference on Women’ (5 September 1995), www .un
.org/ esa/ gopher -data/ conf/ fwcw/ conf/ gov/ 950905175653 .txt.
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110 Conceptualizing femicide as a human rights violation
VAWG across the board, and brought it into the international arena.20 The
DEVAW defines violence against women as ‘any act of gender-based violence
that results in, or is likely to result in, physical, sexual or psychological harm or
suffering to women, including threats of such acts, coercion or arbitrary depri-
vation of liberty, whether occurring in public or in private life.’21 It recognizes
a plethora of acts which can constitute femicide, such as ‘battering, sexual
abuse of female children in the household, dowry-related violence, marital
rape, female genital mutilation and other traditional practices harmful to
women, non-spousal violence and violence related to exploitation.’22 In 1993,
the CEDAW Committee issued General Recommendation No. 19, interpreting
CEDAW’s scope to include gender-based violence. In 1994, the UN Special
Rapporteur on Violence against Women, its Causes and Consequences was
appointed and mandated to submit annual reports on measures to eliminate
violence against women.23 As the climax in recognition of violence against
women as a human rights violation, the Fourth UN World Conferences’
1995 Beijing Declaration and Platform for Action set the agenda for States to
identify and eradicate gender-based violence against women.24 And yet, these
approaches are not legally binding and fail to address the issue of femicide.
Many UN Security Council resolutions on women’s rights concern women,
peace and security, as well as sexual violence in armed conflict.25 In April
2019, the UN Security Council adopted SC Resolution 2467 (2019) on
sexual violence in armed conflict.26 The UNGA also issued a resolution on
gender-related killings of women and girls, expressing concern about femi-
cide.27 The International Labor Organization (ILO)’s Violence and Harassment
Convention, 2019 (No. 190) on sexual harassment in the workplace is the first
binding treaty explicitly addressing violence against women, stating that har-
assment includes ‘a range of unacceptable behaviours and practices or threats
whether a single occurrence or repeated, that aim at, result in, or are likely
to result in physical, psychological, sexual or economic harm, and includes
20 Hilary Charlesworth and Christine Chinkin, The Boundaries of International
Law, a Feminist Analysis (Juris Publishing 2000) 235.
21 Art. 1 DEVAW.
22 Preamble and Art. 2 DEVAW.
23 OHCHR, Resolution XI.-E/CN.4/1994/132, (4 March 1994), paras 6–7.
24 United Nations, Beijing Declaration and Platform of Action, adopted at the
Fourth World Conference on Women, 27 October 1995.
25 UNSC Res 1325 (2000); UNSC 1820 (2010); UNSC 1960 (2010).
26 UNSC Res 1467 (23 April 2019) UN Doc S/RES/1467.
27 UNGA Res 68/119 (18 December 2013) UN Doc A/68/457 68/191.
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111
Femicide, the UN system and CEDAW
gender-based violence and harassment.’28 This Convention is limited to the
‘workplace’ sphere, constraining its application for femicide.29
CEDAW’S RESPONSE TO UNEQUAL SOCIETIES
Established in 1979, CEDAW is an international treaty designed to protect
women against discrimination by setting standards to enhance women’s
position in society and altering its discriminatory structures.30 The Convention
makes no mention of VAWG. When CEDAW was adopted, VAWG (particu-
larly domestic violence) was seen as a private issue—rape in marriage was
still permitted in many societies.31 At the time, no awareness existed that such
violence would merit attention in domestic law, let alone at the international
plane.32 In the 1990s, VAWG began to gain attention as a human rights issue.33
The CEDAW Committee is an independent expert committee and the sole UN
treaty body dealing specifically with human rights violations as they relate to
women. As it provides the most specific and, arguably, the most progressive
analysis concerning women’s rights, this chapter centers on the CEDAW
Committee’s articulation of gender-based violence.
CEDAW could be perceived as an answer to VAWG. The Convention
tackles violence against women by means of the discriminatory systemic struc-
28 Art. 1(b) ILO Convention concerning the Elimination of Violence and Harassment
in the World of Work (adopted 21 June 2019, not yet in force at the time of publishing
in 2021) ILO No 190 [Convention on Sexual Harassment].
29 Arts 2 and 3 ILO Convention on Sexual Harassment. Art. 2 stipulates that this
‘Convention protects workers and other persons in the world of work.’
30 Convention on the Elimination of All Forms of Discrimination against Women
(CEDAW) (opened for signatories 1 March 1980, entered into force 3 September 1981)
27 UST 1909, 1249 UNTS 14. See General Recommendation No 25 (1999) Art. 4(1)
on Temporary Special Measures and 4(9).
31 See Sarah Zearfoss, ‘Note, the Convention for the Elimination of All Forms
of Discrimination against Women: Radical, Reasonable, or Reactionary’ (1991) 12
Michigan Journal of International Law 903–942 at 908–909.
32 Rashida Manjoo, ‘Closing the Normative Gap in International Law on Violence
against Women: Developments, Initiatives and Possible Options’ in Jackie Jones and
Rashida Manjoo (eds), The Legal Protection of Women from Violence (Routledge 2018)
202; Andrew Byrnes and Eleanor Bath, ‘Violence Against Women, the Obligation of
Due Diligence, and the Optional Protocol to the Convention on the Elimination of All
Forms of Discrimination Against Women, Recent Developments’ (2008) 8(3) Human
Rights Law Review 517–533.
33 Simmons (n 14) 207.
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112 Conceptualizing femicide as a human rights violation
tures which facilitate and cause gender-based violence.34 Article 1 CEDAW
defines discrimination as:
any distinction, exclusion or restriction made on the basis of sex which has the
effect or purpose of impairing or nullifying the recognition, enjoyment or exercise
by women, irrespective of their marital status, on a basis of equality of men and
women, of human rights and fundamental freedoms in the political, economic,
social, cultural, civil or any other field.35
Article 1 CEDAW revolves around how women and girls are excluded and
disadvantaged in all spheres. Under CEDAW, non-discrimination principles
apply to the private sphere, where human rights law has usually failed to
be applied.36 At the heart of Article 1 CEDAW lies a promising substan-
tive approach to equality, which contemplates women’s distinctive position
without comparing similarly situated females and males.37
Substantive equality differs from a formal equality approach, which neces-
sitates an ‘objective and reasonable criteria,’ usually a male comparator, to
make a distinction, exclusion or restriction based on sex.38 Formal equality
compares individuals in similar situations, i.e., it draws parallels between the
experiences of women and men.39 A formal equality approach is not palatable
when women are specifically targeted, and no male comparators exist.40 For
example, dowry-related killings or female genital mutilation (FGM) cannot
easily be compared with men’s experiences of harm.41 As such, violence
against women does not call for gender-neutral responses. In this sense, Article
1 CEDAW is an urgent response to the persisting societal and legal inequal-
ity which characterizes many places around the world and obviously fuels
violence against women.42 As the CEDAW Committee states in its General
Recommendation No. 25, the ‘Convention focuses on discrimination against
34 See Arts 2 and 5 CEDAW.
35 Art. 1 CEDAW.
36 Nadji (n 3) 36.
37 Holmaat (n 13) 99.
38 Alice Edwards, Violence against Women under International Human Rights Law
(Cambridge University Press 2011) 142.
39 Ibid.
40 African Commission, Equality Now and Ethiopian Women Lawyers Association
v. Federal Republic of Ethiopia, Communication No 341/2007, 25 February 2016. See
also Holmaat (n 13) 102.
41 In particular with regard to a potential comparison with male circumcision,
note that FGM has no health benefits. See Kenya, Constitutional Court, Tatu Kamau v
Attorney General & 2 Others; Equality Now & 9 Others (Interested Parties); Katiba
Institute & Another (Amicus Curiae) [2021] eKLR (17 March 2021), para. 214.
42 Holmaat (n 13) 102.
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113
Femicide, the UN system and CEDAW
women, emphasizing that women have suffered, and continue to suffer from
various forms of discrimination because they are women.’43 In addressing this
inequality, CEDAW embodies three approaches to equality: formal equality;
substantive equality; and transformative equality.44
Under the formal equality approach, States must ensure equality between
men and women before the law, regardless of sex.45 Under Article 2(a)–(b)
CEDAW, States can achieve this by enacting relevant non-discrimination
principles in domestic laws.46 Under the substantive equality approach, States
must improve the de facto situation of women ‘through concrete and effective
policies and programmes’ (Articles 3–4 and 24 CEDAW).47 Transformative
equality, which has been interpreted in Articles 2(c) and (f), and 5(a) CEDAW,
requires States to change cultural and societal structures and gender stereo-
types which underlie and cause gender inequality.48 The latter requires States
to:
modify the social and cultural patterns of conduct of men and women, with a view to
achieving the elimination of prejudices and customary and all other practices which
are based on the idea of the inferiority or the superiority of either of the sexes or on
stereotyped roles for men and women.49
States must transform the traditional roles and patterns ascribed to women
and men in society, thereby eradicating structural discrimination.50 Article
2(f) CEDAW obliges States to eliminate the discriminatory laws, regulations,
customs, and practices on which societal and cultural structures rest. Taken
together, Articles 2(f) and 5(c) establish that gender stereotypes not only cause
discrimination but are discriminatory per se under Article 1 CEDAW.51
As a vehicle for cultural change, CEDAW is crucial in combatting VAWG.
As seen in femicide cases, state authorities often remain inactive when women
or their next of kin report human rights abuses against women. These wrongful
perceptions of women’s roles and lives in society, such as a presumption that
the victim must have dressed inappropriately or have relationship problems
to have brought about violence, stem from so-called ‘cultural’ paradigms and
43 CEDAW, General Recommendation No 25, para. 5.
44 Holmaat (n 13) 111.
45 Ibid., 106; Edwards (n 38) 158.
46 Holmaat (n 13) 111.
47 General Recommendation No 25, para. 7.
48 Holmaat (n 13) 111. See General Recommendation No 25, para. 10.
49 Art. 5 CEDAW.
50 Holmaat (n 13) 111.
51 Ibid., 109.
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114 Conceptualizing femicide as a human rights violation
may lead to national authorities’ failure to investigate crimes against women
and girls.52
FEMICIDE AS DISCRIMINATION
CEDAW does not explicitly recognize femicide as a human rights violation.
This deficiency has only been partially remedied by the Committee’s interpre-
tative attempt to include violence in the Convention. The CEDAW Committee
introduced VAWG in CEDAW through its General Recommendation No. 19
(1992), supplemented by General Recommendation No. 35 (2017).53 General
Recommendation No. 19 established a correlation between discrimination and
gender-based violence: ‘the definition of discrimination includes gender-based
violence, that is, violence that is directed against a woman because she is
a woman or that affects women disproportionately.’54 This approach poten-
tially places the discrimination law framework beyond its agreed bounds,
and it may fail to recognize the gravity of gender-based violence as a human
rights violation.55 It is noteworthy that some forms of violence are mentioned
in Article 6 CEDAW, namely human trafficking, exploitation and prostitution
of women.56 Forced marriage is also implicitly mentioned as CEDAW speaks
of equal rights in contracting marriage and making reproductive choices.57
However, sexual slavery and enforced prostitution are not identified as forms
of VAWG.58 In an attempt to fill this normative gap relating to violence against
women, the CEDAW Committee read VAWG into the Convention.
This definition of gender-based violence has shaped regional human rights
bodies’ case law, which adopted the definition verbatim.59 Under the purview
52 See Rosa-Linda Fregoso and Cynthia Bejarano, ‘Introduction: A Cartography
of Femicide in the Americas’ in Rosa-Linda Fregoso and Cynthia Bejarano (eds),
Terrorizing Women, Feminicide in the Americas (Duke University Press 2010);
González et al. v. Mexico (Cotton Field Case), Preliminary Objection, Merits,
Reparations, and Costs, Inter American Court of Human Rights Series C No 205 (16
November 2009), paras 158–159 and 400–401.
53 General Recommendation No 19: Violence Against Women, CEDAW/A/47/38
at 1 (1993); General Recommendation No 35: General Recommendation No 35 on
Gender-based Violence Against Women, updating General Recommendation No 19,
CEDAW/C/GC/35 (2017).
54 General Recommendation No 19, para. 6.
55 See Manjoo (n 5) 87.
56 Ibid.
57 Art. 16 CEDAW.
58 See Charlesworth and Chinkin (n 20) 236–237.
59 E.g., European Court of Human Rights (ECtHR), Opuz v Turkey, App No
33401/02 (9 March 2009), paras 185–187; Maria da Penha v. Brazil (16 April 2001)
Inter-American Commission Case 12.051, Report No 54/01, paras 47 and 50.
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Femicide, the UN system and CEDAW
of discrimination, General Recommendation No. 19 broadly acknowledges
that gender-based violence violates myriad rights, including the right to life;
the right not to be subject to torture or to cruel, inhuman or degrading treatment
or punishment; the right to liberty and security of the person; the right to equal-
ity in the family and equal protection under the law; the right to the highest
standard attainable of physical and mental health; the right to just and favora-
ble conditions of work.60 More specifically, General Recommendation No. 19
lists ‘family violence and abuse, forced marriage, dowry deaths, acid attacks
and female circumcision,’61 ‘compulsory sterilization and abortion,’62 and ‘bat-
tering, rape and other forms of sexual assault’63 as forms of violence against
women. In addition to the apparent physical harm, General Recommendation
No. 19 also considers mental harm and the mere threat of harm to be sufficient
to amount to gender-based violence.
In 2017, the CEDAW Committee issued General Recommendation No. 35
supplementing General Recommendation No. 19.64 Conceptually, General
Recommendation No. 35 does not break any new ground.65 Through the
lens of discrimination, it sees violence as ‘a critical obstacle to achieving
substantive equality between women and men.’66 It makes explicit the struc-
tural extent to which women are subjected to some forms of violence, as
it identifies ‘gender-based violence against women’ instead of the general
‘violence against women’ used in General Recommendation No. 19.67 In this
vein, General Recommendation No. 35 considers gender-based violence a
‘social, rather than an individual problem’ entrenched in societal norms which
‘assert male control or power, enforce gender roles, or prevent, discourage
or punish what is considered to be unacceptable female behaviour.’68 The
CEDAW Committee considers that the prohibition of gender-based violence
rests on solid state practice and opinio juris, thereby constituting CIL––a claim
which may arguably be rejected due to lack of state practice.69 The General
Recommendation No. 35 only mentions femicide in the context of data collec-
tion, limiting the complex phenomenon to ‘gender-based killings of women’.70
60 General Recommendation No 19, para. 7. See also Manjoo (n 5) 88.
61 General Recommendation No 19, para. 11
62 Ibid., para. 22.
63 Ibid., para. 23.
64 ‘General Recommendation No 35 should be read in conjunction with General
Recommendation No 19’. General Recommendation No 35, para. 8.
65 General Recommendation No 19, paras. 1 and 21.
66 General Recommendation No 35, para. 10.
67 Ibid., para. 9.
68 Ibid., para. 19.
69 Ibid., paras 2 and 7.
70 General Recommendation No. 35, para. 34(b).
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116 Conceptualizing femicide as a human rights violation
CEDAW’s General Recommendations are the best approach to VAWG on
the international plane to date and their capacity to provide some response to
femicide must be acknowledged as such. General Recommendation No. 35
recognizes the interplay between many human rights violations in femicide.71
It finds that ‘women’s right to a life free from gender-based violence’ and
that gender-based violence ‘is indivisible from and interdependent with other
human rights, including the right to life, health, liberty and security of the
person, the right to equality and equal protection within the family, freedom
from torture, cruel, inhumane or degrading treatment, freedom of expression,
movement, participation, assembly and association.’72 The Committee also
pointedly responds to Chinkin’s critique on torture, noting that the required
purpose under the prohibition of torture can be discrimination and that
human rights treaty bodies should be sensitive to gender implications when
determining whether VAWG constitutes torture.73 Besides that, General
Recommendation No. 35 progressively recognizes that forced abortion, ster-
ilization, and even criminalization of abortion can violate the right to be free
from torture.74
At the same time, the CEDAW framework’s response to violence must
be criticized for its lack of recognition of acts of femicide as serious human
rights issues. For example, rape and battery are listed as discrimination in the
CEDAW Committee’s General Recommendation No. 19, whereas rape has
been recognized as a crime against humanity and a war crime in international
criminal law.75 Manjoo considers that the CEDAW Committee uses ‘jurisdic-
tional gymnastics’ to address VAWG, ‘[it] has to ask questions such as: Is
violence against women discrimination? Is the violence due to stereotyping? Is
it due to family relations?’76 Edwards has similarly stated that ‘[this] interpre-
tation [of violence into a discrimination framework] is at best a corrective and
indirect mechanism to fix the errors of the original human rights framework.’77
Evidently, it is necessary to identify underlying stereotypes, e.g., when the
victim’s next of kin is treated poorly by the police. Moreover, discrimination
71 Manjoo (n 5) 88.
72 General Recommendation No 35, para. 17.
73 Ibid.
74 Ibid., para. 19.
75 Arts 7(1)(g) (rape as a crime against humanity), 8(b)(xxii) (rape as a war
crime), and 6(b) (genocide) listing ‘serious bodily and mental harm’, Statute of the
International Criminal Court (Rome Statute) (adopted 17 July 1998, entered into force
1 July 2002) 2187 UNTS 38544.
76 Daniela Nadji, ‘“Bridging the Divide:” An Interview with Professor Rashida
Manjoo, UN Special Rapporteur on Violence Against Women’ (2015) 23 Feminist
Legal Studies 329–347 at 343.
77 Edwards (n 38) 338.
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117
Femicide, the UN system and CEDAW
fuels the widespread nature of violence in femicide and vice-versa.78 However,
the severity of physical and mental harm in femicide is likely concealed by
an exclusive focus on discrimination, and CEDAW only presents a circuitous
answer to femicide.79
CEDAW’S PREVENTIVE OBLIGATIONS
CEDAW’s achievement lies in its recognition of state responsibility for acts
committed by non-state actors, such as rape, forced marriage and other acts
of femicide, in the treaty text itself. First and foremost, Article 2 CEDAW
requires States to take a clear stand on discrimination against women and
communicate their opposition to discrimination to the international commu-
nity.80 General Recommendation No. 28 further establishes that the obligation
to oppose discrimination is ‘an immediate and continuous [one],’ and implies
the necessity of training State organs to recognize and deal with discrimina-
tion.81 Secondly, Article 2 CEDAW stipulates that States must pursue a policy
of eliminating discrimination against women.82 Although States can design
their own policy, the measures taken must be suitable to end discrimination,
and must be ‘action- and result-oriented.’83 As such, the policy must include
‘benchmarks and timelines, [and] ensure adequate resourcing for all relevant
actors.’84 Another advancement for non-state actor responsibility is that the
policy cannot be circumvented by references to limited resources.85 CEDAW
could thus help further women’s rights as a priority on policy agendas and bind
States which are unwilling to prioritize women’s equality.86
A paradigm shift is also suggested under CEDAW, which recognizes that
preventive duties are as essential as States’ traditional negative obligations.87
Article 2 CEDAW lists positive obligations;88 General Recommendation No.
28 specifies that States should ‘react actively against discrimination against
women, regardless of whether such acts or omissions are perpetrated by the
78 Manjoo (n 5) 85.
79 Nadji (n 76) 343.
80 General Recommendation No 28, para. 15.
81 Ibid., paras 15 and 18.
82 Art. 2(1) CEDAW.
83 General Recommendation No 28, para. 28.
84 Ibid.
85 Ibid., para. 29.
86 See ibid.
87 See Celina Romany, ‘Women as Aliens: A Feminist Critique of the Public/
Private Distinction in International Human Rights Law’ (1993) 6 Harvard Human
Rights Journal 87–125 at 98.
88 General Recommendation No 35, para. 22.
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118 Conceptualizing femicide as a human rights violation
State or by private actors.’89 Therefore, States must prevent acts of non-state
actors by acting with due diligence.90
The test to consider at which stage States’ responsibility is engaged,
is a slightly adapted version of Osman v. UK, originally adopted by the
European Court of Human Rights.91 Under the CEDAW Committee’s General
Recommendation, States’ responsibility is engaged when they:
know or should know of the danger of violence, or a failure to take all appropriate
measures to prevent acts of gender-based violence against women, or a failure to
investigate, prosecute and punish, and to provide reparation to victims/survivors
of such acts, provides tacit permission or encouragement to acts of gender-based
violence against women.92
Accordingly, States must act with due diligence: not only prevent violations of
rights but also investigate and punish acts of violence, and provide redress.93
These preventive duties provide the basis for discussing whether States have
undertaken the necessary measures to comply with their obligations to prevent
femicide.
SELECT CEDAW CASES
CEDAW has its own Committee charged with monitoring State compliance
which allows individuals to bring complaints about alleged Convention
violations.94 The legal nature of such observations has been extensively debat-
ed:95 I consider that the CEDAW Committee’s views (termed ‘Concluding
Observations’) should be considered compelling in setting standards for States
89 Art. 2(e) CEDAW; General Recommendation No 28, para. 10.
90 General Recommendation No 35, para. 24(a).
91 ECtHR, Osman v. UK, App No 23452/94 (28 October 1998), para. 116.
92 General Recommendation No 35, para. 24(b); General Recommendation No 19,
para. 9. See also General Recommendation No 28, para. 19.
93 General Recommendation No 35, para. 24(b).
94 Art. 10 CEDAW Optional Protocol; Arts 2 and 7 Optional Protocol.
95 O’Flaherty and Mechlem argue that ‘Concluding Observations’ are only obser-
vations, thereby lacking legal value, as they emerge from a dialogue between the State
and the Committee. Conversely, Buergenthal convincingly describes Concluding
Observations ‘as a type of Committee “jurisprudence”’ which is the result of a formal
and careful procedure’. Thomas Buergenthal, ‘The UN Human Rights Committee’
(2001) 5 Max Planck Yearbook of United Nations Law 341–398. Michael O’Flaherty,
‘The Concluding Observations of United Nations Human Rights Treaty Bodies’ (2006)
6 Human Rights Law Review 27–52 at 27 and 33; Kerstin Mechlem, ‘Treaty Bodies
and the Interpretation of Human Rights’ (2009) 42 Vanderbilt Journal of Transnational
Law 905–947 at 923.
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Femicide, the UN system and CEDAW
and non-governmental organization (NGO)’s to implement human rights.96
In Angela Gonzalez Carreño, a domestic violence case, the Spanish Supreme
Court clarified that the Committee’s views are binding on Spain.97
A snapshot of the CEDAW Committee’s approach to domestic and sexual
violence brings to light the relevant factual circumstances of femicide and its
legal response.98 This analysis reveals that the right to life, the prohibition of
torture and access to justice issues are often at stake in femicide. Furthermore,
some characteristics of femicide, such as the continuous nature of gender-based
acts and state responsibility, are further clarified.
Goekce et al. v. Austria (2007)
For several years, Ms Şahide Goekce, of Turkish descent, had been abused
by her husband who repeatedly threatened to kill her, sometimes in front of
their children. After her husband tried to strangle her in 1999, she reported his
violent acts to the police.99 The police requested that her abusive husband be
detained on two occasions. However, since Ms Goekce did not file charges
against her husband for death threats against her, as required under Austrian
law, the authorities did not charge or arrest him.100 A court issued an injunction
against her husband to ban him from their shared home. He continued to live
there in violation of the order.101 Ms Goekce’s father and brother informed the
police that Ms Goekce’s husband owned a handgun and continued to threaten
her. The police still failed to investigate their claims adequately.102 The perpe-
trator once again attacked his wife. She called the police but they never arrived.
Hours later, he killed his wife in the presence of their two daughters.103
The CEDAW Committee found Austria responsible for failing to protect
Ms Goekce and ordered measures to implement the domestic violence law as
well as policy measures.104 The Committee recommended Austria ‘[v]igilantly
96 Manjoo (n 5) 87.
97 Spanish Supreme Court (Sala de lo Contencioso-Administrativo Sección Cuarta
Sentencia) No 1263/2018 (17 July 2018).
98 See Marie Ashe, ‘Zig-Zag Stitching and the Seamless Web: Thoughts on
“Reproduction” and the Law’ in Kelly Weisberg (ed), Feminist Legal Theory,
Foundations (Pennsylvania University Press 1993) 582–593; Katharine Bartlett,
‘Feminist Legal Methods’ (1990) 104(4) Harvard Law Review 828–888 at 864.
99 Goekce et al. v. Austria, Communication No 25/2005, CEDAW/C/39/D/5/2005,
6 August 2007, paras 2.1–2.3.
100 Ibid., para. 2.3.
101 Ibid., paras 2.7–2.8.
102 Ibid., para. 2.9.
103 Ibid., paras 2.9–2.11.
104 Ibid., para. 12.3.
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120 Conceptualizing femicide as a human rights violation
and in a speedy manner prosecute perpetrators of domestic violence in order
to convey to offenders and the public that society condemns domestic vio-
lence.’105 The Committee also recommended that Austria train its state agents,
including the police, prosecutors, and judges, thereby centering on societal
impact of VAWG.106 In General Recommendation No. 19, the Committee
considered domestic violence as gender-based under the purview of Article
1 CEDAW. Accordingly, the Committee noted that States’ responsibility is
engaged for acts committed by private individuals should States fail to prevent
violations of non-discrimination provisions.107 It was not enough that Austria
had adopted comprehensive measures, including domestic violence legisla-
tion, policy efforts, and victim support.108 An additional obligation had arisen
for Austria to implement this framework, regardless of Ms Goekce’s attempts
to modify her complaint or refusal to authorize the perpetrator’s arrest.109
Applying the Osman test, as included in General Recommendation No.
35,110 the Committee recognized that the State knew of the violence against
Ms Goekce, especially because she had called the police hours before her
death.111 Moreover, the State had known of the perpetrator’s violent behavior
towards her for several years, and that he owned a gun, so the State should
have issued an arrest warrant much earlier.112 Having knowledge of the risk to
which Ms Goekce was exposed, state authorities should have swiftly come to
her rescue.113 By failing to protect Ms Goekce’s life and physical and mental
integrity, Austria violated its responsibility under CEDAW in conjunction
with General Recommendation No. 19.114
Vertido v. The Philippines (2010)
Ms Karen Vertido’s boss offered to drive her home after a late work meeting.
He proceeded to sexually assault Ms Vertido in the car, and subsequently
drove her to a motel where he raped her. He told Ms Vertido ‘that he knew
many people who could help her advance in her career’ and that ‘he would take
105 Ibid., para. 12.3.b.
106 Ibid., para. 12.3.
107 Ibid., para. 12.1.1.
108 Ibid., para. 12.1.2.
109 Ibid.
110 General Recommendation No 35, para. 24(b).
111 Goekce et al. v. Austria (n 99) para. 9.10.
112 Ibid., para. 12.1.4.
113 Ibid.
114 Ibid., para. 12.3.
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Femicide, the UN system and CEDAW
care of her.’115 Afterwards, she ran to his car to try to escape. Her boss told her
to ‘calm down’ and drove her home.116 The next day, she obtained a medical
certificate attesting to her rape and filed a complaint with the domestic author-
ities.117 However, her case was dismissed on the grounds that her claims were
not credible.118
The CEDAW Committee held the Philippines responsible for failing to
protect Ms Vertido from rape. It instructed the State to reform its rape law.
According to the Committee, the Philippines should place lack of consent at
the center of its rape definition and either (1) define rape in terms of the vic-
tim’s agency, even requiring the perpetrator prove that the victim consented, or
(2) require that the act of rape take place in broadly defined ‘coercive circum-
stances.’119 The latter of the two definitions is particularly relevant in the light
of the coercive circumstances characterizing femicide, and in line with the
discussion on rape in international criminal law. The Committee further held
that the Philippines had relied on rape myths in acquitting the perpetrator by
relying on discriminatory customs and practices.120 According to the (female)
domestic judge, Ms Vertido should have called for help and physically
resisted. The judge relied on the Philippines’ criminal code requiring force
or use of force as an element of rape, and also on a guideline stating that ‘an
accusation for rape can be made with facility,’ which ‘reveals in itself a gender
bias.’ Other guidelines, which did not regard physical force as an element of
rape, were ignored.121
The Committee was concerned about the domestic court’s gender stereo-
typing which could affect rape victims’ fair trial rights,122 stressing that ‘the
judiciary must take caution not to create inflexible standards of what women or
girls should be or what they should have done when confronted with a situation
of rape.’123 In this regard, similar to Goekce, the Committee required that state
officials be trained to deal with rape cases ‘in a gender-sensitive manner.’124
Unequivocally rejecting rape definitions which require physical resistance,
the Committee held that consent cannot derive from lack of resistance, and
that the Philippines had failed to eliminate harmful cultural practices and
115 Vertido v. the Philippines, Communication No 18/2008, CEDAW/
C/46/D/18/2008, 16 July 2010, para. 2.2.
116 Ibid.
117 Ibid., paras 2.3–2.4.
118 Ibid., paras 2.8–2.9.
119 Ibid., para. 8.9.
120 Ibid.
121 Ibid., para. 8.5.
122 Ibid., para. 8.4.
123 Ibid.
124 Ibid., paras 8.4 and 8.9.
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122 Conceptualizing femicide as a human rights violation
legislation contrary to Articles 2(f) and 5(a) CEDAW.125 The Committee’s
decision rightly clarified that non-consent must be at the center of any rape
definition. At the same time, it did not consider the unequal relations between
Ms Vertido and the alleged perpetrator, her employer, within its discussion on
non-consent. The Committee could have elaborated on the coercive circum-
stances, and how these may have influenced the ways in which she resisted her
boss’s advances, in line with Kunarac.
Angela Gonzalez Carreño v. Spain (2015)
Angela Gonzalez Carreño was threatened with a knife by her husband. She
left him after several years of abuse.126 Her ex-husband was granted visitation
rights to see his three-year-old daughter Andrea. Having witnessed episodes
of domestic violence, Andrea was frightened of her father and refused to see
him.127 Ms Gonzalez Carreño and her daughter were repeatedly threatened by
her ex-husband. Once, he tried to pull Andrea away in the presence of police
officers. In response to his threats and harassment, Ms Gonzalez Carreño filed
over 30 complaints against her ex-husband and sought protection orders to
no avail.128 During one of his visits, Ms Gonzalez Carreño’s ex-husband shot
Andrea, and then committed suicide. The Spanish authorities closed the case,
considering his criminal liability exhausted.129 Ms Gonzalez Carreño filed an
unsuccessful complaint with Spanish domestic courts about Spain’s failure to
protect her daughter’s life.130
The CEDAW Committee held that Andrea’s murder was gender-based.131
Furthermore, the Committee outlined the State’s obligation to prevent violence
against women under Article 2(e) CEDAW, which stipulates that States should
‘take all appropriate measures to eliminate discrimination against women by
any person, organization or enterprise.’132 The Committee held Spain responsi-
ble for failing to protect Andrea’s life and issued several comprehensive meas-
ures, including on mandatory training for those involved in the administration
of justice. It ordered Spain to ensure that decisions about visitation rights and
125 Ibid.
126 Angela Gonzalez Carreño v. Spain, Communication No 47/2012, CEDAW/
C/58/D/47/2012, 16 July 2014, para. 2.2.
127 Ibid., para. 2.4.
128 Ibid., paras 2.7–2.8.
129 Ibid., para. 2.17.
130 Ibid., paras 2.18–2.19.
131 Ibid., para. 9.6.
132 Ibid.
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Femicide, the UN system and CEDAW
custody consider whether a partner had a history of violence against the other
partner.133
Applying the Osman test, the Committee held that Spain had failed to
act with due diligence when Andrea’s life was at risk, thereby engaging its
international responsibility by omission. Spain had argued that it could not
have foreseen the lethal attack on Andrea, since no prior suspicion of risk had
existed, a typical and unfortunate state defense in domestic violence cases.
The CEDAW Committee answered that Andrea was killed in a ‘context of
domestic violence which continued for several years,’ thereby recognizing
the continuous nature of domestic violence.134 Spain knew of the violence and
threat,135 as it was aware of psychological reports attesting to the perpetrator’s
‘obsessive-compulsive disorder with aspects of pathological jealousy and
a tendency to distort reality.’136 Moreover, Spanish courts had prioritized the
father’s visiting rights over Andrea and Ms Gonzalez Carreño’s safety by
allowing unsupervised visits.137 The Committee pertinently concluded that
these elements ‘reflect[ed] a pattern of action which responds to a stereotyped
conception of visiting rights based on formal equality.’138 The Committee’s
recognition of ongoing risks meeting the ‘immediacy’ standard to engage
state responsibility in the Osman test is ground-breaking for the protection
of women and girls from femicide, where States are aware of serious and
widespread human rights violations against women even without a recent
complaint.139
O.G. v. Russia (2017)
O.G. had terminated her relationship with her ex-partner owing to his drug
abuse, gambling problems, and insults against her.140 She started to date
another man with whom she decided to cohabit. Her ex-partner immediately
started harassing her by sending her offensive text messages, staking out her
apartment, and demanding that she let him inside.141 On one occasion, he
133 Ibid., para. 11.
134 Ibid., para. 9.2.
135 Ibid.
136 Ibid., para. 9.3.
137 Ibid.
138 Ibid., para. 9.4.
139 Ibid., para. 9.7; Gema Fernández Rodríguez de Liévana, ‘CEDAW issues
a Historic Ruling in a Gender Violence Case’ OxHRH Blog (28 August 2014), https://
ohrh .law .ox .ac .uk/ cedaw -issues -a -historic -ruling -in -a -gender -violence -case/ .
140 O.G. v. Russia, Communication No 91/2015, CEDAW/C/68/D/91/2015, 20
November 2017, para. 2.1.
141 Ibid.
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124 Conceptualizing femicide as a human rights violation
hit her in the face in front of her son.142 O.G. filed a complaint against her
ex-partner. The court issued a suspended sentence against him. He continued
to harass her, issuing death threats against her and her partner.143 When O.G.
complained again, the police did not initiate proceedings because he had issued
threats but, ‘because he was not backing up his threats with action, [her] life
was not in danger.’144 Over a period of three years, O.G. filed seven unsuccess-
ful complaints with the Russian police.145
The CEDAW Committee held that Russia had failed to protect her from
violence.146 An important aspect is that any violence which arose from
a relationship, is considered domestic violence, as the Committee confirmed
by reference to Article 3(b) Convention on Preventing and Combating
Violence against Women and Domestic Violence (Istanbul Convention).147
The Committee found that the state authorities stereotyped against O.G.
by failing to investigate the death threats, which in turn impeded her fair
trial rights.148 The Committee held that ‘by failing to investigate [her] com-
plaint about death threats and threats of violence promptly, adequately and
effectively, and by failing to address her case in a gender-sensitive manner,
the authorities allowed their reasoning to be influenced by stereotypes.’149
However, the Committee did not delve into the reasons why it mattered that
the authorities stereotyped against her. In order to create clarity, the Committee
ought to have explained that the state inaction was a sign that the authorities
considered violence and death threats against women a trivial matter which did
not merit investigation.
Finally, the Committee scolded Russia for failing to define domestic vio-
lence in its domestic laws, and decriminalizing battery, an offense which had
been used to bring domestic violence cases before Russian courts.150 O.G.’s
right to access of justice was violated due to the lack of effective legislation
preventing domestic violence,151 in addition to Russia’s failure to prevent
violence and threats against her despite knowledge of the events.152 The
Committee recommended that the State adopt legislation on violence against
women and ratify the Istanbul Convention. On a policy level, the Committee
142 Ibid., para. 2.2.
143 Ibid., para. 2.3.
144 Ibid., paras 2.4–2.5 and 2.8.
145 Ibid.
146 Ibid., para. 7.3.
147 Ibid., para. 7.4.
148 Ibid., para. 7.5.
149 Ibid., para. 7.6.
150 Ibid., para. 7.7.
151 Ibid.
152 Ibid., paras 7.8–7.9.
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Femicide, the UN system and CEDAW
recommended that Russia train its state officials to adopt relevant protocols for
gender-sensitive responses to domestic violence cases.153
CONCLUDING REMARKS
The journey towards recognition of femicide is arduous since women’s rights
were historically seen as private or beyond state responsibility. And yet,
gender-based violence is one of the most pervasive human rights violations.154
The UN has highlighted gender-based violence as a key issue to be addressed
in its 2030 development goals; many soft law declarations, such as DEVAW,
advance tangible standards on gender-based violence.155 Following the 1995
Beijing Platform for Action, the contemporary narrative now considers
gender-based violence as a human rights issue. Nevertheless, these soft law
instruments are not binding and accordingly, there is a lack of enforceable
norms relevant to femicide at the international level.
Against this backdrop, CEDAW attempts to rectify the absence of a global
treaty on VAWG. However, the Convention’s focus is on eliminating dis-
crimination, rarely addressing violence and, if so, only in indirect terms.156
Generally, the Committee tackles acts of femicide—i.e., rape and domestic
violence—under Article 1 CEDAW, with a subsequent finding that such
violence is gender-based under General Recommendations Nos. 19 and 35.157
Such an indirect approach is inadequate to address femicide on three counts.
First, the discrimination principle is not suitable as it does not recognize the
dangerous nature of femicide. Of course, discrimination is part of femicide but
other human rights violations, such as domestic violence and rape, should be
foregrounded—just like violence against men and boys is not chiefly framed as
discrimination. Second, discrimination norms lack specificity to hold perpetra-
tors accountable. As many as possible human rights violations which are inher-
ent in femicide, should be specifically named, rather than disguised under the
umbrella of broad discrimination principles. Third, General Recommendations
on gender-based violence stretch CEDAW to include violence provisions
which States may object to since they did not ratify these recommendations.
153 Ibid., para. 9.
154 Rashida Manjoo, ‘State Responsibility to Act with Due Diligence in the
Elimination of Violence Against Women’ (2013) 2(2) International Human Rights Law
Review 240–265 at 253.
155 See UN Sustainable Development Goals, ‘#Envision2030 Goal 5: Gender
Equality’, www .un .org/ development/ desa/ disabilities/ envision2030 -goal5 .html.
156 See Arts 6 and 16 CEDAW; Nadji (n 76).
157 Goekce et al. v. Austria (n 99) para. 12.1.1; Gonzalez Carreño v. Spain (n 126)
para. 9.6; O.G. v. Russia (n 140) para. 7.3.
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126 Conceptualizing femicide as a human rights violation
For now, the CEDAW provides the only global means to address violence
in international human rights law.158 Ideally, a treaty on VAWG or femicide
could be drafted to respond to these issues.
CEDAW’s most notable contribution with regard to femicide is its recogni-
tion, enshrined in the treaty text, that state responsibility extends to the private
sphere. Of particular relevance is Article 2 CEDAW, which instructs States
to take swift action in law and policy to comply with their duty to prevent
discrimination against women. The Committee has combined Articles 2(f)
and 5(a) CEDAW to attempt to change underlying discriminatory cultures.159
Moreover, the CEDAW Committee has laudably recognized that recurring
human rights risks against women and girls can be covered under the Osman
test, which engages state responsibility for their failure to protect women
and girls from violence, and is crucial to determine state responsibility for
femicide.160
158 Manjoo (n 32) 87.
159 Vertido v. the Philippines (n 115) para. 8.9.
160 Gonzalez Carreño v. Spain (n 126) para. 9.2.
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127
6. Femicide and the European human
rights system
INTRODUCTION
Established in 1953, the European Convention on Human Rights (ECHR)
is a regional human rights treaty with a focus on civil and political rights
and freedoms.1 The European Court of Human Rights (ECtHR), created
by the Council of Europe (CoE) in 1959, oversees the protection of human
rights in Europe and enforces the ECHR.2 Complaints based on violations of
rights enshrined in the ECHR can be brought by individuals against States
and by States against other States; the highest domestic courts can request
non-binding advisory opinions from the ECtHR.3 The most prevalent gendered
harm in the ECtHR’s case law is domestic violence; domestic violence charac-
terizes European femicides.4 Domestic violence is qualified as a human rights
issue in the Istanbul Convention, the CoE’s regional human rights treaty on
violence against women. Many sexual violence and rape cases have also been
brought before the ECtHR. They are noticeably treated differently depending
on whether the victim was raped in police custody or in private.
A case-by-case analysis on the ECtHR’s approach to domestic violence
and sexual violence exposes gendered aspects of the violence which women
1 European Convention for the Protection of Human Rights and Fundamental
Freedoms (ECHR) (adopted 4 November 1950, entered into force 3 September
1953) ETS 5; Susan Deller Ross, Women’s Human Rights: The International and
Comparative Law Casebook (University of Pennsylvania Press 2013) 199.
2 The Commission has ceased its function in 1998 after entry into force of
Protocol No 11 to the Convention for the Protection of Human Rights and Fundamental
Freedoms, Restructuring the Control Machinery Established thereby (11 May 1994)
ETS 155.
3 Arts 33 (inter-state complaints) and 34 (individual complaint) ECHR. Protocol
No 16 to the Convention on the Protection of Human Rights and Fundamental
Freedoms (2 October 2014) ETS 214 (Advisory Opinion).
4 Jackie Jones, ‘The European Convention on Human Rights (ECHR) and the
Council of Europe Convention on Violence Against Women and Domestic Violence
(Istanbul Convention)’ in Jackie Jones and Rashida Manjoo (eds), The Legal Protection
of Women from Violence (Routledge 2018) 158.
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128 Conceptualizing femicide as a human rights violation
and girls experience, which may have been overlooked by the Court. Relevant
facts, such as authorities stereotyping women, are unearthed which the Court
did not deal with or neglected in its legal analysis. This approach is crucial to
critically assess the discrepancy between the factual situation and the Court’s
response. The case law section tells different women’s personal and societal
stories, thereby engaging in the consciousness-raising method by which a col-
lective experience is created.5 Finally, it reveals the many compounded human
rights violations, such as the right to life, the prohibition of torture and other
ill-treatment, and non-discrimination inherent in femicide.
THE ISTANBUL CONVENTION
The Istanbul Convention entered into force in 2014. It is the most recent
regional treaty for the protection of women’s rights, whose purposes are to
prevent violence and discrimination against women, to establish a compre-
hensive policy framework, to promote international cooperation in combatting
domestic violence, and to assist law enforcement agencies in implementing
protective measures.6 The European Union signed the Istanbul Convention in
2017. Up until 2021, 34 States have ratified the Convention, while 11 States
have signed it.7
Praised as ‘the most comprehensive victim supporting regional treaty that
currently exists,’8 the Istanbul Convention recognizes many acts of femicide.
It requires States to criminalize forms of psychological and physical violence,
forced marriage, female genital mutilation, forced abortion, sterilization,
sexual harassment, stalking, and rape. The Convention also defines rape as
‘engaging in nonconsensual vaginal, anal or oral penetration of a sexual nature
of the body of another person with any bodily part or object,’ similar to the
international criminal law approach in Furundžija.9
However, the Istanbul Convention’s approach to domestic violence is
ambivalent: it views domestic violence as gender-neutral on the one hand, and
as committed against women and girls specifically on the other. That violence
5 Nancy Levit and Robert R. M. Verchick, Feminist Legal Theory: A Primer (New
York University Press 2006) 25.
6 Art. 1(a) Council of Europe’s Convention on Preventing and Combating
Violence against Women and Domestic Violence (Istanbul Convention) (adopted 7
April 2011, entered into force 1 August 2014).
7 CoE, Chart of Signatures and Ratifications of Treaty, www .coe .int/ en/ web/
conventions/ full -list/ -/ conventions/ treaty/ 210/ signatures. All online sources were
accessed 30 October 2021.
8 Jones (n 4) 140. See Art. 7 Istanbul Convention.
9 See Art. 36(2) Istanbul Convention.
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Femicide and the European human rights system
is systemic is recognized in the Preamble as ‘a manifestation of historically
unequal power relations between women and men, which have led to domi-
nation over, and discrimination against, women by men and to the prevention
of the full advancement of women.’ The Convention also defines ‘violence
against women’ broadly as ‘all acts of gender-based violence that result in,
or are likely to result in, physical, sexual, psychological or economic harm
or suffering to women, including threats of such acts, coercion or arbitrary
deprivation of liberty, whether occurring in public or in private life.’10 The
systemic context, which makes domestic violence so common for women and
girls, whereas men and boys are sporadically affected, appears to be masked
by the Convention’s gender-neutral definition of domestic violence.11 The
Convention defines domestic violence as ‘physical, sexual, psychological
or economic violence that occur[s] within the family or domestic unit or
between former or current spouses or partners, whether or not the perpetra-
tor shares or has shared the same residence with the victim.’ The Istanbul
approach to domestic violence also appears to contrast with the Convention on
the Elimination of Discrimination Against Women (CEDAW) Committee’s
understanding of domestic violence as gender-based.12 Gender-neutral terms
may have the potential to call into question the treaty’s aim of protecting
women and girls from violence as envisioned in its Article 1.13 An undesired
effect of gender-neutral approaches may be the legitimization of budget alloca-
tions in equal shares to projects aimed at men, where such a budget is needed
to protect women and girls.14
The Istanbul Convention’s domestic violence definition does not easily
enable the Court to identify domestic violence as gender based. For example,
the Grand Chamber in Kurt v. Austria, the first domestic violence case exam-
ined by a panel of 17 judges, only referred to ‘domestic and gender-based vio-
lence,’ thereby using a cautious approach to the term.15 Nevertheless, the Court
can tackle domestic violence by reinterpreting Convention rights adjusted to
a contemporary context, and consider comprehensive approaches to domestic
violence, such as those set out in the Convention’s Preamble.16 Although there
10 Art. 3(a) Istanbul Convention.
11 Jones (n 4) 141.
12 CEDAW, General Recommendation No 19, para. 23; Jones (n 4) 141.
13 Jones (n 4) 142.
14 Art. 1(d) Istanbul Convention; see Jones (n 4) 144; UNGA, ‘Report of the
Special Rapporteur on Violence against Women, its Causes and Consequences’, UN
Doc A/HRC/26/38 (28 May 2014), para. 62.
15 ECtHR, Kurt v. Austria [GC], App No 62903/15 (15 June 2021), para. 161.
16 Maria Sjöholm, Gender-Sensitive Norm Interpretation by Regional Human
Rights Law Systems (Brill 2017) 18.
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130 Conceptualizing femicide as a human rights violation
is no possibility for victims to lodge complaints about violations of the Istanbul
Convention directly with the ECtHR, they can use the Convention to substan-
tiate claims under ECHR provisions and the Court can reference the Istanbul
Convention.17 Most notably, the Grand Chamber systematically referenced
the Istanbul Convention in Kurt v. Austria to outline the risk assessment in
domestic violence cases, the need to train law officials, the treatment of perpe-
trators and checks for weapons.18 Based on the Court’s courageous use of this
Convention, it seems that its relevance before it is increasing—notwithstand-
ing the withdrawal from the Convention or threat thereof by some Member
States.19 The Convention’s own treaty implementation mechanism, the Group
of Experts on Action against Violence against Women and Domestic Violence
(GREVIO), is not an individual complaint mechanism, but it provides impor-
tant recommendations and country reports, in which attention could be drawn
to situations of femicide.20
FEMICIDE UNDER THE ECHR
The ECtHR has mainly examined cases of domestic violence, sexual violence,
rape, forced nudity, forced sterilization, acid burnings, and human traffick-
ing.21 As applied by the Court, the main provisions relevant to femicide are the
right to life (Art. 2 ECHR), the right to be free from degrading and inhuman
treatment and the prohibition of torture (Art. 3 ECHR), the right to private and
family life (Art. 8 ECHR), as well as the principle of non-discrimination (Art.
14 ECHR).22
17 European Court of Human Rights (EctHR), Talpis v. Italy, App No 41237/14 (2
March 2017), para. 129.
18 Kurt v. Austria [GC] (n 15) paras 167, 172 and 175.
19 On 20 March 2021, Turkey announced its withdrawal from the Convention.
Başak Çali, ‘Withdrawal from the Istanbul Convention by Turkey: A Testing Problem
for the Council of Europe’ Ejil Talk! (22 March 2021), www .ejiltalk .org/ withdrawal
-from -the -istanbul -convention -by -turkey -a -testing -problem -for -the -council -of -europe/
Turkey’s withdrawal took effect on 1 July 2021.
20 See Art. 1(2) Istanbul Convention.
21 ECtHR, Opuz v. Turkey, App No 33401/02 (9 March 2009) (domestic violence);
ECtHR, Aydin v. Turkey, App No 57/1996/676/866 (25 September 1997) (forced
nudity; rape); ECtHR, Chowdury and Others v. Greece, App No 21884/15 (30 March
2017) (human trafficking); ECtHR, Ebcin v. Turkey, App No 19506/05 (11 May 2001)
(acid burnings). See for discussion of relevant case law, Sjöholm (n 16) 350.
22 The ECtHR does not usually analyze Arts 6 and 13 ECHR in domestic violence
cases after finding violations of other rights. See e.g., ECtHR, Muntenau v. Romania,
App No 34168/11 (26 May 2020), para. 85; Levchuk v. Ukraine, App No 17496/19 (3
March 2020), paras 92–93, referring to ECtHR, Centre for Legal Resources on behalf
of Valentin Câmpeanu v. Romania [GC], App No 47848/08 (14 July 2014), para. 156.
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Femicide and the European human rights system
In its early case law, the ECtHR frequently considered rape and sexual
violence as issues concerning the right to private life. Claims raised under the
right to life, the right to be free from inhuman and degrading treatment, and
the principle of non-discrimination were generally dismissed.23 The private life
perspective could convey the message that domestic violence, and inevitably
rape, remain issues of private concern, with which the State should not inter-
fere. The Court could avoid this misconception by viewing such violence as
degrading or inhuman treatment, if not torture. Although the Court has not yet
abandoned its Article 8 ECHR approach to violence against women and girls
(VAWG) entirely, the case law has moved away from exclusively relying on
the right to private life for rape cases, with the Court now typically combining
Articles 3 and 8 ECHR.24 The Court has still failed to clarify what form of
treatment (degrading, inhuman or torture) is at stake in most rape and domestic
violence cases under Article 3 ECHR.
Gender-based Violence
Femicide is characterized by discriminatory societal structures and
gender-stereotyping of the victim. The ECtHR considers inequality based on
sex under Article 14 of the Convention, stipulating that ‘the enjoyment of the
rights and freedoms set forth in [the] Convention shall be secured without dis-
crimination on any ground such as sex.’ As an ‘accessory’ provision, Article
14 ECHR can only be invoked in combination with other Convention rights,
although no other rights are required to have been violated.25 The Court has
23 See Kalucza v. Hungary, where the applicant invoked Arts 2, 3, and 8 ECHR,
but the Court only considered Art. 8. See also Bevacqua and S. v. Bulgaria, App No
71127/01 (12 June 2008); ECtHR, Kalucza v. Hungary, App No 57693/10 (24 April
2012), para. 73; ECtHR, Hajduová v. Slovakia, App No 2660/03 (30 November 2010)
paras 10–12, 42 and 50.
24 Rape: ECtHR, M.C. v. Bulgaria, App No 39272/98 (4 December 2003), paras
150–152 and 185 (Arts 8 and 3); ECtHR, X and Y v. the Netherlands, App No 8978/80
(26 March 1985), para. 27; ECtHR, M. and Others v. Bulgaria, App No 22457/08 (15
February 2012), paras 109–110. Domestic violence: Bevacqua and S. v. Bulgaria (n
23); ECtHR, A. and Others v. Croatia, App No 55164/08 (14 October 2010); Hajduová
v. Slovakia (n 23); Kalucza v. Hungary (n 23).
25 Samantha Besson, ‘Gender-Discrimination under EU and ECHR Law: Never
Shall the Twain Meet?’ (2008) 8(4) Human Rights Law Review 647–682 at 657. In
2005, the CoE’s Protocol No. 12 entered into force, which established a principle/right
of non-discrimination, no longer necessitating a connection to another right set forth
in the Convention. The application of Art. 1 Protocol 12 is restricted, insofar it only
applies to States which have ratified this Protocol. Protocol No 12 to the Convention
for the Protection of Human Rights and Fundamental Freedoms, NO 177, 4X 2000.
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132 Conceptualizing femicide as a human rights violation
ideally captured domestic violence under Article 14 ECHR and thus qualified
it as gender-based violence.26
However, the Court’s use of the principle of non-discrimination must be
criticized on three fronts. First, the conception of the non-discrimination
principle under Article 14 ECHR is not ideal for reasons of imposing an undue
burden on victims to demonstrate that domestic violence has a disproportion-
ate impact. As domestic violence victims are generally reluctant to report their
harm, this requirement may be difficult to meet when statistics on domestic
violence are inexistent or incomplete.27 Second, the ECtHR is still reluctant
to apply Article 14 ECHR in connection with domestic violence.28 After
Opuz, the ECtHR’s landmark case on domestic violence, the Court remained
ambivalent about whether domestic violence is gender-based and has failed to
consider it under Article 14 ECHR, most prominently in Kurt v. Austria, its
Grand Chamber case on domestic violence.29 Article 14 ECHR requires a high
threshold, i.e., ‘clear inequality of treatment’ in relation to another right.30
Third, the Court also neglects to apply Article 14 ECHR to rape cases which
are unrelated to domestic violence.
Since the ECtHR does not have direct jurisdiction over the Istanbul
Convention, Article 14 ECHR is the Court’s most progressive and comprehen-
sive device to deal with acts of femicide. The ECtHR has developed several
criteria to trigger Article 14 ECHR: (1) unfavorable treatment in comparable
cases; (2) based on sex; (3) which the State cannot objectively justify. The
Court’s discrimination approach includes a problematic formal equality
aspect. Comparing women and girls to men and boys means that the treatment
of women is only unequal to the extent that their rights are violated in the same
way as men’s are.31 The act of taking men’s experiences as the standard may
also imply that women and girls are seen as inferior, keeping the problematic
lower hierarchical status intact.32
26 Muntenau v. Romania (n 22) paras 47–83.
27 See Daniela Bandelli, Femicide, Gender and Violence: Discourses and
Counterdiscourses in Italy (Palgrave Macmillan 2017) 43.
28 See ECtHR, Kontrova v Slovakia, App No 7510/04 (31 May 2007); ECtHR,
Branko Tomašić and Others v. Croatia, App No 46598/06 (15 January 2009); A. and
Others v. Croatia (n 24).
29 Kurt v. Austria [GC] (n 15) paras 214–215.
30 Besson (n 25) 655; Kontrova v. Slovakia (n 28); Branko Tomašić v. Croatia (n
28).
31 Sandra Fredman, ‘Engendering Socio-Economic Rights’ in Anne Hellum and
Henriette Sinding Aasen (eds), Women’s Human Rights: CEDAW in International,
Regional, and National Law (Cambridge University Press 2013) 223–224.
32 Sandra Fredman, Discrimination Law (Oxford University Press 2001) 2.
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Femicide and the European human rights system
Article 14 ECHR requires the existence of unequal treatment based on
sex. The applicant must produce prima facie evidence that a rule couched in
seemingly neutral terms has led to mistreatment based on sex.33 Furthermore,
she has to demonstrate that the State failed to protect women and girls from
domestic violence and that this breached her right to equal protection by
the law.34 The burden of proof can be shifted ‘where the events lie with the
exclusive knowledge of the authorities the burden of proof may be regarded
as resting on the authorities to provide a satisfactory and convincing explana-
tion.’35 The required evidence includes statistics and reports on the prevalence
of gender-based violence.36
These numerical requirements impose an undue burden on the victim. In
Kalucza v. Hungary, the Court found that the victim did not provide enough
statistics and reports, and failed to demonstrate ‘that she was treated differ-
ently compared to other persons in analogous situations.’37 Similarly, in A.
v. Croatia, the Court dismissed the applicant’s Article 14 ECHR claim and
the statistical evidence adduced, in a narrow sense focusing on whether the
police had tried to act as a mediator, as had been the case in Opuz v. Turkey.38
Conversely, in Mudric v. Moldova, the ECtHR abandoned the statistical evi-
dence and disproportionate impact requirements. Examining Ms Mudric’s sit-
uation as a woman, the Court considered that the authorities had lacked interest
in investigating violence against her and in enforcing her protection order, and
therefore discriminated against her.39 The ECtHR held that the States’ inaction
with regard to domestic violence amounted to ‘repeatedly condoning such vio-
lence and reflect[ed] a discriminatory attitude against her as a woman.’40 The
Court cited the Special Rapporteur on Violence against Women, corroborating
the conclusion that ‘the authorities do not fully appreciate the seriousness and
the extent of the problem of domestic violence and its discriminatory effect on
women.’41
In order to prevent these evidentiary problems, the ECtHR could rely on
the police’s passivity in a domestic violence case based on gender stereotypes,
which would require the Court to examine the case with gender-sensitivity.42
33 Opuz v. Turkey (n 21) para. 183.
34 Ibid., paras 184–191.
35 Ibid.
36 ECtHR, Volodina v. Russia, App No 41261/17 (9 July 2019), paras 112–113.
37 Kalucza v. Hungary (n 23) para. 75.
38 A. and Others v. Croatia (n 24) paras 92–98.
39 Mudric v. Moldova, App No 74839/10 (16 July 2013), para. 62.
40 Ibid., para. 63.
41 Ibid.
42 See Volodina v. Russia (n 36) para. 111.
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134 Conceptualizing femicide as a human rights violation
Another way to avoid this burden is that the Court examines official statistics
and Article 14 even in the absence of concrete submissions by the applicants.
In Balsan v. Romania, the ECtHR found a violation of Article 14 in conjunc-
tion with Article 3 on its own motion, even though Ms Balsan had not invoked
the former herself.43 In this respect, the Court considered that ‘the type of
violence is tolerated and perceived as normal by a majority of people and that
a rather small number of reported incidents are followed by criminal investiga-
tions.’44 The ECtHR noted that insufficient shelters existed, that most women
were unaware of the existence of measures to combat domestic violence, and
that the number of domestic violence cases was rising.45 The Court concluded
that domestic violence disproportionately affected women in Romania, and
was therefore gender-based.46 As the ECtHR is far removed from the facts of
a case, it may ask the State to collaborate and provide statistics on the levels of
domestic violence, for example.47 Consequently, where the Court recognizes
systemic violence, e.g., based on the United Kingdom’s femicide census,48
or data on femicides in Switzerland collected by non-state actors49 the state
authorities could also be expected to know about such widespread domestic
violence, and the burden of proof for Article 14 should be shifted onto the
government. While the Court recognizes that domestic violence is not an
isolated phenomenon, it has yet to consider the legal consequences and state
responsibility linked with this context.
Once this prima facie evidence has established that a specific rule targets
a higher percentage of women than men, the government must show that
this difference results from objective factors.50 Article 14 ECHR does not
list any legitimate aims to justify unequal treatment, unlike those enumerated
in Articles 8–11 ECHR. When assessing the States’ alleged objective, the
ECtHR awards States a wide margin of appreciation, also known as discretion,
to decide about the purpose and proportionality of the aim.51 However, at the
43 Balsan v. Romania, App No 49645/09 (23 May 2017), paras 72 and 80–82.
44 Ibid., para. 83.
45 Ibid.
46 Ibid., paras 78–79.
47 See for states’ duty to collaborate with the Court, Art. 38 ECHR.
48 Femicide Census, ‘UK Femicides 2009–2018’ (November 2020), https:// www
.femicidecensus .org/ wp -content/ uploads/ 2020/ 11/ Femicide -Census -10 -year -report
.pdf.
49 StopFemizid, ‘Femizide in der Schweiz,’ https:// www .stopfemizid .ch/ deutsch
#de1.
50 Opuz v. Turkey (n 21) paras 183–184.
51 See Christoph Grabenwarther, European Convention for the Protection of
Human Rights and Fundamental Freedoms (Beck 2014) 349–352; Hajduová v.
Slovakia (n 23), para. 47.
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135
Femicide and the European human rights system
same time, the Court finds that the State must have ‘very weighty reasons’
or ‘compelling reasons’ to justify discrimination based on sex.52 The most
contentious issue in domestic violence cases is whether a woman was discrim-
inated against based on her sex, rather than whether such an objective ground
existed to justify discrimination. Besides, a State’s attempted justification of
violent treatment may raise moral and legal concerns.53
That the Court has applied Article 14 ECHR to domestic violence cases
is a step in the right direction. However, the ECtHR does not apply Article
14 ECHR to rape cases, and consequently has not yet recognized that rape
is gender-based. As rape may be directed at women based on their sex, the
required purpose under the prohibition of torture would be met. Taking into
account the gender-based nature of many rapes would let the Court identify
discrimination as the prohibited aim in torture, and adjudicate rape as torture.
A more enthusiastic application of Article 14 ECHR on the part of the ECtHR
would help properly recognize gendered harm. Based on the principle of iura
novit curia, the Court itself can requalify domestic violence claims, adapting
its interpretation to the contemporary context, and therefore adjudicate them
under the prohibition of torture. Finally, the ECtHR’s human rights approach to
femicide under Article 14 can be supplemented by the Istanbul Convention.54
Severe Violence
The most promising provision to address femicide in the European human
rights system is Article 3 ECHR as it covers severe violence. Under Article
3 ECHR, ‘[n]o one shall be subjected to torture or to inhuman or degrading
treatment or punishment.’ Since this provision is silent on what type of harsh
treatment is inhuman or degrading, or torture, the ECtHR has developed the
scope of each of these treatments in its case law.55 To fall within the ambit
of Article 3 ECHR, ill-treatment must attain a ‘minimum level of severity,’
a threshold which is relative and depends on ‘[factors] such as the duration of
the treatment, its physical and mental effects and, in some cases, the sex, age
and state of health of the victim, etc.’56 The Court has specified that the sever-
52 ECtHR, J.D. and A. v. the United Kingdom, App. Nos. 32949/17 and 34614/17
(24 October 2019), paras 96–100 and 103–105. See also Grabenwarther, ibid., 353.
53 See ibid.
54 Balsan v. Romania (n 43) paras 72 and 80–82. The Court explains the extent to
which it takes account of other international treaties in Demir and Baykara v. Turkey,
App No 34503/97 (12 November 2008), paras 65–68.
55 See also Fanny De Weck, Non-Refoulement under the European Convention on
Human Rights and the UN Convention against Torture (Brill 2017) 138.
56 ECtHR, Ireland v. UK, App No 5310/71 (18 January 1978), para. 162.
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136 Conceptualizing femicide as a human rights violation
ity ‘depends on all the circumstances of the case, such as the nature and context
of the treatment or punishment, the manner, and method of its execution.’57
The ECtHR considers degrading treatment to be conduct which causes
‘feelings of fear, anguish and inferiority, capable of humiliating [the victim]’
and debases the victim or negatively affects the person’s personality, as well as
physical or moral resistance.58 Inhuman treatment is more severe than degrad-
ing treatment, as noted in the Greek case: ‘[T]he notion of inhuman treatment
covers at least such treatment as deliberately causes severe suffering, mental
or physical, which in the particular situation is unjustifiable.’59 Torture is the
most intense ill-treatment under Article 3 ECHR,60 to which a special stigma is
attached, and the prohibition of which is ‘one of the most fundamental values
of democratic society’ from which no derogation is permitted. Therefore, the
notion of torture is most suitable for adjudicating extreme forms of violence
in femicide.61 As ‘an aggravated form of inhuman treatment,’ torture has long
been thought to be used for ‘obtaining information, inflicting punishment or
intimidation,’ but the cases brought suggest that discrimination can also be an
intended aim of torture.62 Since Article 3 ECHR does not define torture, the
ECtHR’s analysis is loosely based on Article 1 Convention Against Torture
(CAT):63
The term ‘torture’ means any act by which severe pain or suffering, whether phys-
ical 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. It does not include pain or suffering arising only from, inherent in or
incidental to lawful sanctions.64
57 ECtHR, Soering v. UK, App No 14038/88 (7 July 1989), paras 100–101.
58 ECtHR, Raninen v. Finland, App No 20972/92 (16 December 1997), paras
21–22 and 55.
59 European Commission, Greek Case, Judgment of 18 November 1969; Jalloh v.
Germany [GC], App No 54810/00 (11 July 2006), para. 68.
60 De Weck (n 55) 141.
61 Aydin v. Turkey (n 21) paras 81–82.
62 See for the previous approach, Greek Case (n 59); ECtHR, Ilhan v. Turkey, App
No 22277/93 (27 June 2000), para. 87 (deviating from the purpose requirement); De
Weck (n 55) 141.
63 See Sjöholm (n 16) 56.
64 Art. 1 United Nations Convention Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment (CAT), UNGA Res 39/46 (adopted 10 December
1984, entered into force 26 June 1987) UN Doc A/39/51, 1465.
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Femicide and the European human rights system
In line with CAT’s definition, the ECtHR requires (1) intentionality, i.e.,
a certain amount of preparation and exertion; (2) infliction of severe mental or
physical pain; and (3) a prohibited purpose.65 Apart from these strict criteria,
the Court recognizes that the scope of the prohibition of torture can evolve
over time as the ECHR is a ‘living instrument’ susceptible to changing cir-
cumstances.66 Hence, even though the Court now sees VAWG as inhuman
and degrading treatment, such treatment could be perceived as torture in the
future.67
The ECtHR examines instances of rape and domestic violence under Article
3 ECHR when women and girls are attacked, harassed, sexually abused, and
forcibly sterilized.68 However, only where state actors rape women has the
Court unequivocally classified rape as torture.69 When rape is committed by
private persons, the Court cursorily states that the rape falls within the ambit of
Article 3 ECHR but rarely identifies the relevant ill-treatment.70 This approach
fails to clarify the scope and legal implications of VAWG. The differentia-
tion between the exact same act being classified as torture when committed
by a police officer or a prison guard but another form of ill-treatment when
a private individual is the perpetrator, makes no sense.71 Moreover, this would
create a hierarchy of what type of rape ought to be considered serious and what
type of rape is less severe because it happens in daily life.72 The ECtHR ought
to delve into how rape affects women and why it is committed.
‘Private’ Life
The ECtHR has previously resorted to Article 8 ECHR, ‘the right to respect
his private life,’ to classify acts of VAWG. This Article broadly includes
a person’s right to privacy and identity, extending to the relationship between
private individuals and allows individuals to enter into and develop relation-
65 ECtHR, Selmouni v. France, App No 25803/94 (29 July 1988), paras 97–98
(referring to CAT).
66 Ibid., para. 101.
67 Ibid.
68 Mudric v. Moldova (n 39) paras 64–65; ECtHR, Valiulienė v. Lithuania, App No
33234/07 (26 March 2013), para. 87.
69 E.g., ECtHR, Aydin v. Turkey (n 21); ECtHR, Maslova and Nalbandov v. Russia,
App No 839/02 (24 January 2008).
70 E.g., M.C. v. Bulgaria (n 24); Sjöholm (n 16) 406.
71 Rhonda Copelon, ‘Gender Crimes as War Crimes: Integrating Crimes against
Women into International Criminal Law’ (2000) 46 McGill Law Journal 217–240 at
239.
72 Ibid.
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138 Conceptualizing femicide as a human rights violation
ships with each other.73 The physical and moral integrity protected by Article
8 ECHR covers rape and sexual violence, forced gynaecological examination,
and episodes of domestic violence.74
At times, the Court’s reason for centering on Article 8 ECHR was to circum-
vent quantifying the particular treatment under Article 3.75 As was explained
in A. v. Croatia, ‘in order to avoid further analysis as to whether [the physical
acts meet] the threshold for the purposes of Article 3 of the Convention, the
Court will analyze the circumstances of the present case from the standpoint
of Article 8.’76 In Kalucza v. Hungary, the ECtHR considered the death
threats against Ms Kalucza under Article 8 ECHR, despite claims raised under
Articles 2, 3 and 13 ECHR.77 The Court declared these complaints admissible
but did not discuss their merits, ‘their essence having already been dealt with in
the context of Article 8.’78 This suggests that the Court deems the application of
Article 3 ECHR only pertinent when actual physical harm is used.79 In Levchuk
v. Ukraine, the applicant had only complained before the ECtHR about the
domestic authorities’ failure to evict her violent ex-partner under Article 8
ECHR, as result of which the Court examined that provision.80 Had the Court
asked the ‘woman question,’ however, it might have requalified her complaint,
as her exposure to ‘physical assaults, intimidation and threats’ not merely
interfered with her private life, but constituted serious violence under Article
3 ECHR.81 The Article 8 ECHR approach to violence should be abandoned as
it conveys the message that physical and psychological violence is not severe,
and the private/public divide is reinforced by the application of the right to
private life to cases of femicide.
Most rape cases are now decided under Articles 3 and 8 ECHR combined, or
only under Article 3 ECHR. Of course, whether the applicants properly claim
73 X and Y v. the Netherlands (n 24), paras 23–24; A. and Others v. Croatia (n 24),
para. 59; Kalucza v. Hungary (n 23) paras 58–59.
74 X and Y v. the Netherlands (n 24), para. 22; ECtHR, Jankovich v. Croatia, App
No 38478/05 (5 March 2009), para. 59.45 (episodes of kicking, hitting, throwing the
applicant down some stairs, and other forms of domestic violence); ECtHR, Kowal
v. Poland, App No 21913/05 (2 October 2012), paras 45–46 (forced gynaecological
examination and threats of rape while in police custody).
75 Sjöholm (n 16) 406.
76 A. and Others v. Croatia (n 24), para. 57.
77 Hajduová v. Slovakia (n 23), paras 6.11–13 and 48.
78 Kalucza v. Hungary (n 23) para. 73.
79 See Patricia Londono, ‘Recent Developments, Human Rights, Positive
Obligations and Domestic Violence: Kalucza v Hungary in the European Court of
Human Rights’ (2012) 1(2) International Human Rights Law Review 339–348 at 346.
80 Levchuk v. Ukraine (n 22) para. 77.
81 See ibid., para. 81.
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139
Femicide and the European human rights system
Article 8 and/or 3 ECHR may impact the Court’s willingness to adjudicate
such harm.82 Most domestic violence and rape cases should be decided under
Article 3 ECHR for three reasons. First, the application of Article 3 ECHR
classifies domestic violence as serious harm. As ongoing and recurring human
rights violations, most domestic violence and rape cases would meet the
required ‘minimum level of severity’ standard to trigger application of Article
3 EHCR, and thereby convey legal certainty about the type and nature of the
ill-treatment. Conflating Articles 3 and 8 ECHR also blurs the line between
conduct which falls short of the Article 3 ECHR threshold and that which con-
stitutes degrading or inhuman treatment, or torture.83 The ECtHR’s failure to
examine the harm at stake opens the door for regressive case law which consid-
ers rape solely under Article 8 EHCR. For example, in Valiulienė v. Lithuania,
the dissenting judge argued that the Court should have applied Article 8 ECHR
to a domestic violence case, stating that the treatment at issue did not rise to
the threshold required for Article 3 ECHR.84 In the interest of legal certainty
and recognition of domestic violence, the ECtHR ought to consistently apply
the latter Article to domestic violence.85 Framing domestic violence and sexual
violence as Article 3 ECHR issues also helps to move domestic violence
and other acts against women into the ‘public’ realm. In Bevacqua and S. v.
Bulgaria, the police had failed to intervene because the violence against Ms
Bevacqua concerned a private matter, an aspect paradoxically emphasized
by the Court.86 In this sense, an Article 8 ECHR analysis could propagate
a message that VAWG is a ‘trivial’ matter in the domestic sphere, where the
State ought not to interfere.87
An approach with Article 3 ECHR takes account of the continuous nature of
domestic violence as ill-treatment. As Judge Albuquerque noted in his dissent
in Valiulienė, ‘repeated verbal abuse like insults’ is enough to meet the thresh-
old of Article 3 ECHR. He rightly indicated the effect of such abuse, since
‘a kick, a slap or a spit is also aimed at belittling the dignity of the partner,
conveying a message of humiliation and degradation.’88 Albuquerque stressed
that domestic violence is a recurrent human rights violation and that it must
be considered holistically. By contrast, the Court’s viewpoint under Article
8 ECHR is focused on a single instance of verbal abuse or maltreatment. As
82 See Ebcin v. Turkey (n 21); M.C. v. Bulgaria (n 24); ECtHR, E.B. v. Romania,
App No 49089/10 (19 March 2019).
83 See Londono (n 79) 339–348.
84 Valiulienė v. Lithuania (n 68), Dissenting opinion of Judge Jociene, para. 10.
85 E.B. v. Romania (n 82) para. 44.
86 Bevacqua and S. v. Bulgaria (n 23) para. 83.
87 See Valiulienė v. Lithuania (n 68) paras 55 and 73.
88 Ibid., concurring opinion of Judge Pinto de Albuquerque.
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140 Conceptualizing femicide as a human rights violation
a result, the application of said Article ‘would fall short of the real and full
meaning of violence in the domestic context and would thus fail to qualify as
a “gendered understanding of violence.”’89 The ECtHR ought to inquire into
domestic violence as a whole and consider whether the violence at issue is
repeated over time to bring to light continuous harm. This means that most
psychological harm committed over time in the context of domestic violence
would meet the Article 3 ECHR threshold, as ill-treatment can be inflicted
through mental harm.90 On purely normative grounds, adjudication of the facts
under Article 8 ECHR would become obsolete should Article 3 ECHR become
the baseline for measuring domestic violence. However, from a practical per-
spective, combining Articles 3 and 8 ECHR may increase the just satisfaction
awarded to victims under Article 41 ECHR.91 Therefore, the violence in femi-
cide should attract application of Article 3 ECHR and could be supplemented
by Article 8 ECHR for reasons relating to pecuniary damages.
‘Private’ Murders
Many femicide cases in Europe are characterized by the victim or her
children’s private murder, a breach of their right to life. The right to life is
embodied in Article 2 ECHR, which provides that ‘[e]veryone’s right to life
shall be protected by law.’92 As one of the most fundamental rights in the
ECtHR’s case law, it is vital that States take measures to prevent violations of
Article 2 ECHR, an issue which the Court has considered in outlining states’
positive obligations.93 In addition to the State’s duty not to take someone’s
life, it also has a positive obligation to ‘safeguard the lives of those within its
jurisdiction,’ such as preventing the murders of women and children by private
actors.94 To this effect, a State must (1) ‘put in place effective-criminal-law
provisions to prevent the commission of crimes,’ and (2) establish an adequate
‘law-enforcement machinery for the prevention, suppression, and punish-
ment of breaches of such provisions.’95 Given ‘the unpredictability of human
conduct and the operational choices,’ the State cannot be held responsible
89 Ibid.
90 Volodina v. Russia (n 36) para. 81. See also Ronagh McQuigg, ‘The European
Court of Human Rights and Domestic Violence: Volodina v. Russia’ (2021) 10(1)
International Human Rights Law Review 155–167 at 159 and 161.
91 All ill-treatment under Art. 3 ECHR triggers central non-refoulement obligations
in the European human rights system. De Weck (n 55) 140.
92 Art. 2(1) ECHR.
93 E.g., Talpis v. Italy (n 17) paras 98–100.
94 Valiulienė v. Lithuania (n 68) para. 49.
95 Ibid.
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Femicide and the European human rights system
for every human rights violation.96 The ECtHR uses the criteria developed in
Osman, requiring the State to act when:
[state authorities] knew or ought to have known of a real and immediate risk to the
life of an identified individual from the criminal acts of a third party and that they
failed to take measures within the scope of their powers which, judged reasonably,
might have been expected to avoid that risk.97
The ECtHR finds violations of the states’ positive obligations to protect the
right to life when various acts of domestic violence against the victim culmi-
nate in murder, often after a woman has endured consistent abuse over a long
period of time. However, the cases are often left to be dealt with, if at all, under
the procedural limb of Article 2, and/or Articles 6 and 13 ECHR (fair trial and
effective remedy), limiting the Court’s analysis on whether the investigation
was effective. In Durmaz v. Turkey, Ms Durmaz’ daughter died after having
been hospitalized for a medication overdose, presumably due to the victim’s
father’s violent attacks. Turkish authorities had conducted an ineffective
investigation into the circumstances of her death, thereby violating Article 2
ECHR. Arguably, the case was only decided under the procedural limb as the
applicants had failed to raise a substantive complaint.98 Domestic violence
also implicates harm to other family members, raising questions on how to
effectively deal with such acts, especially when the perpetrator subsequently
commits suicide.99
The ECtHR has recognized substantive violations in many cases. In Branko
Tomašić v. Croatia, the perpetrator threatened to kill his wife and infant in
the presence of police officers, before committing suicide.100 In Kontrava v.
Slovakia, Ms Kontrova’s husband repeatedly threatened her and their two
children, eventually killing their children and committing suicide.101 In Civek
v. Turkey, an abused woman had fled to a shelter. She tried to divorce her
husband, but then withdrew the application due to death threats from her
husband. He was briefly imprisoned, but sometime after his release, he killed
his wife and their daughter before committing suicide.102 In Talpis v. Italy,
the perpetrator killed the couple’s son and then committed suicide.103 These
suicides in domestic violence cases leave the victims who may have survived,
96 Ibid., para. 50.
97 ECtHR, Osman v. UK, App No 23452/94 (28 October 1998), para. 116.
98 ECtHR, Durmaz v. Turkey, App No 3621/07 (13 November 2014), paras 66–67.
99 See Kurt v. Austria [GC] (n 15).
100 Branko Tomašić v. Croatia (n 28) paras 50–51, 61 and 65.
101 Kontrova v. Slovakia (n 28) paras 50–53.
102 ECtHR, Civek v. Turkey, App No 55354/11 (23 February 2016), paras 65–66.
103 Talpis v. Italy (n 17) paras 42 and 125.
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142 Conceptualizing femicide as a human rights violation
or their relatives, without justice.104 In such circumstances, the Court’s discus-
sion of the substantive violation of Article 2 ECHR is very important to raise
awareness about states’ preventive obligations.
The ECtHR also examines death threats under Article 2 ECHR. In A. v.
Croatia, the Court wanted to ‘avoid further analysis as to whether the death
threats against the applicant engaged the State’s positive obligation under
Article 2,’ and left the question of whether death threats fall within the ambit
of Article 2 ECHR unanswered.105 In Talpis, Ms Talpis was subjected to
‘inherently life-endangering conduct even though she ultimately survived her
injuries,’ which triggered Article 2 ECHR.106 However, in order to qualify an
attack as gender-based, the Court must combine its analysis of Article 2 with
Article 14 ECHR.
DOMESTIC VIOLENCE
The ECtHR has repeatedly decided cases on domestic violence, ‘a general
problem which affects, to a varying degree, all member States.’107 Perhaps due
to the term domestic violence not having been defined in the ECHR text, the
Court initially struggled with understanding that domestic violence can entail
many episodes of violence and various forms ‘ranging from physical assault
to sexual, economic, emotional or verbal abuse––but has become aware of
this.108 The Court has recognized and advanced State responsibility in relation
to domestic violence under Article 14 of the Convention coupled with Article
3 ECHR in its ground-breaking Opuz judgment, advanced in Talpis, and con-
firmed in Mantenau and Volodina.109 In the same vein, these cases recognized
the continuous nature and slow-death potential of domestic violence, as it
places women and girls at a ‘constant risk’ of violence.110 The Grand Chamber
case of Kurt disregarded Article 14 ECHR, a case that ultimately resulted in
a rejection of the right to life claim. Even so, it advanced important standards
on State responsibility for femicide.111
104 E.g., Branko Tomašić v. Croatia (n 28) para. 63.
105 A. and Others v. Croatia (n 24) para. 57.
106 Talpis v. Italy (n 17) para. 110.
107 Levchuk v. Ukraine (n 22) para. 78.
108 Ibid. See also Bonita Meyersfeld, Domestic Violence and International Law
(Hart 2011) 111 and 123–124.
109 Muntenau v. Romania (n 22) paras 47–83.
110 Ibid., para. 73. See also Volodina v. Russia (n 36) para. 86; Talpis v. Italy (n 17)
para. 122.
111 Kurt v. Austria [GC] (n 15).
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Femicide and the European human rights system
Opuz v. Turkey (2009)
Over a timespan of six years, H.O. had repeatedly harassed, beaten, and
threatened to kill his wife, Nahide Opuz, and her mother. Their injuries were
confirmed by medical reports.112 In one instance, the injuries inflicted on Ms
Opuz were serious enough to endanger her life.113 As the threats intensified,
Ms Opuz and her mother filed several criminal complaints, some of which they
withdrew under pressure from H.O.114 Considering the matter to be a ‘domestic
issue,’ the police limited its actions to taking statements from the perpetrator,
performing some medical examinations, and temporarily detaining H.O. When
Ms Opuz and her mother tried to move away, H.O. killed her mother. He was
convicted for murder and sentenced to life imprisonment. Released pending
appeal, he continued to harass his wife.115 The Court found violations of the
right to life (Art. 2 ECHR), the right to humane treatment (Art. 3 ECHR) and,
for the first time in a domestic violence case, the principle of non-discrimina-
tion (Art. 14 ECHR).
Opuz is the ECtHR’s landmark case on domestic violence and set standards
on which the Court’s recent case law on domestic violence builds.116 The
Court found that Turkey failed to protect Ms Opuz’s mother and violated her
right to life.117 Consistent with its case law, the ECtHR required that States
secure the right to life in domestic violence cases by establishing both ade-
quate criminal-law provisions to deter the commission of offences against the
person and law-enforcement machinery to implement these provisions.118 The
Court particularly criticized the Turkish legal framework for the punishment
of domestic violence, which required Ms Opuz to pursue a criminal investi-
gation,119 holding that a criminal system could not adequately prevent violent
crimes if dependent on victims’ actions.120 The authorities should have pursued
the case as a matter of public interest despite the withdrawal of a formal
complaint, considering that the violence was of an especially serious and
continuous nature, including life-threatening injuries, and the risk of further
offenses.121 Turkey’s obligation to apply operational measures was triggered
112 Opuz v. Turkey (n 21) paras 9–52.
113 Ibid., para. 13.
114 Ibid., para. 11.
115 Ibid., para. 133.
116 See also Ronagh McQuigg, The Istanbul Convention, Domestic Violence and
Human Rights (Routledge 2017) 64.
117 Opuz v. Turkey (n 21) para. 153.
118 Ibid., para. 128.
119 Ibid., para. 145.
120 Ibid., para. 149.
121 Ibid., paras 138, 143 and 148.
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144 Conceptualizing femicide as a human rights violation
in this case as the State knew of a real and immediate risk to Ms Opuz and
her mother on the basis of various criminal complaints.122 H.O. carried lethal
weapons and frequently approached Ms Opuz and her mother until he finally
killed Ms Opuz’s mother.123 Accordingly, the Court held that the authorities
had failed to take reasonable measures to protect Ms Opuz’s mother whose life
was at risk from the criminal acts committed by H.O.124
In addition to breaches of Articles 2 and 3 ECHR, the ECtHR found a viola-
tion of Article 14 ECHR based on Ms Opuz and her mother’s sex in a context
where the police structurally remained inactive in cases of domestic violence
perpetrated against women.125 In particular, the police and judicial authorities
acted as mediators in family matters, unreasonably delaying injunctions, and
mitigating sentences.126 The Court considered that ‘a general policy or measure
that has disproportionately prejudicial effects on a particular group may be
considered discriminatory, notwithstanding that it is not specifically aimed
at that group.’127 Ms Opuz demonstrated that the highest reported number of
domestic violence victims in Turkey occurred in the region where she lived,
with the victims being mainly illiterate Kurdish women.128 The ECtHR noted
that the violence she suffered, the threats from her husband after his release
from prison, and her social background—‘namely the vulnerable situation of
women in southeast Turkey’129—led to physical injury and psychological pres-
sure ‘sufficiently serious to amount to ill-treatment’ under Article 3 ECHR.130
Shortly before Opuz was decided, the CEDAW Committee had also
expressed concern on VAWG in Turkey and had asked the State to prevent
and combat such violence, which may have made the applicant’s discrim-
ination claim more tangible.131 The Court emphasized that a limited group
of women in a specific context was persecuted, not the female population in
Turkey as such:132 an important criteria to identify the protected female group
(see Chapter 9). The distinct treatment these women and girls suffered, their
complaints about domestic violence being left unanswered, was attributable
122 Ibid., paras 115 and 129–139. See Osman v. UK (n 97) para. 116; Kontrova v.
Slovakia (n 28) para. 50.
123 Opuz v. Turkey (n 21) para. 143.
124 Ibid., paras 116 and 130. See Kontrova v. Slovakia (n 28) para. 50.
125 Opuz v. Turkey (n 21) para. 183.
126 Ibid., paras 192 and 195–196.
127 Ibid.
128 Ibid, para. 194.
129 Ibid., paras 160–161.
130 Ibid., para. 161. See also McQuigg (n 116) 65.
131 Opuz v. Turkey (n 21) para. 197.
132 Sjöholm (n 16) 401.
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Femicide and the European human rights system
to their sex in the eyes of the Court.133 The ECtHR noted that, in the context
of discrimination, the ‘lower status of women in society [is] exacerbated by
the obstacles women often face in seeking remedies from the State.’134 The
State’s failure to protect women against domestic violence was considered
to breach women’s right to equal protection of the law, a failure which does
not need to be intentional. The Court held that the violence against Ms Opuz
and her mother, inhuman and degrading treatment under Article 3 ECHR, was
gender-based.135 Since acts of gender-based violence are legal elements of
femicide, Opuz paves the way for adjudicating femicide under IHR.
Moreover, Opuz sheds light on the ECtHR’s response to acts of violence
against women committed by non-state actors in the private sphere and the
Osman test as it was applied to risk assessments in domestic violence cases.136
It was evident in this case that the domestic authorities had been aware of
the threats and violence against the applicant. The question was whether the
authorities had done enough to prevent further violence. The Court awards
discretion to the authorities to decide which measures to take.137 The Turkish
authorities took Ms Opuz for medical exams, questioned her husband, and
placed him in detention twice. Yet, none of these measures stopped H.O. from
committing further unlawful acts.138 After the first death threats and beatings,
the authorities discontinued the proceedings against H.O as the applicant’s
injuries had healed.139 Since H.O. had received a lenient sentence and pun-
ishment for his severely violent acts––25 days in prison for running over his
mother-in-law and a small fine for stabbing Ms Opuz seven times––140 the
Court concluded that the perpetrator acted with impunity.141 The Court found
that the criminal law system should have functioned despite the withdrawal of
complaints given the constant threat to the applicant’s physical integrity and
the seriousness of the crimes. The inactivity of the domestic authorities and
the resulting impunity for the perpetrator resulted in a violation of Articles 2,
3 and 14 ECHR.142
133 Opuz v. Turkey (n 21) para. 197.
134 Ibid., para. 188.
135 Ibid., para. 191.
136 Ibid., para. 145.
137 Ibid., para. 165.
138 Ibid., para. 16.
139 Ibid., paras 9–10 and 169.
140 Ibid., para. 169.
141 Ibid., para. 170.
142 Ibid., paras 199–202.
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146 Conceptualizing femicide as a human rights violation
A. and Others v. Croatia (2010)
Ms A.’s husband punched, kicked and threatened her, even in front of their
daughter.143 She complained to the national authorities, but the proceedings
against her husband were lengthy, and fines remained unenforced.144 Her
husband was eventually ordered to undergo compulsory psychiatric treatment.
He had suffered from post-traumatic stress disorder on account of having been
interned in a concentration camp during the war in the former Yugoslavia—the
roots of his behavior being in a context of armed conflict.145 For short periods
of time, he was admitted to a psychiatric clinic, but upon each release, he
continued to harass and threaten Ms A. A judge he had threatened recused
herself from the case.146 Ms A. sought protective measures for herself and her
daughter, but the authorities said there was no ‘immediate risk to her life.’147
Ms A. and her daughter fled to a women’s shelter. Then, they moved to a secret
address. Her husband located her through a detective and abused her.148
The ECtHR found that Croatia had violated her right to private life under
Article 8 ECHR but declared the complaint with respect to the principle of
non-discrimination under Article 14 inadmissible. The Court simply held that
Article 8 ECHR covers attacks on a person’s ‘physical and moral integrity,’
and extends to the relationship between private individuals.149 Instead, the
ECtHR noted that ‘issues pertinent to the threshold for the purposes of Article
3 of the Convention,’ prevented it from applying that provision.150 Sjöholm
argues that ‘the focus on Article 8 was a choice based on legal convenience.’151
To make the seriousness of the harm inflicted visible—‘verbal, including
serious death threats, and physical, including hitting and kicking the applicant
in the head, face and body, causing her injuries’—the Court should have
applied Article 3 ECHR to the domestic violence.152
The ECtHR considered Croatia’s international responsibility for Ms A.’s
abuse. It criticized the authorities for inadequately implementing measures to
protect victims, thereby failing to satisfy the State’s positive obligations under
Article 8 ECHR. Croatian authorities had taken various measures to imple-
143 A. and Others v. Croatia (n 24), paras 7–8 and 19.
144 Ibid., paras 24, 28 and 32–35.
145 Ibid., para. 6.
146 Ibid., para. 16.
147 Ibid., para. 35.
148 Ibid., paras 35–36.
149 Ibid., paras 58–59.
150 Ibid., para. 66.
151 Sjöholm (n 16) 406.
152 A. and Others v. Croatia (n 24) para. 55.
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Femicide and the European human rights system
ment the existing criminal law framework to protect Ms A. However, many
protection measures, including psychiatric treatment remained unenforced.153
The State had failed to consider the situation holistically by instigating many
minor criminal proceedings relating to the same facts.154 Evidently, the Court
recognized here that if each instance of abuse is only viewed as a singular
occurrence, the insidious domestic violence, recurring over months, could be
wrongfully considered as unrelated, spontaneous acts.
Regrettably, her Article 14 claim was declared inadmissible, since she had
not shown that the effect of the violence was discriminatory.155 The ECtHR
distinguished A. and Others from Opuz on two essential points. First, it noted
that the situation in Turkey was systemic, as one of ‘general and discriminatory
judicial passivity.’156 In A. and Others, the Court found that the qualification of
violence as ‘minor offences’ and the inadequate implementation of measures
and sanctions were not discriminatory.157 Second, it considered the particular
treatment of women by Turkish authorities, with police acting as mediators
convincing or helping victims to drop complaints, different from the ‘mere’
inaction in A. and Others. However, the Court should have asked the woman
question to inquire how the State’s actions affected Ms A. By remaining
inactive, the authorities conveyed that the violence against her was trivial and
unnecessary to investigate, and thus discriminated against her.158
Talpis v. Italy (2017)
Ms Talpis had been bruised, scratched, and ‘bitten in the face,’ and her
daughter who had tried to protect her mother, had also sustained bruising.159
Ms Talpis called the police for help but was not informed that she could file
a criminal complaint against her husband.160 Later, her husband attacked Ms
Talpis again with a knife. Intercepted by a police patrol, his knife was seized.161
Ms Talpis went to the hospital, where doctors confirmed that she had ‘suffered
from cranial trauma, a head injury, multiple abrasions to her body and a bruise
on her chest.’162 She then filed charges against her husband and temporarily
153 Ibid., paras 68–69, 73 and 78–79.
154 Ibid., para. 76.
155 Ibid., para. 104.
156 Ibid., para. 95.
157 Ibid., paras 96–103.
158 Balsan v. Romania (n 43) paras 80–82.
159 Talpis v. Italy (n 17) para. 10.
160 Ibid., paras 9–11.
161 Ibid., paras 13–15.
162 Ibid., para. 17.
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148 Conceptualizing femicide as a human rights violation
lived in a safe house. After she returned home, her husband attacked her again
with a kitchen knife, killing their son who had tried to protect his mother.163 Ms
Talpis escaped with several chest wounds. The domestic courts sentenced her
husband to life imprisonment for the murder of his son.164
The ECtHR found violations of Articles 2, 3, and 14 ECHR, since Italy had
failed to comply with its positive obligations to protect Ms Talpis and her son
from domestic violence. In relation to Article 2 ECHR, the Court found that
Ms Talpis’ son’s right to life was violated, but also found that Ms Talpis’ right
to life had been at risk and Article 2 ECHR had been breached, even though
she had remained alive.165 From the moment that Ms Talpis had filed a crimi-
nal complaint, the authorities knew of the danger to her life.166 Yet, they took
seven months to hear Ms Talpis’ claim and thereby ‘deprived the complaint of
any effectiveness, creating a situation of impunity conducive to the recurrence
of [the husband’s] acts of violence against his wife and family.’167 The Opuz
test was modified to the specific circumstances of domestic violence by Talpis:
[T]he risk of a real and immediate threat […] must be assessed taking due account
of the particular context of domestic violence. In such a situation it is not only
a question of an obligation to afford general protection to society, but above all to
take account of the recurrence of successive episodes of violence within the family
unit.168
This test recognizes the continuous nature of domestic and sexual violence,
as opposed to instant killings, so crucial for understanding state responsibility
of femicide. It also considers, albeit implicitly, the widespread situation of
domestic violence in Europe, and the systemic context of femicide.
Applying this standard, the ECtHR found Ms Talpis’ Article 3 ECHR rights
to be infringed, emphasizing that ‘special diligence is required in dealing with
domestic violence.’169 Citing the Istanbul Convention, the Court considered
that States have a duty to take ‘the necessary legislative or other measures to
ensure that investigations and judicial proceedings in relation to all forms of
violence covered by the scope of [the Istanbul] Convention are carried out
without undue delay.’170 Even though States can decide which measures to
take to protect women, they must take time-sensitive and result-oriented meas-
163 Ibid., paras 36–42.
164 Ibid., para. 46.
165 Ibid., para. 110.
166 Ibid., para. 111.
167 Ibid., para. 117.
168 Ibid., para. 122.
169 Ibid., para. 129.
170 Ibid.
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Femicide and the European human rights system
ures.171 The Court further stressed that, in cases of domestic violence, author-
ities must assess the victim’s ‘situation of extreme psychological, physical
and material insecurity and vulnerability and, with the utmost expedition.’172
Only half-heartedly the police reacted to Ms Talpis’ complaint on the night
of her son’s death.173 Seven months after her initial complaint, the authorities
had started criminal proceedings, which lasted over three years, during which
period Ms Talpis was further at risk contrary to Article 3 ECHR.174
Finally, Talpis once more advanced the ECtHR’s case law as it directly
referred to the Istanbul Convention. Moreover, it highlighted the systemic
context of widespread violence present in femicide, as it considered the
impunity in question, that ‘by underestimating, through their complacency,
the seriousness of the violent acts in question, the Italian authorities in effect
condoned them.’175 The Court thus seemingly contested the subtle underlying
assumptions or stereotypes that crimes against women are somehow less
important––seeing women and girls as second-class citizens. This progress
should be taken with caution, as Judges Eicke and Spano objected to the
classification of the domestic violence situation as widespread by the majority
judges.176 They referred to Rumor v. Italy, decided three years earlier, where
the Court had endorsed Italy’s domestic violence framework.177 They argued
that the situation in Italy had remained the same, and therefore, no systemic
gender-based violence could exist.178 While Judge Eicke may have been
correct in stating that (evidence on) the prevalence of domestic violence
did not change substantially between 2014 and 2017,179 this discrepancy
may be due to the well substantiated claim in Talpis, the composition of the
Talpis Chamber and the Court’s increased sensitivity to gender equality.
Nevertheless, the ECtHR’s first and only reference of the term ‘femicide,’
in the sense of ‘a large number of women [being] murdered by their partners
or former partners,’ shows sensitivity towards and potential for recognizing
femicide in the future.180
171 Ibid., para. 101.
172 Ibid., para. 130.
173 Ibid., paras 122–125.
174 Ibid., para. 129.
175 Ibid., para. 145.
176 Ibid., Judge Eicke Dissent, para. 19.b; Judge Spano Dissent, para. 18.
177 Ibid., Judge Eicke Dissent, para. 22; Judge Spano Dissent, para. 18, referring to
ECtHR, Rumor v. Italy, App No 72964/1024 (May 2014).
178 Talpis v. Italy (n 17), Judge Eicke Dissent, para. 19; Judge Spano Dissent, para.
18.
179 See ibid., Judge Eicke Dissent, paras 2 and 22.
180 Ibid., para. 145.
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150 Conceptualizing femicide as a human rights violation
Kurt v. Austria [GC] (2021)
Ms Kurt had been beaten and raped by her husband for years. She had paid his
debts resulting from gambling, but once she lost her job, she could no longer
do so. In 2010, she obtained a barring order against her husband, extending
to her own home and that of her parents. He was convicted for bodily harm
and making dangerous threats, and sentenced to three months’ imprisonment
(suspended for three years) in 2011.181 Ms Kurt filed for divorce in 2012.
Her husband threatened to take their children to Turkey. He also called her
a ‘whore’ and said he had the right to have sex with her, because she was
a woman. After he raped her, she went to the pharmacy to obtain contraception
as she was afraid of getting pregnant again. Ms Kurt and her children were
continuously beaten and threatened by her husband.182 His threats included
some of these phrases: ‘I will kill you,’ ‘I will kill our children in front of you,’
‘I will hurt your brother’s children if I am expelled to Turkey,’ and ‘I will
hang myself in front of your parents’ door.’183 She lodged another criminal
complaint against him, as a result of which criminal proceedings were initiated
against him and another protection order was issued.184 However, this protec-
tion order did not extend to her children’s school. The police officers found
no record of her husband possessing a weapon. The specialized police officers
who had taken her statements noted an increased risk of violence, based on (a)
known reported/unreported violent acts (not only currently, but also previous
incidents); (b) escalation (increase in the occurrence and seriousness of vio-
lence); (c) current stress factors (such as unemployment, divorce, separation
from partner/children, and so on); and (d) a strong tendency to trivialize/
deny violence (violence seen as a legitimate means).185 When questioned by
the police, her children, confirmed being slapped by their father. Ms Kurt’s
husband inquired with the police whether he could contact his children; upon
questioning he admitted having slapped them occasionally as an ‘educational
measure.’ The police noted in their report that he did not show any signs of
potential for aggression.186 Some days later, Ms Kurt’s husband went to her
children’s school and asked the teacher to speak with his eight-year-old son.
He shot and killed his son in the school’s basement; his daughter witnessed the
crime, but was left physically unharmed. The perpetrator left the school and
was found dead. A suicide note read that he loved his family and could not
181 Kurt v. Austria [GC] (n 15) paras 12–15.
182 Ibid., paras 16–20.
183 Ibid., para. 19.
184 Ibid., paras 27–30.
185 Ibid., para. 27.
186 Ibid., paras 33–34.
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Femicide and the European human rights system
live without them.187 Another parent, the teacher and a social worker had never
thought he would be capable of harming his children; they described him as
‘calm and polite’ and ‘friendly and courteous.’188
The case incited much international attention as the first Grand Chamber
[GC] case on domestic violence. While the facts of the case do not concern
a ‘terrible family drama,’189 which would severely undermine the systemic
aspect of femicide, the characterizing impunity was less pronounced in Kurt,
as the authorities had reacted promptly to her criminal complaints. From
a strategic litigation point of view, another more clear-cut case might have led
to a better result for the recognition of domestic violence as a human rights
violation. Kurt is nevertheless noteworthy for its explicit reference to many
provisions of the Istanbul Convention, it being the first time the Court relied
so heavily on these standards. However, as I will explain, despite the Court’s
gender sensitivity in outlining the novel domestic violence standards, it can
still advance the recognition of femicide by (1) developing the role of ‘second-
ary’ victims, often family members, (2) its understanding of domestic violence
as gendered by considering this violence under the non-discrimination provi-
sion, and (3) specifically requiring CoE Member States to adopt standardized
risk assessment tools, which take account of intersectional discrimination and
socio-economic circumstances, for example.
Ms Kurt argued that her husband should have been taken into pre-trial
detention as she had specifically mentioned that their children were at risk. She
also considered Austria’s domestic law framework insufficient, as the barring
orders could not be extended to the school.190 However, the majority of ten out
of 17 judges rejected this claim, considering that the domestic authorities had
done enough to protect Ms Kurt’s son’s right to life. They had reacted imme-
diately to her complaints and had conducted a comprehensive risk assessment
against the background of the dynamics of domestic violence. They had
examined his previous convictions, protection orders, records of firearms,
stress factors, domestic violence history, etc.191 The majority concluded that
no risk for her children could have been discerned, ‘let alone a lethality risk’
at the school, even in the opinion of the applicant, as the majority stressed.192
The Court admitted that the violence and death threats against the children had
187 Ibid., paras 35–39.
188 Ibid.
189 Stephanos Stavros, ‘Kurt v Austria: ECHR Positive Obligations Without
a Coercive Sting?’ OxHRH Blog (5 August 2021), https:// ohrh .law .ox .ac .uk/ kurt -v
-austria -echr -positive -obligations -without -a -coercive -sting/ .
190 Kurt v. Austria [GC] (n 15) paras 102–103.
191 Ibid., paras 195–202.
192 Ibid., para. 206.
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152 Conceptualizing femicide as a human rights violation
been known to the State, and the risk for the children had not been evaluated.
However, the main target was Ms Kurt, rather than her children, who were tar-
geted indirectly, by way of their mother, and the barring order had been issued
by police officers trained in domestic violence.193 In this light, the majority
endorsed the domestic authorities’ decision not to order pre-trial detention for
the perpetrator.194 Having requalified her claims raised under Articles 3 (free
from inhumane treatment) and Article 8 (the right to private and family life)
as falling under Article 2 (the right to life), the Court did not consider these
Articles––or Article 14 (non-discrimination) either, which claim it deemed
inadmissible.195
Nevertheless, Kurt made important contributions to state responsibility for
domestic violence. Considering its findings in Talpis that the circumstances of
domestic violence must be considered in the risk assessment, the Court clari-
fied its understanding of the operative measures, that is, the required response
to domestic violence. First, it reiterated that any response to domestic violence
must be ‘immediate,’ and conducted with ‘special diligence.’196 Examining the
risk assessment for domestic violence, the Court referred to Article 51 Istanbul
Convention, which states that the lethality risk, the seriousness of the situation
and the risk of repeated violence are crucial elements in any such assessment.197
One issue concerning risk assessment is the Court’s apropos mention of the
importance of standardized risk assessments, such as the Spousal Assault
Risk Assessment (SARA), the Dynamic Risk Analysis System (DyriAs), and
others.198 Such standardized assessment tools provide the authorities with
clear-cut criteria, e.g., on possession of weapons, children, previous history
of assault, etc., on how to assess risks of domestic violence.199 The Court only
required risk assessments to be ‘autonomous, proactive, and comprehensive’
(see below), and noted that ‘the use of standardized checklists, which indicate
specific risk factors and have been developed based on sound criminological
research and best practices in domestic violence cases, can contribute to the
comprehensiveness of the authorities’ risk assessment.’200 By themselves,
these standards are important steps in the recognition of domestic violence in
193 Ibid., paras 203–204.
194 Ibid., para. 207.
195 Ibid., paras 104 and 214–215.
196 Ibid., paras 165–166.
197 Ibid., para. 167.
198 Ibid., para. 101.
199 See European Institute for Gender-based Violence (EIGE), ‘Risk Assessment
and Management of Intimate Partner Violence in the EU’ (2019) https:// eige .europa .eu/
publications/ risk -assessment -and -management -intimate -partner -violence -eu.
200 Kurt v. Austria [GC] (n 15) para. 171.
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Femicide and the European human rights system
international law. Many States already had standardized risk assessment tools
in place. Austria in particular had no standardized risk assessment, but the
authorities had used a checklist to evaluate the risk of lethal violence to Ms
Kurt and her children.201 Contrary to the dissenting judges who agreed with the
majority that standardized risk assessments were not required under the Osman
test, standardized questions can counter implicit bias, by requiring police to
ask all women and girls the same questions regardless of their migration or
socio-economic status, and should be mandatory under the Osman test, so as
to take account of the specificities of domestic violence.202
Concerning the well-established ‘immediacy’ requirement of the Osman
test, the Court cautioned that the term ‘immediate’ cannot be precisely
defined. At the same time, it clarified that ‘immediacy’ required considering
the circumstances of domestic violence, characterized by ‘consecutive cycles
of domestic violence, often with an increase in frequency, intensity and
danger over time.’203 The Court noted that, in line with its previous case law,
a record of domestic violence could cause a ‘significant risk and possibly
deadly violence,’ and could therefore constitute ‘immediate’ violence.204 It
did not advance any new standards here, but considered that it had applied the
immediate risk standard flexibly, ‘taking into account the common trajectory
of escalation in domestic violence cases, even if the exact time and place of
an attack could not be predicted.’205 In this sense, the Court seems to have
recognized the continuous nature of an individual act of domestic violence.206
Applying this standard to Ms Kurt’s case, the Court found that, unlike in other
domestic violence cases, the authorities had responded immediately to her
criminal complaints, and even had a checklist based on which they conducted
a risk assessment.207
That domestic violence risk assessments must be ‘autonomous, proactive
and comprehensive’ advances the ECtHR’s case law in domestic violence.208
The Court explained that the terms ‘autonomous’ and ‘proactive’ require
the domestic authorities to take the victim’s perception of the domestic
violence risk only ‘as a starting-point.’ Accordingly, they should not rely
on a withdrawal or change of her complaint to halt criminal proceedings
201 Ibid., para. 191.
202 Ibid., Dissenting Opinion of Judges Turkovic, Lemmens, Harutyunyan, Elósegui,
Felici, Pavli, and Yüksel, para. 10.
203 Ibid., para. 175.
204 Ibid.
205 Ibid., para. 176.
206 Ibid.
207 Ibid., paras 191–194.
208 Ibid., para. 168.
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154 Conceptualizing femicide as a human rights violation
against a perpetrator.209 Instead, the domestic authorities should carry out
their own assessment, ‘proactively collecting and assessing information on all
relevant risk factors and elements of the case.’210 This clarification combats
‘victim-blaming’ through which the victim is held responsible for how she
reacted to domestic violence. The responsibility is now laid upon the State.
Furthermore, the Court––though cautiously––set out the ideal conditions for
a comprehensive risk assessment as (1) well-trained law-enforcement officials
trained in understanding the dynamics of domestic violence, and (2) use of sys-
tematic checklists.211 The majority argued that the police officers who handled
Ms Kurt’s case and conducted the relevant risk assessment had ‘significant
relevant experience and training […], which the Court should be careful not
to question in a facile manner with the benefit of hindsight.’212 The Court’s
reference to the ‘benefit of hindsight’ seems to have been used as an excuse
not to fully scrutinize the risk having been present of her children becoming
victims of domestic violence.
At the same time, the Court disregarded the insidious nature of abuse in
domestic violence, accompanied by threats and violence to the loved ones of
the ‘main’ victim in order to hurt her.213 Evidently, Austria’s risk assessment
was flawed with respect to children as secondary victims, which point was also
raised by the dissenting judges.214 The Court’s approach almost seems contra-
dictory in the way it navigates the progressive general principles and its ulti-
mate rejection of the case. At first, the Court carefully showed that, whenever
children are involved, the child protection authorities and educational facilities
‘should be informed,’ and that teaching perpetrators about non-violence was
‘desirable.’215 It surprisingly refrained from imposing any obligations on
Austria in this regard. Had the Court only applied a gender perspective, and
asked what usually happened in domestic violence cases, the outcome might
have been different. Indeed, the victim’s close relatives, especially her chil-
209 Ibid., para. 169. See also Valiulienė v. Lithuania (n 68) para. 69; ECtHR, T.M.
and C.M. v. the Republic of Moldova, App No 26608/11 (28 January 2014) para. 46;
Talpis v. Italy (n 17), paras 107–125; Opuz v. Turkey (n 21) para. 153.
210 Kurt v. Austria [GC] (n 15) para. 170.
211 Ibid., paras 172–173.
212 Ibid., para. 204.
213 Lisa Maria Weinberger, ‘Kurt v. Austria: A Missed Chance to tackle
Intersectional Discrimination and Gender-Based Stereotyping in Domestic Violence
Cases’ Strasbourg Observers (18 August 2021), https:// strasbourgobservers .com/
2021/ 08/ 18/ kurt -v -austria -a -missed -chance -to -tackle -intersectional -discrimination
-and -gender -based -stereotyping -in -domestic -violence -cases/ .
214 Kurt v. Austria [GC] (n 15), Dissenting Opinion of Judges Turkovic, Lemmens,
Harutyunyan, Elósegui, Felici, Pavli, and Yüksel, para. 9.
215 Kurt v. Austria [GC] (n 15) paras 180–181.
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Femicide and the European human rights system
dren, are also at risk in femicide.216 The Court’s assessment that the children
had not been at risk at the school disregards the fact that children are often
used as pawns to harm women in domestic violence cases. It might have found
that a barring order must extend to schools to protect her children and other
close relatives, especially since the domestic authorities extended a protection
order to her parents’ house. As its findings in Opuz suggest, the Court should
have understood that family members, such as the mother of a woman in an
abusive relationship, can be targeted.217 Moreover, as the dissenting judges
rightly note, ‘children who are victims of domestic violence are particularly
vulnerable individuals and entitled to State protection against serious breaches
of personal integrity.’218 In connection to this, the Court should have ordered
pre-trial detention for Ms Kurt’s husband in light of his record of previous
violence, the only measure that can adequately protect women and girls.219
Admittedly, the notorious margin of appreciation somewhat limits the Court’s
ability to affect change in domestic contexts. This should nevertheless not be
misused to undermine survivor’s rights.
Moreover, the Court ignored the Article 14 ECHR claim. Admittedly, the
applicant had raised this issue too late, making her claim miss the six-month
time limit. In this case, and since the Grand Chamber had the opportunity to
deal with its first domestic violence case, it would have been pertinent for
the Court to regard the Article 14 claim on its own motion. Since domestic
violence is always gendered, the Court should have discussed this claim; not
doing so sent a message that domestic violence is not understood in its reality.
This would contrast with the Court’s apparent recognition of the nature of
domestic violence as gendered, and therefore indirectly as a problem of ine-
quality. It appears that this omission was one of convenience, as the Court had
indeed not hesitated to deal with her claims regarding Articles 3 and 8 under
Article 2 alone. For clarity, the Court should always mention any substantive
article alongside the non-discrimination provision.
The Court framed domestic violence in terms of lethal risk alone, which
obscures the many human rights violations inherent in femicide. Considering
that domestic violence risks of women and girls do not always result in death,
the Court ought to have examined whether ‘slow-death’ or ongoing risk of vio-
lation of their rights––e.g., to be free from torture––might not have warranted
216 See, e.g., CEDAW Committee, Angela Gonzalez Carreño v. Spain, paras
9.2–9.4.
217 See Opuz v. Turkey (n 21) para. 183.
218 Kurt v. Austria [GC] (n 15) Dissenting opinion of Judges Turkovic, Lemmens,
Harutyunyan, Elósegui, Felici, Pavli, and Yüksel, para. 12; Opuz v. Turkey (n 21) para.
159, ECHR 2009; Talpis v. Italy (n 17) para. 99 and Volodina v. Russia (n 36) para. 72.
219 See Kurt v. Austria [GC] (n 15) paras 207 and 210.
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156 Conceptualizing femicide as a human rights violation
the extension of the barring order to the school. By failing to do so, despite the
applicant’s Article 3 and 8 claims, the Court overlooked the non-lethal risks of
femicide to which women and girls are subjected.
Finally, the Court still fails to pay attention to the intersectional ways in
which women and girls suffer from violence. The Court should clearly require
States to adopt standardized risk assessment tools under Osman. This would
be supported by its findings that most CoE States already use standardized
domestic violence risk assessments. Standardized questions could help reveal
a woman’s personal circumstances––Ms Kurt was an Austrian citizen of
Turkish origin—such as her educational background, which influence how she
is subjected to violence.220 Moreover, as Weinberger points out, ‘her experi-
ence with the police cannot simply be equated to that of a (White) woman born
in Austria.’221 Judge Elósegui also noted that Ms Kurt had reported the criminal
acts with the help of a German translator.222 That Ms Kurt was targeted differ-
ently as a migrant woman can be observed in her husband’s explanation to the
police that he had not raped her, as Turkish women typically ‘played hard to
get,’ an issue the Court failed to discuss.223
In sum, the case presents a major step forward in terms of the progressive
principles with regard to the required risk assessment. Equally important,
the consideration of the immediacy requirement suggests that the Court is
willing to display gender sensitivity towards domestic violence in the future.
However, the Court does not yet consider the widespread nature of domestic
violence to influence that risk. The Court still does not fully see domestic
violence as a compounded human rights violation, affecting the victim and her
loved ones. As regards its inattention to her children’s situation, the Court was
negligent in not finding any international responsibility for Austria in this case.
SEXUAL TORTURE?
The terms sexual violence and rape are not defined under the Convention, but
the ECtHR clarified that physical resistance is not part of the definition of rape
and that non-consent lies at the core of the crime of rape. Currently, rape and
sexual violence committed by State actors can well constitute torture in line
with the Court’s case law, whereas the same acts committed by private actors
cannot. This reveals the Court’s implicit bias towards women’s experiences
of violence. Arguably, it also shows that the applicants have yet to make clear
220 See also ibid., Dissenting Opinion of Judge Elósegui, para. 10.
221 Weinberger (n 213).
222 Kurt v. Austria [GC] (n 15), Dissenting Opinion of Judge Elósegui, paras 8–9.
223 See Kurt v. Austria [GC] (n 15) para. 28.
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Femicide and the European human rights system
claims to the effect that rape is torture, as the Court often considers itself bound
by the scope of their complaints. Already in the 1990s, feminist legal scholars
like Charlesworth, Chinkin and Wright, and also MacKinnon, called for rape
to be classified as torture.224 Such a classification matters because a ‘special
stigma’ is attached to the prohibition of torture, and it is a jus cogens violation
from which no derogation is permitted.225
By State Actors
Aydin v. Turkey (1997)
Şükran Aydin, a 17-year old of Kurdish origin, was arrested and detained
along with some of her family in the context of clashes between the Turkish
security forces and members of the Kurdistan Workers’ Party (PKK).226
During her detention, members of the security forces ‘put her into a car tyre
and spun [her] round and round,’ then forced her to remain naked and raped
her.227 After her release, Şükran lodged a complaint about her treatment in
detention. Two doctors concluded that her hymen had been torn and that her
thighs were bruised extensively. However, the doctors failed to draw any
conclusions on the bruising and were said to be unable to establish whether
she had been raped.228 The ECtHR found that the acts of physical and mental
violence inflicted on Şükran, including the rape, amounted to torture (Art. 3
ECHR). The Court also held that her claims were not effectively investigated
in violation of her right to an effective remedy (Art. 13 ECHR).229
The Court found that as ‘the especially cruel act of rape’ was committed
against a young woman, the treatment met the required threshold for torture.230
The Court stated that the prohibition of torture allows for no exceptions and
no derogation as ‘the special stigma of “torture”’ is attached only to treatment
‘causing very serious and cruel suffering.’231 Such suffering was found to have
existed in Şükran’s case as ‘rape leaves deep psychological scars on the victim
which do not respond to the passage of time as quickly as other forms of physi-
cal and mental violence. The applicant also experienced the acute physical pain
224 Hilary Charlesworth, Christine Chinkin and Shelley Wright, ‘Feminist
Approaches to International Law’ (1991) 85(4) The American Journal of International
Law 613–645 at 629–632.
225 ECtHR, Afet Süreyya Eren v. Turkey, App No 36617/07 (20 October 2015), para.
82. See Art. 42 Draft Articles.
226 Aydin v. Turkey (n 21) paras 16–19.
227 Ibid., para. 20.
228 Ibid., paras 24–26.
229 Ibid., paras 103 and 109.
230 Ibid., para. 84.
231 Ibid., para. 82.
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158 Conceptualizing femicide as a human rights violation
of forced penetration, which must have left her feeling debased and violated
both physically and emotionally.’232 As to the prohibited purpose required
in torture, the Court noted that rape, along with other suffering inflicted on
Şükran during her detention, was intended to elicit information in the context
of a tense security situation in Turkey.233 While it is commendable that the
ECtHR recognized that rape constituted torture, it may have overlooked the
sexual aspect of torture and instead focused on the non-sexual ill-treatment.234
In this sense, the Court did not query whether rape is committed for discrim-
inatory purposes, namely to dominate Şükran or lower her position in society
as a Kurdish woman. Finally, the ECtHR signaled that rape is particularly
appalling in state custody where the victim relies on state mechanisms and is
vulnerable with ‘weakened resistance.’235 However, would rape committed by
someone the victim loved and trusted not be just as reprehensible and make the
harm similarly grievous?
The ECtHR also considered that Turkey had breached Articles 3 and 13
ECHR as the prosecutor failed to investigate her rape and establish the facts
promptly.236 The Court considered the fact that the Prosecutor had deferred
to the security forces, whose members had raped her, a ‘particularly serious’
issue. The medical examination was also found deficient, as it should have
been carried out by medical professionals with experience in rape cases.237
The Court seems to have used a gender perspective, ‘an analytical category
for interrogating the unarticulated assumptions of the international legal
regime.’238 It required the authorities to be attentive to potential rape allega-
tions: ‘[The obligation to investigate] also implies that the victim be examined,
with all appropriate sensitivity, by medical professionals with particular com-
petence in this area and whose independence is not circumscribed by instruc-
tions given by the prosecuting authority as to the scope of the examination.’239
Finally, since Ms Aydin’s rape allegations were not taken seriously, she had
no recourse to any other potential remedy, let alone compensation for these
violations.
232 Ibid., para. 83.
233 Ibid., para. 85.
234 Ibid., paras 87–88.
235 Ibid., para. 83.
236 Ibid., paras 103 and 109.
237 Ibid., para. 106.
238 Ratna Kapur, ‘Gender, Sovereignty and the Rise of Sexual Security Regime in
International Law and Postcolonial India’ (2013) 14 Melbourne Journal of International
Law 317–345 at 340.
239 Aydin v. Turkey (n 21) para. 107.
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Femicide and the European human rights system
Afet Süreyya Eren v. Turkey (2016)
Ms Eren was arrested on the presumption that she was a member of a terrorist
organization.240 In state custody, over a period of four days, she was hung
by her arms and upside-down, stripped naked in the presence of her sister,
sexually harassed, and threatened with rape.241 Two prison doctors confirmed
that her body was bruised and scratched, showing signs of swelling and other
injuries.242 Ms Eren complained about her ill-treatment to Turkish authorities.
However, the proceedings were so arduous and prolonged that her complaint
was dismissed as time-barred after seven years.243 The ECtHR found that the
State is presumed responsible for any ill-treatment in state custody, holding
that she had been subjected to torture under Article 3 ECHR while she was
detained.244
The ECtHR found that Ms Eren was tortured to extract information about
her potential link to a terrorist organization. However, the Court did not discuss
Ms Eren’s claim that she was sexually harassed, subjected to forced nudity,
and threatened with rape, presumably since these acts were not reflected in
her medical report. The Court simply noted that she had raised the latter issues
later than other complaints.245 The Court should have considered that forced
nudity, even without involving physical assault, is a traumatic experience, and
constitutes sexual violence, as has been established by the IACtHR.246
Since the case was discontinued for being time-barred,247 the Court empha-
sized that the proceedings were unduly delayed in violation of the procedural
limb of Article 3 ECHR.248 An adequate investigation requires national author-
ities to examine alleged ill-treatment when the claim is ‘arguable’ and ‘raise[s]
reasonable suspicion.’ At the very least, the investigation must be ‘independ-
ent, impartial and subject to public scrutiny,’ as well as prompt.249 Although
this analysis does not reflect any gender-sensitivity of how women are affected
by sexual violence, the case at least implicitly seems to have included sexual
violence in the torture qualification.
240 Eren v. Turkey (n 225) para. 6.
241 Ibid., paras 12 and 17.
242 Ibid., paras 7–9.
243 Ibid., paras 12–19.
244 Ibid., para. 35.
245 Ibid., para. 34.
246 Women Victims of Sexual Torture in Atenco v. Mexico, Preliminary Objections,
Merits, Reparations, and Costs, Inter-American Court of Human Rights Series C No
371 (20 November 2018), paras 181 and 208.
247 Eren v. Turkey (n 225) para. 42.
248 Ibid., paras 42–47.
249 Ibid., para. 39.
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160 Conceptualizing femicide as a human rights violation
By Non-State Actors
The ECtHR’s case law on sexual violence committed by private actors shows
a sharp contrast and inconsistency with its approach to rape as torture when
such acts are committed by state actors. The Court generally examines rape
committed by private actors under both Articles 3 and 8 ECHR. However, the
ECtHR does not specify whether rape constitutes ill-treatment, degrading or
inhuman treatment, or torture, thus overlooking the specific harm women and
girls suffer when they are raped.250
M.C. v. Bulgaria (2004)
M.C. was raped twice by two acquaintances when she was 14 years old, the
legal consent age for sexual intercourse in Bulgaria. At a disco bar, M.C. had
met a group of men, one of whom was her classmate’s elder brother. They
offered to take her to another party and then drive her home. On their way,
the men suggested stopping for a swim; M.C. opted to remain in the car. One
of the assailants returned to the car, started to kiss her, pressed her against the
car seat, and raped her.251 Subsequently, the three men drove M.C. to a private
house where her classmate’s brother pushed her onto a bed and proceeded to
rape her as well.252 The next morning, M.C.’s mother found her at an assail-
ant’s house. M.C. immediately told her mother that she had been raped by her
classmate’s brother, upon hearing of which her mother took her to the local
hospital where forensic doctors established that her hymen had been torn.253
Over the next few days, M.C., influenced by living in a small conservative
village, felt ashamed that she had ‘failed to protect her virginity’ and feared
‘what people would say about it.’254 Her mother initially thought that having
M.C. marry her assailant would be an adequate solution;255 After learning that
she had been raped by two different assailants, however, her parents filed
a criminal complaint with the authorities.256
An investigation was opened, with the perpetrators being arrested but
then released on arguing that the sexual intercourse had been consensual.257
Although M.C. had cried, she had not called for help or otherwise physically
resisted. At the time, Bulgarian law required the use of force or threats as an
250 See Sjöholm (n 16) 240.
251 M.C. v. Bulgaria (n 24) paras 16–18.
252 Ibid., paras 28–30.
253 Ibid., paras 32–36.
254 Ibid., para. 37.
255 Ibid., para. 38.
256 Ibid., para. 42.
257 Ibid., para. 44.
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element of rape.258 Hence, the state authorities concluded that the sexual inter-
course did not amount to rape, and consequently did not bring any charges or
prosecute the perpetrators despite the forensic expert’s opinion that she might
have been raped. The ECtHR found that, by not properly investigating her rape
allegation, Bulgarian authorities failed to provide effective protection against
rape and sexual abuse, breaching its positive obligations under Articles 3 and
8 ECHR.259 The ECtHR was specific in what measures it expected States to
undertake to prevent rapes: ‘[E]ffective deterrence against grave acts such as
rape […] requires efficient criminal-law provisions. Children and other vulner-
able individuals, in particular, are entitled to effective protection.’260
Bulgaria’s rape definition contained the use of force, rather than lack of
consent as the defining element. The Court surveyed the legislation of CoE
Member States to pertinently note ‘that the Convention is first and foremost
a system for the protection of human rights’ and that therefore ‘the Court
must have regard to the changing conditions within States and respond, for
example, to any evolving convergence as to the standards to be achieved.’261
The ECtHR noted that requirements of physical resistance had been steadily
abandoned across Europe.262 Moreover, expert opinions at the time already
established that the frozen-fright syndrome––where a victim may freeze in
response to a threat––is typical among young girls when they are raped. The
Court further noted that underage victims often do not physically resist acts
of violence because they are either afraid or under mental pressure. Focusing
on the victim’s sexual autonomy, the Court held that Articles 8 and 3 ECHR
require non-consent, not physical resistance, as the defining criminal element
of rape.263 Assessing the International Criminal Tribunal for the former
Yugoslavia (ICTY)’s rape definition adopted in Kunarac, which interprets
consent in the light of the coercive circumstances, the ECtHR recognized
‘a universal trend towards regarding lack of consent as the essential element of
rape and sexual abuse.’264
Moreover, the Court emphasized the crucial need to implement criminal law
provisions and prosecute sexual violence:
[A]ny rigid approach to the prosecution of sexual offences, such as requiring proof
of physical resistance in all circumstances, risks leaving certain types of rape
258 Ibid., para. 74.
259 Ibid., para. 187.
260 Ibid., para. 150.
261 Ibid., para. 155.
262 Ibid., para. 156.
263 Ibid., para. 166.
264 Ibid., para. 163.
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162 Conceptualizing femicide as a human rights violation
unpunished and thus jeopardising the effective protection of the individual's sexual
autonomy.265
The ECtHR found the State’s investigation flawed on several counts. First,
the authorities had failed to undertake a ‘context-sensitive assessment of the
credibility of the statements.’266 They failed to hear witnesses, including the
victim and the perpetrators, to establish the specific events and verify the
facts.267 Another issue was the state authorities’ attitude towards the crime:
Notably, the authorities failed to investigate the facts because they considered
it ‘date rape,’ in the absence of calls for help and physical resistance.268 A third
concern of the Court was the prosecution’s focus on the victim’s resistance as
an element of rape.269 Once satisfied that she had not resisted, the prosecution
did not consider that she might not have consented to the acts.270 The victim’s
young age and her psychological state as a rape victim should have been con-
sidered by state authorities.271 Instead, the Prosecutor neglected these factors,
arguing that:
it is unusual for a girl who is under age and a virgin to have sexual intercourse twice
within a short space of time with two different people, but this fact alone is insuffi-
cient to establish that a criminal act took place, in the absence of other evidence and
in view of the impossibility of collecting further evidence.272
The Court concluded that the State had failed to comply with its positive obli-
gations to implement a criminal law system punishing rape and other sexual
abuses, thereby violating Articles 3 and 8 ECHR.273
E.B. v. Romania (2019)
In E.B. v. Romania, the applicant was walking home from work when a man
approached her and tried to engage in conversation. Initially, he asked her
to perform oral sex in return for money and a mobile phone, an offer which
she politely declined.274 Threatening her with a knife, he then pulled E.B. to
a nearby cemetery where he ordered her to undress. When she had obeyed
265 Ibid., para. 166.
266 Ibid., para. 177.
267 Ibid., para. 177.
268 Ibid., para. 179.
269 Ibid., para. 182.
270 Ibid., para. 180.
271 Ibid., para. 183.
272 Ibid., para. 65.
273 Ibid., para. 187.
274 E.B. v. Romania (n 82) paras 8–9.
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him, he raped her.275 Immediately after her rape, E.B. tried to file a complaint
but could not do so because the police station was closed. She filed a criminal
complaint the next day. The police encouraged her to withdraw the complaint,
citing a lack of witnesses and stating that ‘“she was asking for it” and, in
any event, “it did her good.”’276 The state authorities interrogated the alleged
perpetrator, who had previous rape convictions. Since he argued that E.B. had
consented to the sexual intercourse, and she did not physically resist or call
for help, the prosecution did not further investigate her rape claim despite the
existence of a medical report certifying that she had sustained bruises on her
arms.277 The Court found a violation of both Articles 3 and 8 ECHR because
the authorities had failed to effectively apply the criminal law system to punish
acts of rape and sexual violence.278
The Court outlined states’ due diligence obligation to prevent ill-treatment
by private individuals and to secure victims’ rights under Article 3 ECHR
coupled with Article 1 ECHR.279 In this brief judgment, the Court echoed its
M.C. precedent, stating that rape must be criminalized, notwithstanding States’
margin of appreciation; non-consent—instead of physical resistance—should
be the key element to determine rape; alleged rape cases must be duly investi-
gated; perpetrators must be brought to justice.280 Accordingly, the Court’s clear
stance against requirements of physical resistance is now embedded in its case
law, as it opposes ‘any rigid approach to the prosecution of sexual offences.’281
The domestic authorities also failed to adequately resolve the conflicting
accounts of the facts.282 Although it did not directly invoke the Istanbul
Convention, the ECtHR noted that Romania had failed to take protec-
tive measures—including protection from intimidation, retaliation, and vic-
timization—and that its reaction to the applicant’s complaint was ‘inconsistent
with international standards.’283 Unlike in M.C., where the Court generally
stated that ‘the investigation and the conclusion must be centred on the issue of
non-consent,’ in E.B., the Court proposed concrete steps which the domestic
authorities could have undertaken to clarify the facts284––e.g., interrogation
of the applicant and the alleged perpetrator’s friends and relatives, a special
275 Ibid., para. 10.
276 Ibid., paras 11–12.23.
277 Ibid., paras 14–15 and 25.
278 Ibid., para. 68.
279 Ibid., para. 53.
280 Ibid., paras 54–55. See also M.C. v. Bulgaria (n 24) para. 153.
281 E.B. v. Romania (n 82) para. 56.
282 Ibid., para. 57.
283 Ibid., paras 55–56. See Prosecutor v. Kunarac et al. (Appeals Judgment)
ICTY-96-23 and 23/1 (12 June 2002) 132.
284 M.C. v. Bulgaria (n 24) para. 181.
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164 Conceptualizing femicide as a human rights violation
report by a specialized psychologist, or an investigation into potential reasons
why the applicant would make false statements against the alleged perpetra-
tor.285 The ECtHR noted that the State should have considered her ability to
consent in the light of her rape near a graveyard in the evening, a particularly
intimidating context.286 The Court also criticized Romania for not considering
E.B.’s fear of being harmed again by her assailant and for failing to issue the
requested protection measures for E.B. and her family.287 The Court did not go
as far as stating that coercive circumstances make consent impossible, as in
Kunarac, but at least it alluded to this possibility.288
CONCLUDING REMARKS
The human rights protected under the ECHR are entrenched in the liberal
tradition of the State, chiefly aimed at the restriction of state powers vis-à-vis
individuals.289 Originally, this meant that individuals’ rights were primarily
protected from State intrusion.290 With this in mind, the Court’s implicit
requirement of state actors’ presence in torture is understandable.291
On the one hand, the Court considers sexual violence as torture when com-
mitted in prisons. On the other hand, when rape is committed by private actors,
it views it as other ill-treatment. Sexual violence and domestic violence alike
should be considered as torture in all circumstances, whenever the criteria
are met. A first step could be that the Court identify the specific acts at issue
as torture under Article 3 ECHR (at present, the Court applies Art. 3 without
specifying the violence at stake). As a second step, the Court ought to extend
to private situations its Aydin conclusion that rape in prison is torture, rape
at home being as harmful as rape committed in state settings.292 Qualified as
torture, rape is a serious human rights violation, which would attract high com-
pensation.293 To do so, the Court might make further reference to the Istanbul
285 E.B. v. Romania (n 82) para. 58.
286 Ibid., para. 60.
287 Ibid., para. 66.
288 Ibid., para. 60.
289 Celina Romany, ‘Women as Aliens: A Feminist Critique of the Public/Private
Distinction in International Human Rights Law’ (1993) 6 Harvard Human Rights
Journal 87–125 at 89.
290 McQuigg (n 116) 21; Romany, ibid.
291 McQuigg, ibid.
292 Catharine MacKinnon, Are Women Human? And Other International Dialogues
(Harvard University Press 2007) 17.
293 See Art. 41 ECHR; Caroline Bettinger-Lopez, ‘Violence Against Women:
Normative Developments in the Inter-American Human Rights System’ in Jackie Jones
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Femicide and the European human rights system
Convention and international reports, such as the UN Special Rapporteur on
Torture’s contribution to domestic violence as torture.294
The Court also has the potential to apply Article 14 of the Convention more
consistently, as it has only responded to gendered harm in some domestic
violence cases up till now.295 Even though Article 14 ECHR is a complex pro-
vision, the Court should properly acknowledge gendered harm even in cases
of sexual violence. The next obstacle to adjudicating Article 14 is that, when
it does consider harm as gender based, the Court usually requires statistics and
reports as proof that mainly women and girls are targeted. Given the challenges
applicants face in adducing these official statistics, the Court could consider
statistics and reports to assert the prevalence and breadth of femicide on its
own motion. Moreover, the Court might simply ask States to collaborate, and
provide the necessary information.
The ECtHR now regularly requires States to prevent human rights violations
by private individuals,296 applying its Osman standard to consider whether
a State complied with its preventive duties, that is, whether it ‘knew or ought
to have known’ of a ‘real and immediate risk’ to the rights of an individu-
al.297 According to the Court’s case law, state authorities are aware of a risk
to victims’ rights if the latter filed police reports, or otherwise brought the
situation to the former’s attention. However, acid attacks on the streets of an
Albanian city are seemingly random and threats thereof cannot be reported to
the police in advance. In its current Osman interpretation, the Court can there-
fore only consider the case under a provision’s procedural limb, if at all.298 The
Court has expanded its understanding of how the ‘immediacy’ standard should
be examined in line with domestic violence risk assessments, and that States’
responses must be expedient. States should take the Court’s conclusion further
and consider that any complaint should be responded to by ordering pre-trial
detention for perpetrators with an established record of violence.
The measures required to prevent violence under Articles 3 and 8 ECHR
encompass two obligations. States’ positive obligation involves their duty to
enact an adequate legal framework, that is, domestic provisions effectively
criminalizing rape in terms of non-consent, rather than physical resistance,
and Rashida Manjoo (eds), The Legal Protection of Women from Violence (Routledge
2018) 181.
294 UNGA, Relevance of the Prohibition of Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment to the Context of Domestic Violence (12 July
2019) UN Doc A/74/148, paras 10, 25, 31, 34 and 36.
295 Sjöholm (n 16) 19 and 241.
296 Art. 1 ECHR. See e.g., M.C. v. Bulgaria (n 24), para. 149.
297 Osman v. UK (n 97) paras 128–130.
298 See ECtHR, Tershana v. Albania, App No 48756/14 (4 August 2020).
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166 Conceptualizing femicide as a human rights violation
and to have a ‘toolbox of legal and operational measures’ available to respond
to domestic violence.299 The Court already progressively defines domestic
violence in terms of its recurring nature and considers non-consent, not phys-
ical resistance, to be the core of rape definitions. However, it should examine
in-depth how consent plays out in contexts of unequal power relations and with
regard to vulnerable individuals, such as minors and disabled people.
The second obligation is that States must implement this framework through
effective investigation and prosecution. According to the ECtHR, this means
that victims in domestic violence cases can file complaints with the state
authorities who must take any reports of violence seriously; this may require
the adequate training of law enforcement officers.300 Overall, these measures
must be effective—i.e., capable of leading to a result—in addition to allowing
for reparation and redress. The Court should more consistently require that
police adopt a gender perspective in the processing of rape allegations,301
encouraging them to be less concerned with gender stereotypes and let go of
their bias. Often, the Court does not analyze the bias in the police response at
all, a considerable shortcoming in its case law.
299 X and Y v. the Netherlands (n 24), para. 27; M.C. v. Bulgaria (n 24), paras 150,
185; Kurt v. Austria [GC] (n 15) para. 179.
300 See Kurt v. Austria [GC] (n 15) para. 172.
301 See also Sjöholm (n 16) 169.
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7. Femicide and the inter-American
human rights system
It is as though your life is not worth anything. They rape. There is no limit. There is
no authority. There is no one to stop them.
Lana1
INTRODUCTION
Established in 1948, the Organization of American States (OAS) is the
oldest regional human rights agency. Currently, 35 North, South, and Central
American nations are OAS Member States.2 The OAS adopted the American
Declaration on the Rights and Duties of Man (American Declaration)––a safe-
guard of many civil and political rights as well as cultural, economic, and
social rights––a few months before the United Nations General Assembly
(UNGA) adopted the Universal Declaration of Human Rights (UDHR).
The American Declaration is especially relevant for cases brought against
OAS Member States, like the United States (US) and Canada, which are not
signatories to the American Convention on Human Rights (ACHR), adopted
in 1969.3 The Inter-American Commission on Human Rights (IACHR) and
the Inter-American Court of Human Rights (IACtHR) are the fora for human
rights adjudication in the Inter-American context. Created in 1959, the IACHR
can carry out State visits and, since 1956, examines complaints about specific
human rights violations, even those brought against the US and Canada.4
The Commission (whose recommendations are not binding upon States)
pre-screens cases for the IACtHR, performing initial examinations of cases
involving human rights violations filed by individuals or non-governmental
1 UNHCR Report, ‘Women on the Run’ (October 2015), 17, www .unhcr .org/ about
-us/ background/ 56fc31864/ women -on -the -run -full -report .html. All online sources
were accessed 30 October 2021.
2 Art. 1 Charter OAS. See also Ronagh McQuigg, The Istanbul Convention,
Domestic Violence and Human Rights (Routledge 2017); OAS, Member States, http://
www .oas .org/ en/ member _states/ default .asp.
3 E.g., Jessica Lenahan (Gonzalez) et al. v. the United States, Inter-American
Commission of Human Rights Case 12.626, Report No 80/11, 21 July 2011; Art. 26
ACHR.
4 Arts 18–20 ACHR.
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168 Conceptualizing femicide as a human rights violation
organizations (NGOs),5 and brings them to the IACtHR’s attention if deemed
viable.6 Unlike the European Court of Human Rights (ECtHR), before which
individuals can bring complaints, only the IACHR and States can bring com-
plaints before the IACtHR.7
That violence against women and girls is impermissible, is better estab-
lished in the Inter-American context relative to other regions. As early as
1928, the Pan-American Association for the Advancement of Women, an
inter-American women’s rights’ movement, tried to advance a treaty for equal
rights for women, which was however not ratified.8 Since its early days, the
Inter-American system has tried to enfranchise women and recognized the
need to respond to violence against women and girls (VAWG) by establishing
a UN Special Rapporteur on the Rights of Women.9
The Inter-American Commission of Women (ICW), an organization pro-
moting women’s civil and political rights, spearheaded the establishment of the
Inter-American Convention on the Prevention, Punishment, and Eradication of
Violence against Women (Belém do Pará Convention) in 1994.10
The IACtHR continues to be a pioneer in the recognition of gender-based
violence against women in international human rights law. The Court decided
several femicide cases on the widespread violence against and massacres of
women and girls in Mexico and Guatemala, and sexual violence against female
protestors in state custody and indigenous women in Mexico.11 Considering
the compounded nature of femicide, the IACtHR addresses many human rights
violations together: the right to life, the right to personal integrity, the right to
equal access to justice, and judicial protection, among other rights.12 The term
femicide has not been fully disambiguated. In the Cotton Field Case, the Court
hesitantly, and without much explanation, denoted femicide as ‘gender-based
5 Art. 44 ACHR.
6 Art. 51 ACHR.
7 Arts 57 and 61 ACHR.
8 Inter-American Commission of Human Rights (IACHR), ‘Brief History of the
Commission,’ www .oas .org/ en/ cim/ history .asp.
9 OAS, IACHR, Rapporteurship on the Rights of Women, Mandate, www .oas .org/
en/ iachr/ women/ mandate/ mandate .asp.
10 IACHR, ‘Brief History of the Commission’ (n 8).
11 Another case, Barbara de Sousa and Others v. Brazil on political violence
and femicide, is currently pending before the Court, https:// www .corteidh .or .cr/ docs/
tramite/ barbosa _de _souza _y _otros .pdf.
12 E.g., Velásquez Paiz v. Guatemala, Preliminary Objections, Merits, Reparations,
and Costs, Inter-American Court of Human Rights Series C No 307 (19 November 2015),
para. 172; López Soto v. Venezuela, Merits, Reparations, and Costs, Inter-American
Court of Human Rights Series C No 36 (26 September 2018), paras 178 and 182.
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Femicide and the Inter-American human rights system
murders of women, also known as femicide.’13 Judge Cecilia Medina Quiroqa
clarified the Court’s cautious approach to the term femicide by saying that ‘the
Court could hardly use that word [femicide] because it has many definitions
in academia and among activists and therefore it would not be good to adhere
to any of them.’14
Like the ECtHR, the IACtHR often considers sexual violence as violation
of personal integrity, rather than torture. More recently, this approach has
begun to dissipate. The IACtHR has responded to feminists’ demands by rec-
ognizing that rape by a private individual constitutes torture, which indicates
a positive change in the Court’s case law.15 The extensive discussion of how
gender stereotypes relate to adequate investigations render the systemic aspect
of femicide visible. To the extent that they have already recognized VAWG,
existing human rights concepts inform the femicide concept.
At the same time, the IACtHR has not yet fully engaged States’ responsi-
bility for widespread violence against the female social group. The Court also
applies the Osman test to determine state responsibility for non-state actor
violence. In its current interpretation, this test does not weigh the specific ways
violence targets women and girls. The domestic authorities’ awareness being
dependent on reports to the police does not fit the reality of harm in femicide.
Women and girls often do not know that they are in imminent danger of being
abducted and cannot alert the authorities. The Court fails to consider that all
who belong to the targeted group composed of women and girls, are at risk of
violence. As femicide is an ongoing human rights violation, upon disappear-
ance, a woman could be subjected to other human rights violations, potentially
rape and killings, and access to justice issues.16 At the moment that family
members report a woman’s disappearance, state responsibility may already
be engaged in the presence of such a pattern of violence. In an environment
of perpetual violence against women and girls, they realize that they are con-
13 González et al. v. Mexico (Cotton Field Case), Preliminary Objection, Merits,
Reparations, and Costs, Inter American Court of Human Rights Series C No 205 (16
November 2009), para. 143.
14 Marjana Carbajal, ‘Son crímenes que fueron minimizados’ Página 12 (21
December 2009), https:// www .pagina12 .com .ar/ diario/ sociedad/ 3 -137361 -2009 -12 -21
.html [unofficial translation by the author].
15 Angela Hefti, ‘López Soto v Venezuela: The Inter-American Court of Human
Rights’ Answer to Violence Against Women’ OxHRH Blog (19 June 2019), https://
ohrh .law .ox .ac .uk/ lopez -soto -v -venezuela -the -inter -american -court -of -human -rights
-answer -to -violence -against -women/ .
16 See Bonita Meyersfeld, Domestic Violence and International Law (Hart 2011)
118–122.
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170 Conceptualizing femicide as a human rights violation
stantly at risk of being abducted, which indicates that the State likely knows
this as well.17
THE BELÉM DO PARÁ CONVENTION
The IACtHR considers that the Belém do Pará Convention, together with
CEDAW, ‘complement[s] the international corpus juris in matters of protec-
tion of women’s right to humane treatment, of which the American Convention
forms part.’18 Article 1 Belém do Pará Convention defines violence against
women explicitly as ‘any act or conduct, based on gender, which causes death
or physical, sexual or psychological harm or suffering to women, whether in
the public or the private sphere.’19 The Preamble of the Convention lays down
in rather broad terms that violence is ‘an offense against human dignity and
a manifestation of the historically unequal power relations between women
and men, that pervades every sector of society, regardless of class, race, or
ethnic group, income, culture, level of education, age or religion, and strikes at
its very foundation.’ The Convention does not mention the term femicide, nor
sexual torture, and its group-related targeting.
As the first treaty of its kind, adopted in 1994, the Belém do Pará
Convention is a milestone in the history of international human rights law on
violence against women, setting a precedent for the Maputo Protocol (2003) in
the African hemisphere and the Istanbul Convention (2011) in Europe. Most
States in America, except the US and Canada, have ratified the Belém do
Pará Convention. Consequently, the IACtHR has relied on the Convention to
analyze violations of women’s rights.
A unique aspect of the Belém do Pará Convention is that some provisions
are directly justiciable in the Inter-American human rights system.20 Article
12 Belém do Pará Convention stipulates that individuals, NGOs, and groups
can ‘lodge petitions with the Inter-American Commission on Human Rights
containing denunciations or complaints of violations of Article 7 Belém do
Pará by a State Party.’ Taken to its logical conclusion, the IACtHR considered
17 See Cotton Field Case (n 13).
18 Miguel Castro-Castro Prison v. Peru, Preliminary Objections, Merits,
Reparations, and Costs, Inter-American Court of Human Rights Series C No 160
(25 November 2006) para. 276. See also Lorena Sosa, ‘Inter-American Case Law on
Femicide: Obscuring Intersections?’ (2017) 35(2) Netherlands Quarterly of Human
Rights 85–103 at 103.
19 Art. 1 Inter-American Convention on the Prevention, Punishment and Eradication
of Violence Against Women (Belém do Pará Convention) (adopted 9 June 1994,
entered into force 3 May 1995).
20 Arts 7 and 12 Belém do Pará Convention.
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Femicide and the Inter-American human rights system
that, since Article 12 Belém do Pará Convention allows the IACHR to hear
complaints about violations thereof, the Commission must be allowed to bring
cases before the Court.21 It follows that the Court can adjudicate cases relating
to potential breaches of Article 7 Belém do Pará Convention, which requires
States to condemn and prevent VAWG, and which serves ‘as reference of
interpretation’ to specify the scope of other human rights violations.22
After the Commission had applied the Belém do Pará Convention in Maria
da Penha, the IACtHR used its Article 7 in Castro-Castro to emphasize that
States must not engage in VAWG.23 In the Cotton Field case, the Court pro-
ceeded to establish direct jurisdiction over violations of Article 7 Belém do
Pará Convention, stating that, while the Court has no direct jurisdiction over
some provisions, such as Article 8 (progressive measures to eradicate violence
against women) and Article 9 (considerations of women’s vulnerability), it can
rely on these Articles to specify States’ obligations under Article 7 Belém do
Pará Convention.24 The IACtHR’s assumption of jurisdiction over breaches of
Article 7 Belém do Pará constitutes an important recognition of women’s right
to be free from violence.25
FEMICIDE UNDER THE IACTHR
Compared to the ECtHR, the IACtHR has issued fewer judgments concerning
VAWG. However, the latter has dealt with abductions––sometimes linked
to domestic violence, sexual violence and forced nudity––in great depth and
issued detailed judgments on the Ciudad Juarez femicide.26 Given its meticu-
lous examination of and experience with gendered harm, the IACtHR’s case
law is especially useful to conceptualize femicide as a human rights violation.
The IACtHR performs a joint analysis of many human rights violations in
femicide: the right to fair trial and judicial protection (Arts 8 and 25 ACHR),
the right to non-discrimination (Arts 1(1) and 24 ACHR), the right to life (Art.
4 ACHR), the right to be free from (sexual) torture and the right to personal
integrity (Art. 5 ACHR), as well as the right to family life and honor (Art.
11 ACHR), and violations of the duty to prevent and punish violence (Art.
21 Art. 12 Belém do Pará Convention; Castro-Castro v. Peru (n 18) paras 292–293.
22 Castro-Castro v. Peru (n 18) para. 276.
23 Ibid., para. 276.
24 Cotton Field Case (n 13), paras 38–73.
25 See Meyersfeld (n 16) 81.
26 See Caroline Bettinger-Lopez, ‘Violence Against Women: Normative
Developments in the Inter-American Human Rights System’ in Jackie Jones and
Rashida Manjoo (eds), The Legal Protection of Women from Violence (Routledge
2018) 166–170.
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172 Conceptualizing femicide as a human rights violation
7(a)–(b) Belém do Pará Convention). The Court also stresses the role of family
members’ involvement in femicide, finding violations of their right to personal
integrity and honor when they report their relatives’ disappearance, and when
the victim’s body is located (Arts 5 and 11 ACHR).27
Gender-based Violence
The discriminatory aspect of femicide overlays all substantive human rights
violations. The structural inequality, where women’s lives are disposable,
facilitates widespread abductions, sexual violence, and killings of women,
e.g., in Ciudad Juarez, Mexico. When they disappear in Ciudad Juarez, the
police often fail to investigate and locate the missing women and girls, usually
based on references to previous sexual history or a victim’s private life. The
police remain inactive at a time when the victim may still be alive. This sends
a message to potential assailants that violence against women is tolerated. As
a result, a climate of impunity is created where further acts of gender-based
violence are committed. Another manifestation of discrimination is when the
authorities fail to clarify the facts and punish the perpetrators once the victim’s
next of kin registers a complaint. The discrimination inherent in femicide is
covered by CEDAW as well as Article 1 Belém do Pará Convention, both of
which the Court frequently incorporates. CEDAW takes a horizontal approach
to discrimination, speaking of discrimination in terms of ‘distinction, exclu-
sion or restriction.’ The Belém do Pará Convention’s vertical conception of
unequal power relations, whereby ‘a group [i]s superior or [has] privilege [to]
adversely treat[] [another] group inferior, with hostility or any other form of
discrimination,’ appears more pertinent to the degradation and ill-treatment
women and girls suffer in femicide.28
Severe Violence
The recognition of sexual violence and rape as issues of international concern
is relatively new in the Inter-American human rights system. In the early
2000s, the IACtHR examined rape in relation to sexual violence in the context
of detention in Castro-Castro v. Peru and Espinoza Gonzáles v. Peru as a par-
adigmatic form of violence against women.29 The Court relied on international
criminal law approaches to define sexual violence in line with the International
27 See López Soto v. Venezuela (n 12) paras 262 and 264–267.
28 Velásquez Paiz v. Guatemala (n 12) para. 173.
29 Castro-Castro v. Peru (n 18); Gladys Espinoza Gonzáles v. Peru, Preliminary
Objections, Merits, Reparations, and Costs, Inter-American Court of Human Rights
Serie C No 289 (20 November 2014).
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Femicide and the Inter-American human rights system
Criminal Tribunal for Rwanda (ICTR)’s Akayesu case,30 while applying the
narrow Furundžija definition of rape: ‘[An] act of vaginal or anal penetration,
without the victim’s consent, through the use of other parts of the aggressor’s
body or objects.’31 The IACtHR’s approach to gendered harm as torture is
unique among regional human rights bodies as it recognizes not only rape,
but also sexual violence more generally as violating the prohibition of torture.
This means that whether acts constitute sexual violence or rape may become
irrelevant for the finding of torture by the Court in future.
The IACtHR distanced itself from a state official requirement for acts of
rape and sexual violence, as initially envisioned by the Convention Against
Torture (CAT).32 In doing so, the Court referred to the CAT Committee’s deci-
sion in V.L. v. Switzerland, where the Committee found that ‘the complainant
was clearly under the physical control of the police even though the acts con-
cerned were perpetrated outside formal detention facilities.’33 The Committee
thus expanded this concept and acknowledged that rape committed by police
officials and military personnel could constitute torture when committed
outside state facilities.34 The Inter-American Convention to Prevent and Punish
Torture (IACPPT)’s wording includes state officials. However, the IACtHR
has interpreted this provision as referring only to criminal responsibility for
torture committed.35 Based on V.L., in Fernandez Ortega et al. v. Mexico and
Rosendo Cantú v. Mexico, the IACtHR considered that rapes committed in the
private sphere—in a woman’s home or near a stream where she washed her
clothes—constitute torture.36 Finally, in López Soto, the Court clarified that
state involvement is not required for the commission of torture.37 And yet,
discussions on rape as torture are absent in the femicide cases, where women
and girls’ bodies were found with the victims likely having been raped by
30 Castro-Castro v. Peru (n 18) para. 306.
31 Ibid., para. 310. See also Rosendo Cantú et al. v Mexico, Preliminary Objections,
Merits, Reparations, and Costs, Inter-American Court of Human Rights Series C No
216 (31 August 2010), para. 109.
32 Ibid., para. 117; Hilary Charlesworth and Christine Chinkin, The Boundaries of
International Law, a Feminist Analysis (Juris Publishing 2000) 234.
33 In V.L. v. Switzerland, the CAT Committee considered the rape of a woman who
was taken from her home to be raped as a punishment for the political activities of her
husband. CAT, V.L. v. Switzerland, UN Doc CAT/C/37/D/262/2005, 22 January 2007,
para. 8.10.
34 See also CAT’s departure from the public sphere requirement. Ibid.
35 López Soto v. Venezuela (n 12) para. 190.
36 Rosendo Cantú v. Mexico (n 31) para. 118; Fernandez Ortega et al v. Mexico,
Preliminary Objections, Merits, Reparations, and Costs, Inter-American Court of
Human Rights Series C No 224 (30 August 2010), para. 121.
37 López Soto v. Venezuela (n 12) para. 190.
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174 Conceptualizing femicide as a human rights violation
unidentified perpetrators. Instead of classifying these acts as torture, the Court
considered them attacks on personal integrity, which was criticized by Judge
Medina Quiroqa.38
The IACtHR has established that rape can constitute sexual torture if it
meets three cumulative elements:39 (1) the act is intentional; (2) it causes
severe physical and mental suffering; (3) it is committed with a purpose. The
Court consistently finds acts of rape to be intentional. The IACtHR also reit-
erates that severe mental and physical suffering ‘leaves the victim “physically
and emotionally humiliated,” a situation that is difficult to overcome with the
passage of time, contrary to other traumatic experiences,’40 recognizing that
rape can have severe repercussions on the victims—including mental pain and
social consequences.41 The Court has found the purpose of rape in punishment
of the victims, discrimination, and most recently, an exercise of social control
over women and girls.
The Risk Assessment
The most relevant duty in femicide cases in the Inter-American system is
to prevent VAWG, since disappearances, sexual violence, and killings of
women are often committed by non-state actors.42 Based on its sister Court’s
Osman test, the IACtHR generally finds that, a State may have known of a
‘real or immediate risk’ to the individual woman. The IACtHR then considers
whether a State had taken sufficient preventive measures designed to avert
the risk, e.g., by enacting a femicide law. The Court has established that the
Osman test is met after a woman is reported missing, but not for the risk she
is exposed to in a structural context of violence, where women and girls’ lives
are in jeopardy. The Court initially found that States ‘knew or ought to have
known’ of a real or immediate risk through official police reports in Cotton
Field and Veliz Franco.43 With Velásquez Paiz, the Court seemingly lowered
the threshold to determine state knowledge. The victim’s parents’ informal
38 Cotton Field Case (n 13), Dissenting Opinion Judge Medina, para. 1.
39 Fernandez Ortega et al. v. Mexico (n 36) para. 121.
40 Women Victims of Sexual Torture in Atenco v. Mexico, Preliminary Objections,
Merits, Reparations, and Costs, Inter-American Court of Human Rights Series C No
371 (20 November 2018), para. 196.
41 Ibid., para.124.
42 See for state responsibility of non-state actors in human rights law, Velasquez
Rodríguez v. Honduras, Merits, Reparations, and Costs, Inter-American Court of
Human Rights Series C No 4 (29 July 1988), para. 172.
43 Veliz Franco et al. v. Guatemala, Preliminary Objections, Merits, Reparations,
and Costs, Inter-American Court of Human Rights Series C No 277 (19 May 2014),
para. 146.
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Femicide and the Inter-American human rights system
phone call to the police and the dispatching of a police patrol was considered
to make the authorities aware of Ms Velásquez’s disappearance.44 Moreover,
in López Soto, the Court further lowered this standard, stating that ‘news of an
abduction or of a disappearance’ activates the State’s reinforced due diligence
obligation.45 The Court should also consider that the widespread occurrence
of the violence might already trigger state responsibility in contexts for which
statistics and reports to that effect exist.
Gender-sensitive Investigation
Gender-bias inaction by state officials can give rise to state responsibility
based on the Court’s promising case law. Crimes against women and girls
must accordingly be handled with sensitivity to the ways in which violence
targets them. The IACtHR usually jointly examines Articles 8(1) ACHR (right
to fair trial) and 25(1) ACHR (right to equal protection before the law), which
together codify States’ procedural obligation to investigate acts of femicide.46
Under Article 25 ACHR, an effective remedy must be ‘simple and prompt,’47
and be ‘capable [of] producing the results for which it was designed.’48
A successful investigation must be serious, impartial, and effective, designed
to seek the truth and punish the perpetrators.49 The Court supplements this
obligation with an enhanced due diligence obligation. This means that States
must investigate violence against women and girls without delay, an obli-
gation arising from Article 7(b) Belém do Pará Convention (the obligation
to eradicate violence against women).50 The Court has developed specific
investigative standards in femicide cases: (1) the obligation to investigate
these cases with a gender perspective; (2) to refrain from stereotyping women
and girls. An investigation with a gender perspective (essentially the woman
question)51 asks how violence targets women and girls specifically. This means
going beyond a woman’s murder to examine how she was killed and how the
authorities might have responded if a man’s life were at stake.52 The Court
requires States to ask two questions to determine whether a woman’s murder
44 Velásquez Paiz v. Guatemala (n 12) para. 121.
45 Ibid., paras 154–155 and 157.
46 See Cecilia Medina, The American Convention on Human Rights, Crucial Rights
and their Theory and Practice (Intersentia 2014) 236–239.
47 Ibid., 237.
48 Velasquez Rodríguez v. Honduras (n 42) para. 166.
49 Ibid., para. 292.
50 See e.g., López Soto v. Venezuela (n 12) para. 258.
51 Katharine Bartlett, ‘Feminist Legal Methods’ (1990) 104(4) Harvard Law
Review 828–888 at 837–849.
52 Ibid.; see Veliz Franco v. Guatemala (n 43) para. 187.
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176 Conceptualizing femicide as a human rights violation
was gender-based: Did her murder involve sexual violence/rape? And/or was
she brutally murdered/mutilated (overkilled)?53 Contrary to their obligation
to adopt a gender perspective, when States engage in gender stereotyping,
they discriminate against women and girls and render criminal investigations
ineffective.54 Drawing on Cook and Cusack’s work, the Court defines gender
stereotypes as ‘a preconception of personal attributes, characteristics or roles
that correspond or should correspond to either men or women.’55 Many femi-
cide cases are characterized by gender stereotypes, such as inquiries into the
victim’s way of dressing, her previous sexual conduct, and seemingly harmless
jokes and assumptions about a woman’s whereabouts, attitude and moral
behavior. To the extent that the domestic authorities fail to respond to and
investigate reports of missing women and girls based on preconceptions about
how a girl should behave, they become especially harmful.
DOMESTIC VIOLENCE
Not many classic domestic violence cases have been brought in the
inter-American human rights system, although in some cases where women
and girls disappeared, such as the Cotton Field Case, evidence suggests that
they may have known their murderer. Considering these disguised domestic
violence cases, the issue of non-state actor femicide merits great attention. The
Inter-American Commission first pronounced itself on domestic violence and
applied the Belém do Pará Convention in 2001 in Maria da Penha, where it
centered on the authorities’ inaction—articulating the IACtHR’s due diligence
standards—and found Brazil in violation of her rights to equality before the
law and access to justice.56 In 2011, in Lenahan, the IACHR could not apply
the Belém do Pará Convention, since the US was not a signatory. Instead, it
viewed the violence committed against Ms Lenahan and her daughters in terms
of discrimination, developing the State’s duty to prevent gender-based vio-
53 UN Entity for Gender Equality and the Empowerment of Women, Latin
American Model Protocol for the Investigation of Gender-related Killings of Women
(Femicide/Feminicide) (2004) [hereinafter the Latin American Model Protocol]; Veliz
Franco v. Guatemala (n 43) paras 187–188.
54 Cotton Field Case (n 13) para. 401; Rebecca Cook and Simone Cusack, Gender
Stereotyping: Transnational Legal Perspectives (Pennsylvania University Press 2010)
20.
55 Cotton Field Case (n 13), para. 401. Cook and Cusack define gender stereotyp-
ing as an ‘overarching term that refers to a structured set of beliefs about the personal
attributes of women and men.’ Cook and Cusack (n 54) 20.
56 Maria da Penha v. Brazil (16 April 2001) Inter-American Commission Case
12.051, Report No 54/01, paras 41 and 177.
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Femicide and the Inter-American human rights system
lence against women and girls, on which the Court continued to build.57 These
two cases constitute milestones for women’s right to be free from domestic
violence in the inter-American human rights system and beyond.58 They have
also brought about social change and fueled laws and policies at the domestic
level. In 2006, Maria Da Penha led to the adoption of the solid 2006 Maria
Da Penha Law in Brazil, which incorporates standards on domestic violence.59
As a result of Jessica Lenahan and her lawyers’ advocacy efforts with the US
State Department, the US enacted federal guidelines on how law enforcement
can better respond to domestic violence in 2015—federal law has yet to be
strengthened to grasp domestic violence.60
Maria Da Penha v. Brazil (2001)
Ms Da Penha’s husband tried to kill her twice. The first time, he shot Ms
Da Penha while she was asleep, resulting in serious injuries for which she
underwent various operations, from which she did not recover fully, remain-
ing paralyzed from the waist down.61 Two weeks after her return home, her
husband tried to electrocute her while she was taking a bath. Having survived
both attacks, she filed a criminal complaint against her husband.62 However,
the authorities failed to arrest or sentence her husband even though the threats
continued. For more than 15 years, her husband remained free.63
The Commission found that Brazil had breached Ms Da Penha’s right to
equality since (1) domestic violence was at an extremely high level in Brazil;64
(2) domestic violence formed part of a widespread pattern of violence per-
57 Patricia Tarre Moser, ‘The Duty to Ensure Human Rights and its Evolution in
the Inter-American System: Comparing Maria da Penha v. Brazil with Jessica Lenahan
(Gonzales) v. United States’ (2012) 21 Journal of Gender, Social Policy and the Law
437–453 at 439–443.
58 See Bettinger-Lopez (n 26) 188.
59 Elizabeth Abi-Mershed, ‘The Inter-American Commission on Human Rights
and Implementation of Recommendations in Individual Cases’ (2020) 12(1) Journal
of Human Rights Practice 171–177; Maria da Penha Law, Law No 11.340 (7 August
2006), www .planalto .gov .br/ ccivil _03/ _Ato2004 -2006/ 2006/ Lei/ L11340 .htm.
60 US Department of Justice, ‘Identifying and Preventing Gender Bias in Law
Enforcement Response to Sexual Assault and Domestic Violence’ (15 December
2015), www .justice .gov/ opa/ file/ 799366/ download. Jessica Lenahan v. United States is
also presented in the documentary film, ‘Home Truth’. Katia Maguire and April Hayes
(dirs./prods.), ‘Home Truth,’ www .hometruthfilm .com/ . See also Bettinger-Lopez (n
26) 190.
61 Maria da Penha v. Brazil (n 56) para. 8.
62 Ibid., paras 2, 8–9 and 12.0.
63 Ibid., para. 19.
64 Ibid., para. 46.
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178 Conceptualizing femicide as a human rights violation
petrated disproportionately against women; and (3) courts were reluctant to
punish perpetrators.65 Applying Article 3 (the right to a life free from violence)
and—for the first time—Article 7 Belém do Pará Convention (concerning
many duties to prevent violence), the IACHR found Brazil’s judicial system
to be ineffective in responding to domestic violence against Ms da Penha.66
The domestic authorities’ inaction had created a ‘climate that is conducive
to domestic violence since society sees no evidence of willingness by the
State […] to take effective action to sanction these acts.’67 The impunity with
which perpetrators could commit crimes against women resulted in the con-
tinuance of ‘the psychological, social, and historical roots’ which perpetuate
VAWG.68 In the light of a general situation of impunity in Brazil, the domestic
authorities’ inaction demonstrated their perception of violence against female
members of society as insignificant.69 Contrary to Articles 8 and 25 ACHR,
the proceedings lasted 17 years, which denied her a ‘prompt and effective’
remedy.70 The Commission did not discuss the substantive rights at issue,
namely a potential violation of her right to life, her right to physical integrity,
and humane treatment ‘for which there would have been considerably more
stigma for the State than finding a violation of [procedural obligations].’71
Jessica Lenahan v. the United States (2011)
In 1999, Leslie, Katheryn, and Rebecca Gonzales, aged seven to ten years
old, were abducted by their father, Jessica Lenahan’s ex-husband, Simon
Gonzales.72 After their disappearance, Ms Lenahan called the police eight
times, saying that she was worried about her daughters’ safety and that she
suspected they were with their father against whom she held a valid restraining
order.73 Instead of enforcing her restraining order, the police reassured her that
the girls would be fine with their father.74 Ten hours after Ms Lenahan’s initial
contact with the police, her ex-husband drove to the police department where
he opened fire. The police killed him. The girls’ bodies were discovered in the
trunk of his car.75 The police did not immediately inform Ms Lenahan of the
65 Ibid., paras 47–50, referring to CEDAW.
66 Ibid., para. 58.
67 Ibid., para. 56.
68 Ibid., para. 55.
69 Ibid., para. 57.
70 Ibid., paras 38–40.
71 Bettinger-Lopez (n 26) 177.
72 Lenahan v. United States (n 3) para. 152.
73 Ibid., para. 71.
74 Ibid., paras 27–30 and 146.
75 Ibid., paras 32 and 80.
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179
Femicide and the Inter-American human rights system
fact that her daughters had died, and the manner in which it occurred.76 Ms
Lenahan filed a lawsuit against the police department for their failure to enforce
her restraining order, reaching the US Supreme Court. In Town of Castle Rock
v. Jessica Gonzales, the US Supreme Court held that the police department’s
inaction did not violate her due process rights under the US Constitution,
despite Colorado state law requiring enforcement of the restraining order, and
rejected her claims.77 Ms Lenahan continued to seek justice by filing a petition
with the IACHR, arguing that the US had failed to protect her and her three
daughters from domestic violence.78 As the first international judicial body to
hear a domestic violence case against the US, the IACHR found that, under
Article 2 of the American Declaration (the US had not ratified the ACHR or
the Belém do Pará Convention) the US’ failure to protect Ms Lenahan and her
daughters from domestic violence discriminated against them and that the US
had violated her daughters’ rights to life and judicial protection.79
The IACHR considered that domestic violence disproportionately affects
women and girls and that it is ‘one of the most extreme and pervasive forms
of discrimination.’80 In this respect, the Commission understood the prin-
ciple of due diligence to ‘encompasses the organization of the entire state
structure—including the State’s legislative framework, public policies, law
enforcement machinery, and judicial system—to adequately and effectively
prevent and respond to these problems.’81 The IACHR relied on the Osman
standard to note that the US knew about the risk of violence, evidenced by an
existing restraining order, ‘a judicial determination of risk.’82 The restraining
order itself laid out the measures the State could have reasonably taken (e.g.,
the arrest of Simon Gonzales).83 The US’ failure to effectively protect women
and implement restraining orders was found to be systemic and historical.84
By failing to implement the restraining order, the US authorities had failed
to protect Ms Lenahan, Katheryn, Leslie, and Rebecca from violence, ‘which
76 Ibid., paras 33 and 85.
77 Town of Castle Rock v. Gonzales (Gonzales IV), 545 U.S. 748 (2005), paras
90–91.
78 Lenahan v. United States (n 3) paras 2–3.
79 Ibid., paras 164–165 and 170.
80 Ibid., paras 110–111 and 163. See also UNGA Resolution, Human Rights
Council, Accelerating Efforts to Eliminate All Forms of Violence Against Women:
Ensuring Due Diligence in Prevention, UNGA Res (16 June 2010) UN Doc A/
HRC/14/L.9/Rev.1.
81 Lenahan v. United States (n 3) para. 120.
82 Ibid., para. 145.
83 Ibid.
84 Ibid., paras 161–162.
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180 Conceptualizing femicide as a human rights violation
constitutes a form of discrimination.’85 The US had failed to provide an answer
on whether Leslie, Katheryn, and Rebecca had died in the crossfire, or at the
hands of their father.86 Hence, Ms Lenahan never obtained an effective remedy
for the human rights violation against her daughters.
SEXUAL MASSACRES
Plan de Sánchez v. Guatemala and Dos Erres v. Guatemala relate to massacres
and mass rapes of indigenous Maya communities committed during the civil
war under Efraín Ríos Montt’s military dictatorship. They constituted the
advent of the IACtHR’s case law relevant to femicide.87 The Guatemalan mili-
tary employed sexual violence against women and girls as a counter-insurgency
strategy towards alleged guerrilla fighters. The sexual violence against the
female social group of Maya communities pursued various purposes: destroy-
ing the supposed guerrilla groups, serving as ‘rewards’ for the combatants
(see Chapter 2);88 destroying entire communities, women and girls being
stigmatized and ostracized by their own villages.89 After the civil war, instead
of subsiding naturally, brutal rapes and killings of women and girls prevailed.90
For more than 30 years, military members ordered to rape women had inter-
nalized a war waged on women’s bodies so rape remained ‘normal’ in peace-
time.91 Having been created by the state military, this culture of violence went
unaddressed by state authorities and was exacerbated by drug trafficking, gang
activity, and other factors.92 This context must be understood as the arena for
present-day femicide in Guatemala of rapes, culminating in women’s deaths,
as exemplified by Velásquez Paiz and Veliz Franco. When States remain
passive in the face of cultural patterns, created or fostered through military
strategies, their state responsibility for femicide may be engaged.
85 Ibid., para. 160.
86 Ibid., paras 186 and 196.
87 See Nunca Más Report, Guatemala, ‘Chapter 5.2 Sexual Violence’: Case 1871
and Case 710, http:// www .odhag .org .gt/ publicaciones/ remhi -guatemala -nunca -mas/ .
88 Guatemala Human Rights Commission/US, ‘Guatemala’s Feminicide Law:
Progress Against Impunity?’ (2009), 1, 3 and 27, www .ghrc -usa .org/ Publications/
Femicide _Law _Pro gressAgain stImpunity .pdf. [hereinafter Guatemala’s Femicide
Law: Progress Against Impunity?].
89 Ibid.
90 Ibid.
91 Ibid., 3–4; Adrián Reyes and IPS Correspondents, ‘Guatemala: Asesinatos
Crueles recuerdan Guerra Civil’ Inter Press Service (17 June 2005), www .ipsnoticias
.net/ 2005/ 06/ guatemala -crueles -asesinatos -de -mujeres -recuerdan -guerra -civil/ .
92 Guatemala’s Femicide Law: Progress Against Impunity? (n 88) 3–6.
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Femicide and the Inter-American human rights system
Plan de Sánchez (2004)
On 18 July 1982, the Guatemalan army attacked Plan de Sánchez, a Maya
village in central Guatemala. As they anticipated the strike, male villagers hid
in the forests, while female inhabitants, children and the elderly, remained in
the village; the locals believed the soldiers would not harm them. However,
the military contingent who entered Plan de Sánchez separated a group of
20 women and girls, aged 12–20, whom the soldiers brutally raped and then
massacred. After that, they executed the surviving elderly women and young
girls, along with some boys and elderly villagers, whom they believed to be
guerrillas.93 During the years following, the survivors lived their lives in fear,
discontinued their Maya religious rites, and remained under constant threat
from the military who continued to harass them.94 While most villagers were
eventually massacred, the manner of killing differed between women or men.
Men and boys were instantly killed, whereas women and girls were raped
before being executed––a weapon which had an effect on their communities:
The rape of women was a state practice, executed in the context of massacres,
designed to destroy the dignity of women at the cultural, social, family and individ-
ual levels. These women consider themselves stigmatized in their communities and
have suffered from the presence of the perpetrators in the town’s common areas.95
Plan de Sánchez mainly clarified facts and identified the victims. The Court
mentioned the term ‘rape’ twice in its judgment, without drawing any legal
conclusions on the issue. This lack of recognition was somewhat remedied
by the Court’s Reparation Judgment, which discussed the effects of rape on
women who survived the massacre.96 The judgment does not carry many legal
references since Guatemala had accepted its responsibility under international
law. Plan de Sánchez illustrates the distinct human rights violations against
women and girls and is a prelude to Dos Erres v. Guatemala.97
Dos Erres (2009)
On 6 December 1982, Guatemalan soldiers attacked the Dos Erres community,
whose inhabitants they believed to be guerrilla sympathizers. Guatemalan
93 Plan de Sánchez Massacre v. Guatemala, Reparations, Inter-American Court of
Human Rights Series C No 116 (19 November 2004), para. 49.19.
94 Ibid., para. 32.
95 Ibid., para. 49.19.
96 Ibid., paras 34–38.
97 Ibid., para. 49.18.
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182 Conceptualizing femicide as a human rights violation
Special Forces divided the villagers into groups. They separated the men from
the women and massacred the men immediately.98 The soldiers then systemat-
ically attacked the women: ‘also killing them at that time […] they were sav-
agely raped.’99 Unprecedented in scale and horror, the massacres were meant
to lead to the inhabitants’ deaths.100 The VAWG included forced abortions101
‘by beating [women] or even jumping on their abdomen until the fetus came
out miscarried.’102
The IACtHR articulated legal standards on the States’ duty to investigate
sexual violence and torture in the context of this massacre.103 The Court did
not analyze the substantive elements of rape and sexual violence, likely due
to the State’s apparent passivity in the face of widespread sexual violence.104
Overall, Guatemala had failed to investigate the facts thoroughly, to exhume
and identify most of the victims, to execute arrest warrants, and to hold the
responsible state officials accountable.105 Of particular relevance to femicide
is the IACtHR’s brief analysis uncovering that Guatemala had failed to carry
out an investigation from a gender perspective.106 Considering that the eventual
investigation regarded a limited conception of the right to life, ignoring the
cruel rapes, forced abortions, and subsequent killings of women, the authorities
had violated their international obligations to investigate torture and women’s
rights violations with due diligence.107 In line with Plan de Sánchez, the Court
acknowledged that ‘[t]he rape of women was a State practice, executed in the
context of massacres, directed to destroying the dignity of women at a cultural,
social, family, and individual level.’108 This judgment shows that the author-
ities’ focus on certain human rights violations can significantly impact the
investigation of and hide the violence committed against women and girls.109
98 Dos Erres Massacre v. Guatemala, Preliminary Objections, Merits, Reparations,
and Costs, Inter-American Court of Human Rights Series C No 211 (24 November
2009), paras 79 and 81.
99 Ibid., paras 70–73 and 138–139.
100 Ibid., paras 79–81.
101 Ibid., paras 79–81 and 138.
102 Ibid., para. 81.
103 Ibid., paras 147–148 and 155.
104 Ibid., paras 137–140 and 217.
105 Ibid., paras 146–152.
106 Ibid., para. 141. See Concurring Opinion Judge Ramón Cadena Rámila.
107 Ibid., paras 136–138.
108 Ibid., paras 49.19 and 139.
109 Ibid., paras 170–172 and 200.
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183
Femicide and the Inter-American human rights system
STATE ACTION I: SEXUAL VIOLENCE IN STATE
CUSTODY
The IACtHR dealt with several cases of sexual violence committed within
a pattern of widespread sexual violence and rapes against women suspected of
terrorism during Peru’s Fujimori regime (1990–2000). These cases reveal how
the Fujimori regime systemized rape and sexual violence as a state-ordered
measure against women ‘intended to punish, intimidate, pressure, humiliate and
degrade the population’ in response to internal disturbances.110 Castro-Castro
is the landmark case on sexual violence as torture,111 which highlights impu-
nity as an element of femicide. A significant development is the IACtHR’s
recognition in Espinoza Gonzáles that rape can constitute torture with the aim
of discriminating women, an issue which is further developed in its recent case
law. Similar to the ECtHR’s approach, the IACtHR seems to consider rapes in
prison somehow more serious than rapes committed in private contexts. The
IACtHR also examined state officials’ contribution to a social context, where
violence against female social groups persists. Even non-state actor femicide
can be crucially influenced by the state authorities’ answer to such violence.
Castro-Castro v. Peru (2006)
On 6 May 1992, during Transfer Operation 1, armed forces and guards pri-
marily targeted female inmates of Peru’s Miguel Castro-Castro penitentiary,
a maximum-security prison which housed 135 women and girls, presumed
members of the terrorist organization Sendero Luminoso. They sexually
assaulted, injured, and killed many female prisoners during the supposed
prison transfer.112 The inmates had to climb over dead bodies while avoiding
bullets,113 being subject to insecurity and despair as they feared for their
lives—some of them up to eight months pregnant.114 Male prisoners who
came to their assistance, were attacked as well. Surviving female inmates
were forced to endure vaginal examinations and to be naked in front of armed
men.115 The IACtHR found Peru responsible for violating the right to life (Art.
110 Castro-Castro v. Peru (n 18) paras 223–225.
111 J. v. Peru is not discussed here given its similarity to the previous cases. J. v.
Peru, Preliminary Objections, Merits, Reparations, and Costs, Inter-American Court of
Human Rights Series C No 275 (27 November 2013).
112 Castro-Castro v. Peru (n 18) paras 197.15, 223 and 226–227.
113 Ibid., para. 290.
114 Ibid., paras 291–293 and 298.
115 Ibid., paras 222 and 304–306.
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184 Conceptualizing femicide as a human rights violation
4(1) ACHR), the right to humane treatment (Art. 5(2) ACHR),116 the right to
judicial protection and fair trial (Arts 8(1) and 25 ACHR), the right to be free
from (rape) torture (Arts 1, 6, and 8 IACPPT), and the right to be free from
violence (Art 7(b) Belém do Pará Convention).117
Castro-Castro has outlined the State’s duty to prevent VAWG in the
Inter-American human rights system.118 The IACtHR applied the Belém
do Pará Convention after the Commission had applied and interpreted the
Convention in Maria da Penha in 2001.119 The Court’s direct jurisdiction over
the Belém do Pará Convention has helped shape its role in protecting women
from violence. The Court considered that the forced nudity female detainees
had been subjected to constituted sexual violence. This recognition of forced
nudity as a human rights issue in itself, was a new development in the Court’s
case law. In coming to this conclusion, the Court relied on the ICTR’s Akayesu
Case. The IACtHR defined sexual violence as ‘actions with a sexual nature
committed with a person without their consent, which besides including the
physical invasion of the human body, may include acts that do not imply pen-
etration or even any physical contact whatsoever.’120 Being forced to remain
nude, under constant supervision, sometimes in the presence of male guards,
had caused the female detainees ‘serious psychological and moral suffering’
and constituted sexual violence against them.121 The Court considered that
their right to personal dignity had been violated on those grounds.122
The IACtHR also found that involuntary vaginal inspection through the use
of fingers represents rape, and that rape ‘due to its effects’ amounts to (sexual)
torture, a much-needed step in the understanding of harm to women as a serious
matter in need of attention.123 Similarly, the Court highlighted the Furundžija
definition, establishing that rape is not limited to vaginal intercourse, but could
also include other forms of penetration, such as forced oral penetration.124
An especially noteworthy aspect is that the Court did not dwell on whether
rape met the intent and purpose requirement for torture. Citing the ECtHR’s
Aydin Case, the IACtHR noted that rape ‘causes great physical and psycholog-
ical damage that leaves the victim “physically and emotionally humiliated,” [a]
situation difficult to overcome with time, contrary to what happens with other
116 Ibid., paras 332–333.
117 Ibid., para. 408.
118 See also Bettinger-Lopez (n 26) 182.
119 Maria da Penha v. Brazil (n 56) para. 58.
120 Castro-Castro v. Peru (n 18) para. 306.
121 Ibid., paras 303–306 and 308.
122 Ibid., para. 312.
123 Ibid.
124 Ibid., para. 310.
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Femicide and the Inter-American human rights system
traumatic experiences.’125 Although the Court seemingly recognized rape as
torture regardless of any other criterion, the IACtHR’s later case law clarified
how rape meets the criteria defining torture.
In line with Aydin, the IACtHR appeared outraged that prison guards had
raped women and girls, and stated that the ‘sexual rape of a detainee by
a State agent is an especially gross and reprehensible act, taking into account
the victim’s vulnerability and the abuse of power displayed by the agent.’126
The Court established an unnecessary hierarchy of rapes committed in private
and those in state custody, thereby placing rape committed by state officials
above rape committed in private. This approach falls short of recognizing that
‘private’ torture, committed against women at home by the persons with whom
they had a relationship, violates the victim’s trust just as much, if not more.127
As to the duty to investigate human rights violations, the IACtHR asserted
that States must investigate human rights violations with due diligence––‘they
must start, ex officio and without delay, a serious, impartial, and effective
investigation’––a duty which is confirmed through Article 7(b) Belém do
Pará Convention.128 The domestic authorities had ignored the sexual violence
committed against female prisoners during the so-called prison transfer, and
instead centered its investigation on the deaths of the victims––thus once
again emphasizing human rights violations typical to men and boys in a case
concerning mainly women and girls.129 The Court thus ruled that by failing to
investigate the facts for 13 years, Peru had failed to guarantee equal access to
justice to human rights victims within a reasonable time period.130
Finally, the IACtHR recognized the seriousness of the violence against
female detainees by concluding that a massacre akin to a crime against human-
ity had been committed.131 The Court’s consideration of the impunity with
which crimes against women and girls were treated, was particularly notewor-
thy for the development of the concept of femicide: ‘Impunity must be fought
through all means available, taking into account the need to make justice
in a specific case and that promotes the chronicle repetition of violations to
human rights and the total defenselessness of the victims.’132 The IACtHR
125 Ibid., paras 311–312. See ECtHR, Aydin v. Turkey, App No 57/1996/676/866 (25
September 1997), para. 83.
126 Castro-Castro v. Peru (n 18) para. 311.
127 Catharine MacKinnon, Are Women Human? And Other International Dialogues
(Harvard University Press 2007) 17.
128 Castro-Castro v. Peru (n 18) paras 344–346 and 378.
129 Ibid., para. 386.
130 Ibid., paras 387 and 408.
131 Ibid., paras. 404-405.
132 Ibid., para. 405.
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186 Conceptualizing femicide as a human rights violation
asserted that Peru should take all necessary measures to prosecute those
responsible for planning the massacre in order to comply with its obligation to
combat impunity.133
Gladys Espinoza Gonzáles v. Peru (2014)
Gladys Espinoza Gonzáles was arrested on terrorist charges in 1993 and sub-
jected to sexual violence on the premises of the Peruvian Counter-Terrorism
Directorate. She was then transferred to a maximum-security prison, where
she was held in permanent solitary confinement, and was repeatedly sexually
assaulted, raped, and tortured.134 Medical reports confirmed the corresponding
injuries on her body and sexual organs.135 The IACtHR found that Peru had
violated her rights to personal liberty (Art. 7 ACHR), personal integrity and
dignity (Art. 5(1)–(2) ACHR), honor (Art. 11 ACHR), the right to judicial
protection (Art. 25 ACHR), and the obligations established in Articles 1 and
6–8 IACPPT.136 The Court further held that her family members’ rights to per-
sonal integrity had been violated due to the traumatic events and the pain they
endured as a result of the violence against Ms Espinoza Gonzáles.137
The IACtHR determined that the non-consensual sexual intercourse while
Ms Espinoza Gonzáles was detained, constituted rape.138 The Court empha-
sized that it ‘is sufficient that penetration occurs, however slight this may be,’
thus allowing for an even broader interpretations of its rape definition than in
Castro-Castro.139 Considering rape as ‘a form of sexual violence’ in Espinoza
Gonzáles, the Court equalized rape and other sexual violence in terms of sever-
ity, a most welcome consideration of the many ways women and girls are sub-
jected to violence in femicide. The Court took this consideration in its recent
case law even further to recognize sexual violence as well as rape as torture.140
The Court held that Ms Espinoza Gonzáles’ rape violated the prohibition
of torture. In contrast to Castro-Castro, where the Court had only briefly
addressed rape as ‘severe pain and suffering,’ the IACtHR here analyzed
rape.141 Considering the severity of the rapes, ‘she felt that she was abandoning
her body’ and she had asked her assailants to kill her, the Court found that
133 Ibid., para. 407.
134 Espinoza Gonzáles v. Peru (n 29) para. 167.
135 Ibid., para. 203.
136 Ibid., paras 196 and 229.
137 Ibid., para. 299.
138 The IACtHR applied the Castro-Castro rape definition. Ibid., paras 192–193.
139 Ibid., para. 192.
140 Atenco v. Mexico (n 40) para. 193.
141 Espinoza Gonzáles v. Peru (n 29) paras 185 and 188.
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187
Femicide and the Inter-American human rights system
she was intentionally raped.142 Moreover, the pursued purpose was to elicit
information and punish her for failing to provide information.143 The Court
found that her body was used to punish, humiliate, and threaten her and her
partner who had also been detained.144 The threats against her regarding more
rapes and the potential infliction of HIV, constituted a form of ‘psychological
torture.’145 Of direct relevance to femicide is that the Court found that her rape
discriminated against her as a woman and therefore constituted torture.146
The IACtHR also considered the widespread, disproportionate practices
of sexual violence which discriminated against women and girls.147 In this
respect, the Court showed that armed conflict affects women and children
differently and ‘sexual violence, […] is frequently used as a symbolic means
of humiliating the opposing party or as a means of punishment and repres-
sion.’148 Beyond the individual harm inflicted, sexual violence had the power
to convey a message to the community at large.149 Citing expert witness Julissa
Mantilla Falcón, the Court stated that sexual violence in armed conflict must
be considered as a strategy of war.150 Considering this context, the Court held
that Ms Espinoza Gonzáles had been subjected to gender-based violence under
the CEDAW Committee’s General Recommendation No. 19.151 The State
had remained passive in response to this violence, which further violated her
Articles 8 and 25 ACHR rights and Article 7(b) Belém do Pará Convention.152
The Court stressed that criminal investigations into VAWG must not depend
on the victim or her family’s initiative.153 This judicial inaction creates
a climate of impunity, and causes154 ‘[women and girls’] persistent mistrust in
the system for the administration of justice.’155 This mistrust was cemented by
the use of stereotypes against her.156 The State’s Supreme Court unduly relied
on psychological appraisals, claiming that Ms Espinoza Gonzáles ‘manipu-
lated reality in her own interest,’ instead of critically considering the medical
142 Ibid., paras 159 and 189.
143 Ibid., para. 189.
144 Ibid., paras 214 and 229.
145 Ibid., paras 185 and 188.
146 Ibid., para. 229.
147 Ibid., para. 203.
148 Ibid., para. 226.
149 Ibid., para. 226.
150 Ibid., para. 227.
151 Ibid., paras 219–221.
152 Ibid., paras 243–286.
153 Ibid., para. 238.
154 Ibid.
155 Ibid., para. 280.
156 Ibid., paras 250–253 and 259.
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188 Conceptualizing femicide as a human rights violation
reports.157 Based on its preconceived notions about her, the Supreme Court had
ignored serious torture allegations.158 The Court concluded that the Peruvian
judiciary should have adopted a gender perspective in the investigation.159 Ms
Espinoza Gonzáles’ right to equal access to justice was held to be violated.160
STATE ACTION II: MILITARY VIOLENCE AGAINST
INDIGENOUS WOMEN AND GIRLS
In 2002, a military contingent was stationed in the State of Guerrero, Mexico,
to counter organized crimes. Several complaints were filed concerning the
rapes of civilians by military officials searching the area for insurgents, two of
them by the young indigenous Valentina Rosendo Cantú and Ines Fernandez
Ortega. Rosendo Cantú and Fernandez Ortega draw attention to intersec-
tional violence which affects a specific segment of the female social group.
Considering the sexism they were exposed to as young women, the racism
against them as indigenous people who barely knew Spanish and could not
file complaints without help, as well as 17-year-old Valentina’s situation as
a minor, the IACtHR abandoned ‘a single-issue framework for discrimina-
tion.’161 The Court implicitly incorporated Crenshaw’s intersectionality frame-
work to unravel the complex ways in which women are discriminated, which
ensures that their identity as both ‘woman’ and ‘coloured’ is taken into account
as regards rape and domestic violence.162 Applying Crenshaw’s framework
also steers clear of the notion of essentialism, which ‘constitutes the view that
all women are alike, sharing a common “essence” or certain “essential” traits
that differentiate them from men.’163
The IACtHR took the prohibition against torture out of the detention
center—where it conventionally applied—into Fernandez Ortega’s home and
to the stream where Rosendo Cantú was washing her clothes—the so-called
157 Ibid., paras 250–253, 279 and 286–288.
158 Ibid., paras 268 and 279.
159 Ibid., paras 242 and 281.
160 Ibid., para. 279.
161 Kimberlé Crenshaw, ‘Demarginalizing the Intersection of Race and Sex: A Black
Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist
Politics’ in Kelly Weisberg (ed), Feminist Legal Theory, Foundations (Pennsylvania
University Press 1993) 386–387.
162 See Kimberlé Crenshaw, ‘Mapping the Margins: Intersectionality, Identity
Politics, and Violence Against Women of Color’ (1991) 43(6) Stanford Law Review
1241–1299 at 1244. The Court referred to ‘intersectional’ discrimination in V.P.C.
and Others v. Nicaragua, Preliminary Objections, Merits, Reparations, and Costs,
Inter-American Court of Human Rights Series C No 350 (8 March 2018), para. 154.
163 Crenshaw (n 162), 1242. See also Meyersfeld (n 16) 123–124.
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189
Femicide and the Inter-American human rights system
private space which has traditionally been considered outside the reach of
state responsibility.164 Even though the perpetrators in the cases were still state
actors, these rape cases could be seen as the first step towards recognition of
sexual violence committed in the domestic sphere as torture.165
Fernandez Ortega et al. v. Mexico (2010)
Ms Ines Fernandez Ortega was inside her home with her children166 when
soldiers entered her house, where they questioned her about some meat her
husband had allegedly stolen. When Ms Fernandez Ortega did not answer
their questions, because she had limited Spanish skills and was afraid of the
soldiers, they threw her onto the ground and raped her.167 Soon thereafter,
she went to a hospital, where she initially received no medical attention.168
She spoke Me’phaa and could not file a complaint herself. Her husband and
other community members helped her lodge the complaint, which was ini-
tially rejected but later transferred to the military court.169 The IACtHR found
violations of her right to be free from torture (Art. 5(2) ACHR), and her right
to honor and dignity (Art. 11(1) in relation to Art. 1(1) ACHR), her right to
judicial protection and fair trial (Arts 8 and 25 ACHR, Arts 1, 6, and 8 of the
IACPPT, as well as Art. 7(b) Belém do Pará Convention).170 Finally, the Court
held that her husband and children’s rights to personal and moral integrity
(Arts 5(1) and 11(2) ACHR) had been breached.171
The IACtHR categorized Ms Fernandez Ortega’s rape as violence under
Article 1 Belém do Pará Convention and as torture under the required
three-prong test.172 The Court found that (1) she was intentionally raped, since
the attackers had forcibly penetrated her in the presence of other soldiers who
pointed their weapons at her.173 Ms Fernandez Ortega had suffered (2) severe
harm due to the psychological and physical harm inflicted on her. She reported
to be ‘sore and had physical aches and pains,’ although the medical certificate
164 See Alice Edwards, Violence against Women under International Human Rights
Law (Cambridge University Press 2011) 206.
165 See Rosa Celorio, ‘The Rights of Women in the Inter-American System of
Human Rights: Current Opportunities and Challenges in Standard-Setting’ (2011)
65(3) Miami Law Review 819–866 at 838–839.
166 Fernandez Ortega et al. v. Mexico (n 36) paras 125–126.
167 Ibid., paras 56 and 82.
168 Ibid., para. 86.
169 Ibid., para. 85.
170 Ibid., paras 3 and 128.
171 Ibid., paras 145–146.
172 Ibid., para. 118.
173 Ibid., para. 121.
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190 Conceptualizing femicide as a human rights violation
issued after her rape did not attest to any physical injuries.174 Similar to the
ECtHR’s Aydin Case, the IACtHR clarified that mental pain in itself could
constitute ‘physical and mental suffering’ under the definition of torture.175
Moreover, the Court considered that since she was raped at home, the pros-
pect that more soldiers could enter her home to gang-rape her at any time
‘increase[d] the level of vulnerability and humiliation and made her feel com-
pletely powerless and totally unable to react.’176 Her distress was intensified
by her concern for her children’s safety, who were with her shortly before her
rape.177 Finally, the rape was believed to lead to ‘loss of spirit’ according to her
indigenous worldview and thus recognized severe social repercussions, which
could destroy her ties to her community.178
The IACtHR held that the purpose of torture ‘include[s] intimidating,
degrading, humiliating, punishing, or controlling the person,’ and that Ms
Fernandez Ortega was raped as a punishment because she did not provide
the requested information.179 The Court noted that ‘the possibility [existed]
that there were also other objectives.’180 Regrettably, it did not rule on sexual
torture. The IACtHR did find that her right to private life, which entails ‘sexual
life, and the right to establish and develop relationships with other human
beings,’ was violated.181 Although the Court’s discussions on the right to
private life were limited and inconsequential, references to women’s right to
honor, dignity, and private life are unfortunate in the light of their connotation.
The IACtHR rightly held that rape does not belong in any military court
as it is unrelated to military discipline and its activities, and ought to fall
outside the competence of military jurisdictions.182 By this logic, should rape
be adjudicated by a military court, this could mean that sexual violence is
seen as a legitimized method of warfare and that women are legitimate prey
who may be legally raped under certain circumstances. Hence, the Court took
a stance in favor of eradicating impunity for rape in warfare. Being denied the
possibility to have her complaint heard by an ordinary tribunal she was denied
an adequate remedy.183
174 Ibid., para. 123.
175 Ibid., para. 124.
176 Ibid., paras 125–126.
177 Ibid.
178 Ibid., paras 124–126.
179 Ibid., para. 127.
180 Ibid.
181 Ibid., para. 129.
182 Ibid., paras 176–177.
183 Ibid., paras 179 and 182.
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191
Femicide and the Inter-American human rights system
Besides, the IACtHR found that Mexico had failed to investigate the rape
against Ms Fernandez Ortega with due diligence.184 She had had to overcome
various obstacles to lodge her complaint.185 The Court was especially con-
cerned about Mexican officials repeatedly summoning her to testify, stating
that ‘the investigation must try to avoid revictimization or the re-experiencing
of the profoundly traumatic experience each time the victim remembers or
testifies about what happened.’186 She was repeatedly questioned, which
showed the authorities’ ‘complete lack of motivation, sensitivity, and compe-
tence.’187 Finally, the IACtHR found that Mexico had also violated her right
to equal access to justice, based on her ethnicity as an indigenous woman.188
Considering that ‘it is essential that States offer effective protection that takes
into account women and girls’ particularities, social and economic character-
istics, as well as their situation of special vulnerability, customary law, values,
customs, and traditions,’189 the Court found that the authorities had failed to
respect her indigenous identity throughout the proceedings, recognizing the
multiple inequalities from which she had suffered.190
Rosendo Cantú v. Mexico (2010)
On 16 February 2002, Valentina Rosendo Cantú, a 17-year-old Me’phaa
indigenous adolescent, was washing her clothes at a stream when eight soldiers
approached her. They asked Valentina if she knew any of the people on a list
of names that they showed her.191 When she did not answer, some soldiers
knocked her to the ground. She momentarily lost consciousness. When she
woke up, the soldiers threatened to kill her along with her community if
she did not cooperate. Two soldiers ripped off her skirt and underwear and
raped her while the remaining six watched.192 Her husband filed a complaint
with the authorities of the community, and she went to a local health clinic
where she obtained pain killers and anti-inflammatory medication. A few
days later, she walked eight hours to another clinic where she was informed
that she could not be treated without an appointment. The next day, a doctor
examined her stomach but refused to assess possible injuries inflicted through
184 Ibid., para. 198.
185 Ibid., para. 195.
186 Ibid., para. 196.
187 Ibid., para. 197.
188 Ibid., para. 199.
189 Ibid., para. 200.
190 Ibid.
191 Rosendo Cantú v. Mexico (n 31) para. 73.
192 Ibid., para. 73.
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192 Conceptualizing femicide as a human rights violation
rape.193 Valentina filed a complaint against members of the Mexican army
with the help of her husband. Her case was referred to the military courts, also
resulting in impunity for the perpetrators.194 The IACtHR found violations of
Valentina’s rights to a fair trial and to judicial protection (Arts 8(1) and 25(1)
ACHR), the obligation to eradicate violence against women (Art. 7(b) Belém
do Pará Convention), her right to personal integrity (Art. 5(1)–(2) ACHR), the
right to dignity and privacy (Art. 11(1) and (2) ACHR) and the prohibition of
torture (Arts 1, 2, and 6 IACPPT).195 Moreover, Valentina’s daughter’s right to
psychological and moral integrity under Article 5(1) ACHR had been violated,
as she was ostracized by her community.196
Apart from concerning a minor, Rosendo Cantú is almost identical to
Fernandez Ortega. Valentina had been tortured at the hands of members of
the military since (1) she was intentionally hit in the abdomen, causing her to
fall on the ground, after which she was raped.197 Like in Fernandez Ortega, the
Court found that rape is traumatic, and inevitably (2) causes severe psycho-
logical and mental suffering even in the absence of physical suffering.198 The
IACtHR emphasized her status as a minor and the fear she endured as a result
of the six other soldiers present while she was raped.199 Reiterating that the
(3) purpose of rape as torture can be multiple, the Court again disregarded the
gendered aspect of rape, and found that Valentina was raped to punish her for
failing to provide information.200 In this case, the authorities violated her right
of access to justice and fair trial as they did not provide medical help and ade-
quate translation services and her husband had to translate the traumatic events
and later separated from her; they also retraumatized her through repeated
statements.201 The IACtHR established that the minimum standard in investi-
gating sexual violence requires ‘immediacy and speed.’202 Mexico had failed
to protect Valentina, who was a child throughout the proceedings, thereby
violating her rights of the child under Article 19 ACHR.203 The IACtHR
viewed Valentina’s situation through intersectional lenses, taking into account
that she was indigenous, female, and a minor, all of which contributed to the
193 Ibid., paras 37, 75 and 168.
194 Ibid., paras 38 and 59.
195 Ibid., para. 182.
196 Ibid., paras 137–139.
197 Ibid., para. 111.
198 Ibid., para. 114.
199 Ibid., paras 114–115.
200 Ibid., paras 110 and 117.
201 Ibid., paras 78, 133, 170, 178–179 and 184.
202 Ibid., para. 181.
203 Ibid., paras 201–202.
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Femicide and the Inter-American human rights system
violence against her.204 As these cases reveal, the female social group targeted
in femicide, is delimited by intersectional aspects.
STATE PASSIVITY: FEMICIDE IN MEXICO AND
GUATEMALA
The many human rights violations inherent in a single femicide case transpire
in a context of widespread violence, which arises from systemic discrimina-
tion.205 The IACtHR approaches femicide as a multi-faceted human rights
issue. In three emblematic femicide cases, the Court recognized women’s right
to be free from gender-based violence. The IACtHR is flexible in its approach
to VAWG as it establishes acts as gender-based violence by reference to
Article 1 Belém do Pará Convention in addition to the CEDAW Committee’s
General Recommendation No. 19.206 The Court is also practical in its approach
as it considers whether sexual violence or extreme violence, such as bodily
mutilation, characterized a crime against a woman to determine whether the
violence is gender based.207 This case law also affirms that impunity is an
element of femicide, when the police remain inactive instead of investigating
women and girls’ abductions at a time when the victim could still have been
rescued.
Another positive contribution to the recognition of femicide is that the
IACtHR has identified the targeted female social group. The Cotton Field
Case speaks of ‘particularly young women from humble backgrounds.’208
Although this phrase limits and identifies the targeted population, it may be
excessively narrow to cover women and girls from other social classes. The
issue of social class can be exemplified with Veliz Franco and Velásquez
Paiz, both cases concerning the violence against women in Guatemala in the
early 2000s. Whereas Veliz Franco dealt with the sexually violent murder of
15-year-old Maria Isabel from an underprivileged background, Velásquez Paiz
involved a law student from a higher social background who was abducted and
possibly raped after leaving a party. A limitation of the ‘female social group’
to women and girls of a certain social background would exclude several vic-
204 Ibid.
205 See Osvaldo Muñoz Vargas, ‘Maria Isabel, El Feminicidio con Rostro
Adolescente en Guatemala’ (2010) 21(1) Revista Latinoamericana de Derechos
Humanos 85–96 at 88.
206 Cotton Field Case (n 13) paras 231–232 and 398.
207 Ibid., para. 455; Veliz Franco v. Guatemala (n 43) paras 187–188; Velásquez
Paiz v. Guatemala (n 12) para. 196; Latin American Model Protocol (n 53) 64.
208 Cotton Field Case (n 13) para. 282.
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194 Conceptualizing femicide as a human rights violation
tims.209 The objective criteria must be defined by taking account of different
socio-economic, geographical, and other factors.
The IACtHR attributes state responsibility when individual women who
belong to such groups remain unprotected, but the protection does not extend
to the groups themselves––a rather individualistic understanding of human
rights protection. Even though the Court regularly mentions the widespread
context in relation to state responsibility, it places emphasis on whether an
individual risk existed. Cautiously, the Court appears to expand state responsi-
bility for failing to counter a widespread context of VAWG. This would lower
the burden on the victim’s families who are required to submit evidence before
the Court about having reported such violence for state responsibility to arise,
which is particularly a problem in the European context of domestic violence.
For state responsibility to arise, the IACtHR could consider that an ‘individual’
risk is connected to the widespread risk of which the State was aware, and that
an individual disappearance was part of such a pattern.
As to the widespread risk, the IACtHR already recognized knowledge on
the part of States about collective threats in the Cotton Field, Veliz Franco,
and Velásquez Paiz Cases. In the Cotton Field Case, the Court noted that
‘the State was aware of the situation of risk for women in Ciudad Juarez.’210
Guatemala was cognizant of a broad context of violence which put young
women and girls at risk, especially in Guatemala City and Escuintla in Veliz
Franco.211 In Velásquez Paiz, the VAWG had become generally exacerbated in
Guatemala.212 Yet, the Court did not expound on why the danger was not real
and immediate for women and girls in this dangerous climate. This nebulous
reasoning does not embrace women and girls as members of a particularly
affected social group. At the same time, it appears to acknowledge that the
individual woman is at risk in the context of widespread violence.
The IACtHR seems willing to solve the problem of a widespread risk of
violence, but still struggles to be consistent in its approach on whether such
contexts give rise to state responsibility. In Veliz Franco, the Court was
satisfied that Guatemala had taken enough measures to combat VAWG and
was therefore not internationally responsible.213 Although questionable on the
facts, the reasoning in Veliz Franco is legally sound, unlike in the Cotton Field
and Velásquez Paiz Cases. By contrast, the Court considered that Mexico and
Guatemala had not taken enough preventive measures in the Cotton Field
209 Sosa (n 18) 95 and 103.
210 Cotton Field Case (n 13) para. 282.
211 Veliz Franco v. Guatemala (n 43) paras 78 and 139.
212 Velásquez Paiz v. Guatemala (n 12) para. 111.
213 Veliz Franco v. Guatemala (n 43) paras 82 and 139.
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Femicide and the Inter-American human rights system
Case, without attaching legal consequences to these (implicit) breaches.214 The
discussion of the preventive measures in relation to the structural risk implies
that the Court realized that a real or immediate risk existed for the female
social group more generally and that preventive measures would effectively
meet their international responsibility.
The IACtHR may have intended to avoid providing a positive ruling on this
issue, as it may have been concerned with limiting state responsibility for inac-
tion vis-à-vis widespread risks. In the Cotton Field Case, the Court stated that,
even though women and girls in Ciudad Juarez were at particular risk, ‘these
factors do not impose unlimited responsibility for any unlawful act against
such women.’215 Conversely, the Court did not hesitate to recognize that
Honduras was responsible for inaction in the context of patterns of enforced
disappearances, mainly committed against men and boys.216 Moreover, the
IACtHR’s application of the Osman test overlooks that a woman’s abduction
in Ciudad Juarez was rarely preceded by those incidents which could constitute
a warning similar to the domestic violence cases. Past human rights violations
of the same nature affecting many women and girls in Ciudad Juarez should
have triggered state responsibility. The fundamental problem with the current
Osman test is that it allows States to tolerate, and even create, contexts of
widespread violence against women with impunity.217 Finally, the Court made
clear that state responsibility is engaged when States fail to investigate VAWG
with a gender perspective—the duties concerning investigations with a gender
perspective being applicable irrespective of whether the violence is committed
by state or non-state actors.
González et al. v. Mexico (Cotton Field) (2011)
González et al. v. Mexico on Ciudad Juarez’ femicide crime waves is the
vanguard femicide case, which set the standards for a human rights-centered
approach to femicide.218 The case dealt with the disappearances of three young
women: Esmeralda Herrera’s last contact was a phone call with a friend as she
was getting ready for a party; Laura Ramos was last seen after she was denied
entry to her workplace for arriving a few minutes late; Claudia González
never returned home after leaving the sewing factory where she worked. The
three women were between 17 and 20 years old. Shortly after they vanished,
their mothers reported their disappearances to the police. However, the police
214 Cotton Field Case (n 13) para. 262.
215 Ibid., para. 282.
216 Velásquez Rodríguez v. Honduras (n 42) paras 172–174.
217 See Cotton Field Case (n 13) para. 282.
218 Ibid., paras 127 and 164.
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196 Conceptualizing femicide as a human rights violation
were negligent, unhelpful, and even openly refused to act, referring to the
72-hour waiting period before missing person cases could be investigated.219
In November 2001, the women’s severely mutilated bodies––parts of their
breasts having been sliced off and their heads scalped––were found along
with other female corpses in a cotton field.220 The Court held that Mexico had
failed to protect the three women from violence, violating the victims’ right
to life (Art. 4(1) ACHR), their right to personal integrity and personal liberty
(Arts 5(1)–(2), and 7 ACHR), their right to judicial protection and due process
(Arts 8 and 25 ACHR), the rights of the child (Art. 19 ACHR), and its duty to
investigate VAWG (Art. 7(b)–(c) Belém do Pará Convention).
The IACtHR found that the three women had been subjected to gender-based
violence under Article 1 Belém do Pará Convention and the CEDAW
Committee’s General Recommendation No. 19.221 Mexico had admitted that
a culture of discrimination existed, which led to the perception that crimes
against women were insignificant and therefore did not require specific imme-
diate action.222 In this climate of widespread violence, the authorities stereo-
typed the victims, which ultimately prevented the police from doing their job
and help search for the missing women.223 The police told the victims’ mothers
respectively:
Esmeralda Herrera Monreal: ‘[she had] not disappeared, but was out with her
boyfriend or wandering around with friends.’224
Claudia Yvette González: ‘she is surely with her boyfriend, because girls were
very flighty and threw themselves at men. [When her mother filed a complaint about
the disappearance, she was told] that perhaps her daughter had gone off with her
boyfriend, and would soon return home.’225
Laura Berenice Ramos Monárrez: ‘all the girls who get lost, all of them, […] go
off with their boyfriend or want to live alone. [When she asked the police agents to
accompany her to look for her daughter; they said] no Señora, it’s very late, we have
to go home and rest and you should wait for your moment to look for Laura […].
[G]o home and relax, have some [beer] and offer a toast to our health; because we
can’t go with you.’226
The police’s stereotypes convey three sexist misconceptions. The police
appeared to think that all women act without concern for others’ feelings. They
219 Ibid., paras 197–200.
220 Ibid., para. 277.
221 Ibid., paras 133, 128–132, 398 and 395.
222 Ibid., para. 398.
223 Ibid., para. 401.
224 Ibid., para. 198.
225 Ibid., para. 199.
226 Ibid., para. 200.
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Femicide and the Inter-American human rights system
blamed the victim for being with her boyfriend or leaving her home contrary
to the traditional role of staying within the private sphere of the home. Finally,
they considered that women would be safe with their boyfriends. Why are
seemingly innocent, if derogatory, remarks about women and girls’ behavior
relevant in the violation of their human rights? The IACtHR described it as
follows:
The result [of stereotyping] is that prosecutors, police and judges fail to take action
on complaints of violence. These biased discriminatory patterns can also exert
a negative influence on the investigation of such cases and the subsequent weighing
of the evidence, where stereotypes about how women should conduct themselves in
interpersonal relations can become a factor.227
One crucial aspect of this stereotyping is that it leads to the authorities’ inac-
tion at a time when they could still have rescued the victims.228 Their inaction
fosters a climate where harm to women and girls is seen as less important
than human rights violations committed against men and boys.229 Unpunished,
the abductions of, sexual violence against, and rape of women are likely to
escalate to widespread violence since assailants become aware that they will
not suffer punishment for harming the female social group.230 In the Court’s
eyes, such widespread violence in Ciudad Juarez was often gender-based,
being mainly directed against women and girls.231 While Mexico had referred
to femicide as ‘the phenomenon of Ciudad Juarez,’232 and expert witnesses
described the events as femicide,233 the IACtHR appeared reluctant to use the
term ‘femicide,’ likely because of its inconsistent usage.
The Mexican authorities failed to investigate the murders of the three
young women. The perpetrators were never identified. Since their bodies were
dumped in a cotton field, the crimes looked like they must have been com-
mitted in the public sphere. However, the perpetrators may have committed
these acts in the ‘private sphere,’ they may even have known or have been in
a relationship with the victims.234 Segato contends that the bodies had likely
been dumped in public to assert that perpetrators have the power to kill women
227 Ibid., para. 400.
228 Ibid., para. 208.
229 Ibid., paras 398–400.
230 Ibid., para. 161.
231 Ibid., paras 228–231.
232 Ibid., para. 139.
233 Ibid., para. 141.
234 Meyersfeld (n 16) 52–53.
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198 Conceptualizing femicide as a human rights violation
without being punished.235 The fact that many acts of violence in Ciudad Juarez
were committed in an intimate partnership or in revenge for romantic rejection,
and therefore ‘solely’ relate to domestic violence cases, remains relevant.236
As non-state actors had presumably harmed and killed the three victims, the
IACtHR inquired into whether Mexico was responsible for inaction by failing
to protect Claudia, Laura, and Esmeralda’s human rights.237
At the heart of the Cotton Field Case was the State’s duty to prevent human
rights violations—i.e., the right to life, the right to personal liberty and secu-
rity, the right of access to justice, and the right to personal integrity. To assess
whether Mexico was responsible for their disappearance through inaction, the
IACtHR applied the Osman test. The Court examined ‘two crucial moments in
which the obligation of prevention [arises].’238 First, the IACtHR considered
the widespread risk for women and girls in Ciudad Juarez. In the Court’s
words, this is the risk ‘prior to the disappearance of the victims.’239 Secondly,
the Court assessed the explicit risk faced by the three young women ‘before the
discovery of their bodies.’240
The IACtHR began by considering the risk ‘prior to the disappearance of
the victims’—i.e., the widespread risk for the female social group in Ciudad
Juarez—independent from Laura, Claudia, and Esmeralda’s actual kidnap-
pings. The Court acknowledged that the widespread threat against the female
social group, originating in sexist societal structures, could in principle attract
state responsibility.241 The Court also identified the female social group at
risk as including ‘particularly young women from humble backgrounds.’242
Furthermore, the Court found that ‘the State was fully aware of the danger
faced by these women of being subjected to violence.’243 Addressing the third
part of the Osman test—i.e., whether Mexico had attempted to address this
structural violence—the Court examined the measures Mexico had taken to
respond to acts of femicide at length: Mexico had adopted specific laws on
violence against women, it had created specialized agencies (a prosecution unit
235 Rita Laura Segato, ‘Territory, Sovereignty, and Crimes of the Second State’ in
Rosa-Linda Fregoso and Cynthia Bejarano (eds), Terrorizing Women, Feminicide in
the Americas (Duke University Press 2010) 79.
236 See IAC Report on Ciudad Juarez.
237 Caroline Bettinger-Lopez, ‘The Challenge of Domestic Implementation of
International Human Rights Law in the Cotton Field Case’ (2012) 15 City University of
New York Law Review 115–334 at 319.
238 Cotton Field Case (n 13) para. 281.
239 Ibid., para. 281.
240 Ibid.
241 Ibid., para. 279.
242 Ibid., para. 282.
243 Ibid., para. 279.
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199
Femicide and the Inter-American human rights system
and a national institute) dealing with the murders of women in Ciudad Juarez,
and it had adopted specialized training for state authorities.244 In 2001, when
the three victims were abducted, Mexico had however not yet implemented
these measures to protect women from violence.245 In this respect, ‘the Court
[could] only note that the absence of a general policy which could have been
initiated at least in 1998 […] is a failure of the State to comply in general
with its obligation of prevention.’246 Yet, the Court failed to attach any legal
consequences to the breach relating to the preventive measures, although such
a breach would have suggested that Mexico had not complied with Osman.
The IACtHR instead maintained that ‘it has not been established that [the
State] knew of a real and imminent danger for the victims in this case.’247
This statement contradicts the Court’s recognition of Ciudad Juarez as a place
where women and girls’ lives are at risk.248 The Court’s reasoning appears
to suggest an implicit requirement for a tragic or fatal incident before state
responsibility is triggered.
Subsequently, the IACtHR considered the risk inherent in the time-lapse
between when the three disappearances were reported and their bodies were
found, thus assessing the State’s preventive obligations regarding an indi-
vidual abduction. The Court found that Mexico ‘was aware that there was
a real and imminent risk that the victims would be sexually abused, subjected
to ill-treatment and killed’ after the three women were reported missing and
before their bodies were found.249 In this widespread context of violence, an
obligation of ‘strict due diligence in regard to reports of missing women’ exists
pursuant to Article 7(b) Belém do Pará Convention.250 The Court stated that
it was crucial to act within the first few hours in cases of disappearances.251
The omission of the State to take the reports of missing women seriously was
‘particularly serious owing to the context.’252 The Court held that the State did
not sufficiently endeavor to prevent the victim’s human rights violations.253
The IACtHR also concluded that Mexico had failed to comply with its
‘procedural obligation’ to investigate VAWG. The Court pertinently noted
that the investigation standards apply to non-state actor committed violence:
244 Ibid., paras 262–279.
245 Ibid., paras 273 and 279.
246 Ibid., para. 282.
247 Ibid.
248 Ibid., para. 279.
249 Ibid., para. 283.
250 Ibid., paras 283–284.
251 Ibid., para. 283.
252 Ibid., para. 284.
253 Ibid., para. 252.
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200 Conceptualizing femicide as a human rights violation
‘if their acts would not be investigated genuinely, they would be, to some
extent, assisted by the public authorities, which would entail the State’s
international responsibility.’254 In the context of high levels of non-state actor
VAWG, States have an augmented duty to investigate killings, ill-treatment,
and deprivation of personal liberty of women and girls.255 Many irregularities
had characterized the Mexican investigation into acts of femicide: delays, fab-
rication of guilt, poor handling of evidence, and the failure to consider the acts
as gender-based.256 The IACtHR considered that Mexico should have adopted
a gender perspective—i.e., to ‘undertake specific lines of inquiry concerning
sexual assault, which must involve lines of inquiry into the corresponding
patterns in the area.’257
One shortcoming of the Cotton Field Case concerned the IACtHR’s failure
to classify the sexual violence against women as violations of the prohibition
of torture, rather than the right to personal integrity.258 Judge Medina Quiroga
rightly criticized the Court’s approach to sexual violence and rape in her
concurring opinion. First, she argued that the severe sexual injuries inflicted
on the women’s bodies meet the threshold required under the prohibition of
torture, clarifying that the Court considers acts as torture, when ‘the principal
factor is the severity of the act and how it affects the victim.’259 Second, the
judge opposed any requirement of state participation (by action or inaction) in
torture, remarking that the IACPPT did not require state officials to be present
in acts of torture.260 She contended that the Convention does not define the
scope of torture. Therefore, the IACtHR must interpret the definition of torture
and, in doing so, could take a different route than the CAT which requires
state action.261 Judge Medina Quiroga’s concurring opinion presents the start
of a shift in the Court’s case law recognizing rape as torture. However, it took
until López Soto in 2018 for the Court to find that private individuals can
torture women and girls.262
254 Ibid., para. 291.
255 Ibid., para. 293.
256 Ibid., para. 388.
257 Ibid., para. 455.
258 Ibid., Concurring Opinión of Judge Medina, para. 1.
259 Ibid., para. 2.
260 Ibid., para. 7.
261 Ibid., paras 12–13.
262 López Soto v. Venezuela (n 12).
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201
Femicide and the Inter-American human rights system
Veliz Franco v. Guatemala (2014)
Maria Isabel Veliz Franco, a 15-year-old student, disappeared on 16 December
2001. After leaving work, she was pulled into a truck by an unidentified
individual.263 According to Ms Rosa Elvira Franco, her mother, Maria Isabel
was the girlfriend of a mara (gang member), and her daughter had wanted to
end the relationship.264 Ms Franco informed the authorities of her daughter’s
disappearance almost 20 hours before her body was found. She told them that
she had searched for her daughter in vain and added that Maria Isabel might
have been with a man shortly before her abduction.265 Guatemalan authorities
told her to come back later. When she did, the authorities informed her that
they could not take her complaint at that time, she had to wait 24 to 62 hours.
As a result, Ms Franco made inquiries at her daughter’s workplace herself and
learned that she had left with a man who may have harassed her in the past.266
Two days after Maria Isabel’s disappearance, her body was found, marked
with signs of violence. The forensic expert told Ms Franco that Maria Isabel
had likely been sexually abused and killed on the night of 17 December 2001,
suggesting that she was still alive one day after having been abducted, on the
day her mother had contacted the police.267
The state attorneys told Maria Isabel’s mother that her daughter’s lifestyle
made her a prostitute, implying that it was her own fault that she was dead.
They also mocked her mother during the investigation: the Prosecutor laughed
at Ms Franco’s pain, stating that her daughter was emotionally unstable; they
referred to Maria Isabel as ‘the crazy one.’ More than 12 years after Maria
Isabel’s disappearance, the investigation was still in the preparatory stages.268
Although a witness had seen the plastic bag with Maria Isabel’s corpse being
dumped on the street by a woman, and Ms Franco had Maria Isabel’s calls
analyzed at her own expense, the police authorities did not investigate the
available evidence until three years later. The autopsy had failed to establish
whether Maria Isabel had been drugged or raped. Furthermore, evidence was
mishandled: some clothing items were lost during the investigations. 269
The IACtHR held that Guatemala had violated its obligation to ensure Maria
Isabel’s free and full exercise of the right to life (Art. 4(1) ACHR), the right to
personal integrity (Art. 5(1) ACHR), personal liberty, the rights of a child (Art.
263 Veliz Franco v. Guatemala (n 43) para. 94.
264 Ibid.
265 Ibid., para. 146.
266 Ibid., para. 94.
267 Ibid., paras 95 and 98.
268 Ibid., para. 118.
269 Veliz Franco v. Guatemala (n 43) para. 199; Muñoz Vargas (n 205) 89.
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202 Conceptualizing femicide as a human rights violation
19 ACHR), and the obligations to ensure the rights without discrimination
(Arts 1(1) and 24 ACHR), as well as the obligations contemplated in Article
7(b) Belém do Pará Convention.270 The Court did not use the term ‘femicide’
for the acts of violence.271 The Court also found that Guatemala had violated
Ms Franco’s right to personal integrity (Art. 5(1) ACHR), for the harassment
and threats she was subjected to throughout the proceedings.272
The IACtHR considered that the investigation of Maria Isabel’s murder
was marked by stereotypes against her and her mother, thereby discriminat-
ing against them.273 The Court criticized the investigation’s focus on ‘Maria
Isabel’s way of dressing, her social and nightlife, her religious beliefs, and
also her family’s lack of concern or supervision,’ which was reflected in the
police’s reaction to her disappearance and official reports.274 Notably, the
Prosecutor had told Ms Franco that her daughter ‘was a tart, a prostitute,’ and
an expert report concluded that Maria Isabel went out with too many different
boyfriends.275 The Court found that the investigation was used to blame Maria
Isabel and her mother for the murder, thereby discriminating against Maria
Isabel and violating her mother’s personal integrity.276 As a result of this
attitude, the authorities had failed to investigate the circumstances of her death
and to identify the perpetrator.277
The IACtHR also experimentally explored international legal standards
which combat stereotypes about previous sexual conduct. The Court cited
the ICC’s Rules of Procedure and Evidence, which state that ‘[c]redibility,
character or predisposition to sexual availability of a victim or witness cannot
be inferred by reason of the sexual nature of the prior or subsequent conduct
of a victim’ and ‘a Chamber shall not admit evidence of the prior or subse-
quent sexual conduct of a victim.’278 Additionally, the IACtHR referred to the
Istanbul Convention, which admits evidence on prior sexual conduct ‘only
when it is relevant and necessary.’279 Adapting these international standards
to the Inter-American human rights system, the Court held that ‘opening lines
of investigation into the previous social or sexual behavior of the victims in
cases of gender violence is merely a manifestation of policies or attitudes
270 Veliz Franco v. Guatemala, ibid., para. 158.
271 Ibid., para. 132.
272 Ibid., paras 233–242.
273 Ibid., paras 214–215.
274 Ibid., para. 213.
275 Ibid., paras 212–213.
276 Ibid., para. 212.
277 Ibid.
278 Ibid., para. 209.
279 Ibid., citing Art. 54 Istanbul Convention.
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203
Femicide and the Inter-American human rights system
based on gender stereotypes.’280 Finally, the IACtHR pointed out that the use
of stereotypes had actually influenced the context of VAWG in Guatemala.281
The Court’s discussion reiterates that the persisting impunity in femicide, as
an aspect of femicide, can be tackled by ensuring that authorities react swiftly
regardless of the victim’s personal background.
Based on the CEDAW Committee’s General Recommendation No. 19, the
IACtHR further established that Maria Isabel’s murder took place in a discrim-
inatory context of violence against women in which she was targeted ‘owing
to hatred or contempt based on her condition as a woman.’282 The Court found
it probable that Maria Isabel’s murder was gender-based but was reluctant to
make a definitive finding as the State had failed to investigate her murder.
In deciding whether murder is gender-based, the Court relied on standards
detailed in the Latin American Model Protocol, a policy instrument to help
authorities identify femicide victims and conduct better investigations into
potential femicide cases.283 The IACtHR specifically looked at how Maria
Isabel was killed, and the sexual violence, mutilations, or extreme cruelty used
against her, as sexual violence and cruelty are indicators for gender-based vio-
lence.284 The Court noted that she was probably subjected to sexual violence
as a forensic doctor had told Ms Franco that her daughter was raped before she
died.285 Moreover, her body was found with ‘signs of strangulation, a wound to
the head, a cut on one ear and bites on her upper arms; her head was covered by
towels and a plastic bag, and she had food in her mouth and nose; the bottom
part of her blouse and underpants were torn.’286 According to the Court, any
uncertainty about whether her murder was gender-based, was attributable to
Guatemala’s failure to investigate her death.287
However, as in the Cotton Field Case, the IACtHR did not hold Guatemala
responsible for failing to prevent widespread violence. Yet, the Court exam-
ined (1) the widespread violent context in which Maria Isabel disappeared
in depth, before (2) discussing her individual disappearance.288 Of particular
relevance is that the Court recognized the existence of generalized VAWG in
certain geographical locations, Guatemala City and Escuintla, and appeared
to suggest that a defined social group, i.e., ‘certain women and girls’ may be
280 Ibid.
281 Ibid., para. 213.
282 Ibid., para. 211.
283 Latin American Model Protocol (n 53) 64.
284 Veliz Franco v. Guatemala (n 43) paras 178 and 187.
285 Ibid., para. 211.
286 Ibid., para. 178.
287 Ibid., paras 178–183.
288 Ibid., para. 138.
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204 Conceptualizing femicide as a human rights violation
at risk of such violence.289 The IACtHR noted that Guatemala should adopt
measures to address this context on a ‘juridical, political, administrative and
cultural’ level and ‘prevent risk factors and also strengthen institutions so that
these can respond effectively to VAWG cases.290 Surprisingly, the IACtHR
was satisfied that ‘prior to December 2001, the State had implemented actions
in relation to the problem of violence against women,’ namely, the adoption of
a femicide law and a domestic violence law.291 Apart from these legal meas-
ures, the IACtHR remained silent on whether Guatemala had taken policy or
social measures, which the Court had required in the Cotton Field Case.292
Centering on Maria Isabel’s situation with regard to that risk, the Court con-
sidered that Guatemala could not have known that Maria Isabel herself was in
real and immediate danger prior to her disappearance.293
As to the second time-frame, the IACtHR held that once Maria Isabel had
been reported missing, the domestic authorities knew of a real and immediate
risk that she ‘would be attacked’ in the light of Guatemala’s femicide preva-
lence.294 The Court noted that Ms Franco’s report within this context should
have alarmed the authorities as to the possible violations of Maria Isabel’s
rights.295 In addition, the State must have been aware of the context of impunity
with which VAWG cases were treated.296 The Court found that the State should
have known that Maria Isabel’s life was in danger.297 Guatemala had failed to
undertake measures to prevent violations of her rights. The Court concluded
that Maria Isabel died after her mother filed her complaint, and that her life
was in jeopardy at the time Guatemalan authorities became aware of her disap-
pearance.298 Considering that her situation as a female and as a child both sepa-
rately triggered the State’s enhanced due diligence obligation, the Court found
that Guatemala should have swiftly investigated the violence against her.299
Against this background, the State’s due diligence obligation was prompted as
soon as the authorities were advised of Maria Isabel’s disappearance.300
The IACtHR held that Guatemala had violated Maria Isabel’s right to equal
access to justice and fair trial in failing to prevent violence against her under
289 Ibid., para. 78.
290 Ibid., para. 135.
291 Ibid., para. 139.
292 See Cotton Field Case (n 13) para. 258.
293 Veliz Franco v. Guatemala (n 43) para. 139.
294 Ibid., paras 141 and 154.
295 Ibid., paras 147–149.
296 Ibid., para. 153.
297 Ibid., para. 147.
298 Ibid., para. 144.
299 Ibid., paras 133–134.
300 Ibid., paras 155 and 157.
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205
Femicide and the Inter-American human rights system
Articles 8 and 25 ACHR and strengthened by Articles 7(b) and 7(c) Belém do
Pará Convention.301 Guatemalan authorities had failed to investigate whether
Maria Isabel’s murder included sexual violence and whether it was there-
fore gender-based.302 The IACtHR stressed that, in addition to her murder,
Guatemala should have tried to find out whether she was tortured or subjected
to sexual violence before she died.303 According to the Court, an effective
investigation strengthens women’s trust in state institutions, and ‘society’s
duty to reject violence against women.’304 The first stages of proceedings,
when evidence is collected and autopsies performed, are particularly impor-
tant to determine whether crimes involve gender-based violence and sexual
violence or cruel acts.305 By failing to properly and expeditiously investigate
Maria Isabel’s murder, Guatemala had also violated the right of access to
justice of Maria Isabel Veliz Franco’s mother.306
Velásquez Paiz v. Guatemala (2015)
In 1995, a 19-year-old law student, Claudina Isabel Velásquez Paiz, went
missing after leaving a party.307 Her parents called the police on the same
night she disappeared. A police patrol was dispatched to the area at 3:00
AM.308 Accompanied by Ms Velásquez Paiz’s parents, the police scoured the
streets.309 After a while, the police told her parents that they would stop search-
ing, and that her parents needed to wait 24 hours until they could file a missing
person’s report.310 After the police left, Ms Velásquez Paiz’s parents, together
with friends and relatives, kept searching for her until the early morning.
According to her boyfriend, Ms Velásquez Paiz had left his car on the night
she went missing after they had a fight. He had not been able to follow her,
because she walked into a pedestrian zone.311 At 5:00 AM, her parents again
tried to file a police report, but they were told about the waiting period once
301 Ibid., para. 178.
302 Ibid., para. 196.
303 Ibid., para. 188.
304 Ibid., para. 185.
305 Cotton Field Case (n 13) para. 310. See also United Nations Manual on
the Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary
Executions-Model Protocol for a Legal Investigation of Extra-Legal, Arbitrary and
Summary Executions (Minnesota Protocol) (1991) UN Doc E/ST/CSDHA/.12.
306 Veliz Franco v. Guatemala (n 43) para. 216.
307 Velásquez Paiz v. Guatemala (n 12) paras 51–52.
308 Ibid., para. 121.
309 Ibid., para. 125.
310 Ibid., paras 53–54.
311 Ibid., para. 127, fn. 210.
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206 Conceptualizing femicide as a human rights violation
more. Half an hour later, Ms Velásquez Paiz’s body was found in the street,
bearing signs of beatings and sexual abuse. Her parents were called to identify
her body in a morgue.312 At 8:30 AM, three hours after her death, the police
report of Claudina Velásquez Paiz’s disappearance was finally registered.313
The IACtHR found that Guatemala had violated various human rights,
including the right to life (Art. 4 ACHR) and the right to personal integrity
(Art. 5 ACHR) by failing to take reasonable measures to prevent the violation
of these rights under Article 7 Belém do Pará Convention.314 In addition to
the right to personal integrity, Ms Velásquez Paiz’s family members’ right
of access to justice was also violated.315 The IACtHR considered that Ms
Velásquez Paiz’s right to equal access to justice was violated.316 From the start
of the proceedings, the domestic authorities had inadequately investigated her
case;317 they had referred to her attire and the place where she went missing.318
The domestic authorities considered her a cualquiera (a nobody) due to the
fact that her body was found in an underprivileged neighborhood and her
clothes smelled of alcohol.319 Based on Ms Velásquez Paiz’s belly piercing, the
female investigator from the ‘Unit on Female Homicides’ suggested that she
was a prostitute who had provoked her own murder.320 Various police reports
and psychiatric assessments replicated these stereotypes.321 A psychiatric
report, issued three years after Ms Velásquez Paiz’s death, stated:
[She was ] imprudent, because she was in a risk situation and did not consider the
consequences of walking alone at night; that shows an impulsive act, immaturity
and irresponsibility and perhaps she was even under the influence of drugs or
alcohol […] in her personal and social relationships the consummation of alcohol
is predominant and the reunion organized by her friends constituted priorities in her
life; her family as well as her University studies seemed secondary, as she skipped
classes to be with her friends.322
These stereotypes translated to an inadequate investigation into Ms Velásquez
Paiz’s death. Expert witness Bovino noted that ‘the qualifier “passionate”
312 Ibid., paras 53–56.
313 Ibid., para. 125.
314 Ibid., para. 132.
315 Ibid., paras 212–220.
316 Ibid., para. 175.
317 Ibid., para. 196.
318 Ibid., paras 176 and 200.
319 Ibid., paras 177 and 181.
320 Ibid., para. 179, fn. 277.
321 Ibid., paras 184 and 187.
322 Ibid., para. 189.
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207
Femicide and the Inter-American human rights system
emphasizes the behaviour of the aggressor.’323 Expert witness Chinkin point-
edly explained that the authorities deemed Ms Velásquez Paiz’s murder trivial
on the presumption that she was a prostitute, thus remaining inactive when
confronted with her murder.324 The IACtHR stressed that so-called ‘moral’
character must have no bearing on such proceeding, and that, in any event, the
deaths of prostitutes must also be investigated thoroughly.325 Yet, the police
had considered the murder of a woman insufficient to warrant an investi-
gation.326 Ms Velásquez Paiz’s murder had been inadequately investigated,
thereby violating her right to equal access to justice.327
Confirming its previous case law, akin to the Cotton Field and Veliz
Franco Cases, the IACtHR examined the widespread context of violence
before Ms Velásquez Paiz’s disappearance, and her individual risk once she
was reported missing.328 As to the context overarching Ms Velásquez Paiz’s
disappearance, the Court considered that violence against the female social
group in Guatemala was at heightened levels until 2015, without specifying
the provinces where women were particularly at risk as it had done in Veliz
Franco.329 Since 2001, this violence had also become crueler, including
domestic violence, abduction, sexual harassment, and sexual violence.330 The
Court’s approach contrasted with its approach in Veliz Franco one year earlier,
where it had held that Guatemala had taken enough steps to address the current
context, and that absent immediate danger for an individual, state responsi-
bility was not engaged. The IACtHR discussed the many reports issued by
the CEDAW Committee and Amnesty International criticizing the measures
adopted by Guatemala because they were ineffective or lacked sufficient
funding and political will.331 The Court concluded that Guatemala itself had
said that the prevention of VAWG posed a challenge.332 The IACtHR seems
to have been not entirely satisfied with Guatemala’s preventive effort. Absent
an unequivocal ruling on the issue, it remains unclear whether the Court rec-
ognized Guatemala’s responsibility for widespread VAWG.333 Velásquez Paiz
appears to carefully open the door to holding States accountable for remaining
passive in the face of widespread acts of VAWG.
323 Ibid., para. 187.
324 Ibid., para. 181.
325 Ibid., paras 182 and 184.
326 Ibid., para. 181.
327 Ibid., para. 191.
328 Ibid., para. 110.
329 Ibid., para. 111.
330 Ibid.
331 Ibid., paras 118–120.
332 Ibid., para 120.
333 Ibid.
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208 Conceptualizing femicide as a human rights violation
As to the second time-frame, from the moment her parents had called the
police and the police patrol arrived, at 3:00 AM, the Court considered that the
State knew of a real or immediate risk to Ms Velásquez Paiz’s rights, especially
in the light of the widespread homicides of women and girls in Guatemala.334
The Court noted that the authorities should presume that a missing woman is
still alive until she is found.335 Despite the police patrol’s quick arrival at the
location where Ms Velásquez Paiz had disappeared, they failed to question
potential witnesses, merely patrolling the streets.336 The Court considered that
the police regarded her disappearance as a trivial matter not requiring urgent
investigation by failing to undertake immediate search efforts and by insisting
on the 24-hour waiting period.337 The Court found that the State’s actions had
been deficient in view of the threat to Ms Velásquez Paiz’s life and personal
integrity,338 as the State failed to take all reasonable measures to avert the risk
once she had vanished. Finally, the Court considered that the state authorities’
inaction in a climate of endemic violence against women was particularly
troubling and contrary to Article 7 Belém do Pará Convention.339
The IACtHR reiterated that, where VAWG is at stake, authorities must
apply a gender perspective, i.e., the investigation should go beyond the murder
and examine the potential commission of sexual violence.340 The Court con-
veniently examined whether her murder was gender-based itself. Based on
the state of her body when she was found, the Court found that her murder
had probably been gender-based.341 Sexual abuse was likely given that her
brassiere had been removed, her trousers were unzipped, her blouse was inside
out, and traces of semen were found.342 The IACtHR then provided useful
guidelines about what an adequate investigation into potential acts of femicide
should entail: States should become active and safeguard evidence within the
first few hours—i.e., preservation of vaginal fluids and autopsy of the vaginal
area.343 Guatemalan authorities had failed to investigate the crime scene and to
preserve the evidence.344 The expert who examined her body four years later
added to the forensic report that sexual violence had possibly been involved,
and that the victim probably knew her attacker since some of the violence was
334 Ibid., paras 120–121.
335 Ibid., para. 122.
336 Ibid., para. 126.
337 Ibid., para. 130.
338 Ibid., para. 126.
339 Ibid., para. 133.
340 Ibid., paras 147 and 196.
341 Ibid., paras 150–156.
342 Ibid., para. 192.
343 Ibid., para. 148.
344 Ibid., paras 156–157, 161, 168 and 185.
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Femicide and the Inter-American human rights system
inflicted post mortem. The perpetrator had likely killed her to ensure that she
could not identify him.345 The Court concluded that the domestic authorities
had failed to comply with their obligations to investigate violence against Ms
Velásquez Paiz.346
SEXUAL TORTURE
López Soto and Atenco concern different actors, but both spearhead the rec-
ognition of sexual torture. The former relates to an individual abduction and
subsequent sexual enslavement by an influential private individual; the latter
concerns the abduction, sexual harassment, and rape of female protestors
by state actors. The IACtHR recognized that rape violated the prohibition
of torture in both cases. At the heart of the Court’s most recent views on
the issue of rape as torture lies its detailed analysis of the purpose pursued
in rape—i.e., rape as torture is intended to exercise control over women
in society—expanding its previously recognized discriminatory purpose of
rape. Ultimately, the IACtHR’s recognition of rape as torture, irrespective of
whether the rape is committed by state or non-state actors, supports the con-
tention that acts of femicide rise to the level of torture. Accordingly, I consider
that only the violence against female social groups that amounts to torture
constitutes femicide. The severity of femicide is measured by reference to the
prohibition of torture and the right to life.
López Soto v. Venezuela (2018)
In 2001, 18-year-old Linda López Soto was abducted by Luis Antonio Carrera
Almoina, an influential private individual.347 Ms López Soto was held hostage
in hotels and private apartments for over three months, while Mr Carrera
Almoina repeatedly raped, tortured, and emotionally abused her.348 Her abduc-
tor called Ms López Soto’s sister, Ana Cecilia, informing her that Linda would
not return home. Ana Cecilia immediately reported her sister’s abduction
to the police (and on an additional five occasions), providing the assailant’s
name and phone number.349 The authorities remained inactive, merely stating
that she was probably with her boyfriend.350 Ms López Soto was rescued,
as she managed to call for help herself. She was found severely mutilated,
345 Ibid., para. 165.
346 Ibid., para. 168.
347 López Soto v. Venezuela (n 12) paras 59–60 and 66.
348 Ibid., paras 60–63.
349 Ibid., paras 67–68.
350 Ibid., para. 68.
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210 Conceptualizing femicide as a human rights violation
dehydrated, and underweight and remained hospitalized for almost one year.351
The IACtHR found the following rights to be violated: her right to humane
treatment (Art. 3 ACHR), her right to be free from torture (Art. 5(2) ACHR),
her right to personal liberty (Art. 7 ACHR), her right to freedom of movement
(Art. 11 ACHR), her right to be recognized as a person before the law (Art.
22 ACHR), her right to be free from sexual slavery (Art. 6(1) ACHR) and her
right to equal access to justice (Arts 8 and 25 ACHR and Art 7 Belém do Parà
Convention).352
The López Soto Case’s court panel, composed of five male judges, delivered
one of the most feminist judgments in the IACtHR’s history.353 The Court
recognized that rape committed by private actors may amount to torture; it
considered the domination of women the purpose of rape; and it canvassed the
elements of sexual slavery. This positive outcome for women’s rights is prob-
ably due to the victim’s survival, the clarity of the facts and the Court’s will-
ingness to use a gender perspective.354 Without Ms López Soto’s testimony,
the Court might have approached the case in the same way as the Cotton Field,
Veliz Franco, and Velásquez Paiz Cases, i.e., considering sexual violence as
a violation of her right to personal integrity. Venezuela did not dispute that
the perpetrator had sexually abused, and verbally and physically assaulted Ms
López.355 At stake was whether Venezuela’s responsibility was engaged for
acts of sexual enslavement and torture committed by private individuals. The
State argued that it did not incur responsibility for sexual violence and rape
during her captivity since a private actor had committed these acts.356
The IACtHR held that Ms López Soto had been sexually enslaved, under
Article 6(1) ACHR, which stipulates that ‘[n]o one shall be subject to slavery
or to involuntary servitude, which are prohibited in all their forms, as are
351 Ibid., paras 70–75.
352 Ibid., paras 178 and 182.
353 The Judges were Eduardo Ferrer Mac-Gregor Poisot (President), Eduardo Vio
Grossi (Vice-President), Humberto Antonio Sierra Porto, Eugenio Raúl Zaffaroni, and
Patricio Pazmiño Freire.
354 The participation of female judges, while important in terms of representation,
does not imply a gender perspective. See Ratna Kapur, ‘Gender, Sovereignty and the
Rise of Sexual Security Regime in International Law and Postcolonial India’ (2013) 14
Melbourne Journal of International Law 317–345 at 340.
355 López Soto v. Venezuela (n 12) para. 124; see also Daniela Kravetz, ‘Holding
States to Account for Gender-Based Violence: The Inter-American Court of Human
Rights’ decisions in López Soto vs Venezuela and Women Victims of Sexual Torture
in Atenco vs Mexico’ EJIL: Talk! (19 January 2019), www .ejiltalk .org/ holding -states
-to -account -for -gender -based -violence -the -inter -american -court -of -human -rights
-decisions -in -lopez -soto -vs -venezuela -and -women -victims -of -sexual -torture -in -atenco
-vs -mexico/ #more -16824.
356 López Soto v. Venezuela (n 12) para. 124.
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211
Femicide and the Inter-American human rights system
the slave trade and traffic in women.’ While Article 6(1) does not list sexual
slavery, the Court pragmatically reinterpreted the provision to include sexual
slavery, thereby making the specific harm inflicted on her visible.357 Building
on the Hacienda Verde Workers v. Brazil Case, where the Court dealt with the
prohibition of slavery, in López Soto, the Court developed the legal require-
ments for sexual enslavement.358 In sexual slavery, (1) the assailant exercises
some type of ownership over the victim ‘to the point of nullifying the person-
ality of the victim,’ and (2) sexual acts are involved which ‘restrict or nullify
her sexual autonomy.’359
Ms López Soto’s physical and sexual autonomy was entirely controlled by
her assailant. From the time she was captured until her rescue, he exercised
dominion over her entire life: he imprisoned her, chained her to the bed,
decided on her meals, and determined when she went to the bathroom.360 In
addition, the perpetrator constantly threatened her with his critical political
connections, saying that he would never face the consequences for his acts
and that her sister should therefore withdraw her complaint.361 He also negated
her sexual autonomy through cruel sexual abuse towards her: he kept her
naked, burned her breasts, and forced her to watch and re-enact pornographic
scenes.362 The IACtHR concluded that it ‘considered it necessary to make
the sexual character of her enslavement visible, and thereby recognizing the
specific ways in which sexual slavery disproportionately targets women,
and which exacerbates the persisting historic subordination between men
and women.’363 By recognizing the sexual aspect of enslavement, the Court
partially remedied the inadequate inclusion of harm to women in the ACHR.364
The IACtHR held in its modern feminist judgment that VAWG could consti-
tute torture by private individuals, regardless of whether a state or a non-state
actor commits these acts.365 The Court thus finally acknowledged international
critiques, issued by Chinkin, MacKinnon, Medina and others, that the State
factor is present in VAWG as the State either commits or tolerates these acts.
The IACtHR first referred to Castro-Castro and Aydin, where the respective
Costa Rican and Strasbourg Courts had found that state-actor rape constituted
357 Ibid., para. 178.
358 Ibid., paras 173–174; Hacienda Brazil Verde Workers v. Brasil, Preliminary
Exceptions, Merits, Reparations and Costs, Inter-American Court of Human Rights
Series C No 318 (20 October 2016), para. 427.
359 López Soto v. Venezuela (n 12) para. 179.
360 Ibid., para. 180.
361 Ibid., para. 180, referring to fn. 266 (Linda López Soto’s testimony).
362 Ibid.
363 Ibid., para. 181.
364 See Hefti (n 15).
365 López Soto v. Venezuela (n 12) para. 189.
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212 Conceptualizing femicide as a human rights violation
torture.366 Remarkably, in López Soto, the IACtHR clearly distanced itself
from a state official requirement, noting that the prohibition of torture simply
required the three-prong test (intent, severe mental and physical suffering, and
prohibited purpose).367 The Court considered that Article 5(2) ACHR does not
define the scope of torture and that the Inter-American system does not require
a nexus to a state official. Subsequently, the Court examined whether Article 3
IACPPT requires state actors to be present in acts of torture. According to said
Article, criminal responsibility for torture arises for:
a. A public servant or employee who acting in that capacity orders, instigates
or induces the use of torture, or who directly commits it or who, being able
to prevent it, fails to do so.
b. A person who at the instigation of a public servant or employee mentioned
in subparagraph (a) orders, instigates or induces the use of torture, directly
commits it or is an accomplice thereto.
The IACtHR explained that Article 3 IACPPT, which lists responsibility
for acts of torture by state officials, refers to criminal as opposed to state
responsibility—the IACPPT does not require state officials to be present
in torture.368 Additionally, the Court referenced CAT Committee’s General
Comment No. 2 to emphasize that the State is responsible for private actors
when it allows or tolerates these acts, especially if it has failed to prevent
acts of torture.369 The IACtHR asserted that the gravity inherent in rape as
torture must be recognized to eradicate VAWG.370 An evolutionary and sys-
tematic interpretation of the prohibition of torture was crucial in adapting it to
present-day conditions.371 As such, the Court also considered that the Belém
do Pará Convention should ‘permeate the evolutionary interpretation of the
behaviors and acts of violence against women that can be framed as torture,
[and] that acts of violence against women perpetrated by women cannot be
excluded private individuals.’372 Accordingly, the Court held that Venezuela
violated the prohibition of torture for the sexual violence committed against
the applicant by omission.373
366 Ibid., para. 184.
367 Ibid., para. 189.
368 Ibid., para. 190.
369 Ibid., para. 191.
370 Ibid., para. 194.
371 Ibid., para. 193.
372 Ibid., para. 197.
373 Ibid., para. 199.
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Femicide and the Inter-American human rights system
The IACtHR considered the physical and sexual abuses, committed over the
course of almost four months, to satisfy the intentionality requirement.374 In
addition, the Court reiterated that ‘severe suffering is inherent in rape,’ harm
which was aggravated by mutilations and threats in the case concerned.375
Contrasting its approach in Rosendo Cantú and Fernandez Ortega, and refin-
ing its earlier consideration that rape can ‘discriminate’ against women in
Espinoza Gonzáles, the IACtHR now considered the purpose of rape to have
been the intimidation and domination of Ms López Soto.376 By raping her,
the assailant ‘affirm[ed] a position of subordination of women, as well as his
power position and patriarchal dominion over the victim, which demonstrates
the discriminatory purpose.’377 The Court concluded that Ms López Soto had
been subjected to ‘physical, sexual and psychological torture’ contrary to
Article 5(2) ACHR.378
López Soto also provides the basis for analyzing state responsibility for
private acts in the Inter-American system.379 Venezuela had enacted a specific
law on ‘violence against women and the family’ but this legal framework
was deficient, since it only applied to violence in the family, and the States’
criminal law focused on women’s ‘moral’ behavior.380 The Court highlighted
that stereotypes enshrined in the law divide women into groups of those who
comply with societal norms and those who deviate from traditional moral and
family values. The discussion of Venezuela’s inadequate preventive measures,
i.e., the biased criminal law, signals that States must effectively criminalize
certain types of violence.
The authorities’ inaction and the resulting impunity for the perpetrator
was considered particularly outrageous as the police knew the perpetrator’s
identity, which would have required more expedient reaction by the state
authorities. The IACtHR noted that States should eradicate underlying causes
of VAWG as well.381 Based on expert witness Daniela Kravetz’s testimony, the
Court concluded that States should adopt a ‘range of measures which seek, in
addition to preventing specific acts of violence, to eradicate any future practice
of gender-based violence,’ pertinently reiterating the socio-cultural patterns
which perpetuate the subordination of women.382
374 Ibid., para. 187.
375 Ibid.
376 Ibid., para. 188.
377 Ibid.
378 Ibid.
379 Ibid., paras 127 and 129.
380 Ibid., paras 132 and 152.
381 Ibid., para. 134.
382 Ibid., para. 136.
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214 Conceptualizing femicide as a human rights violation
Applying the Osman test, the Court stated that, even though she was raped
and sexually enslaved by a private individual, Venezuela incurred respon-
sibility for its inaction because it ‘knew or ought to have known’ that Ms
López Soto’s right to integrity, liberty, dignity, autonomy, and private life
were at ‘real or immediate risk,’ and it failed to take reasonable measures to
mitigate that risk.383 Highlighting that Article 2 Belém do Pará Convention
lists abductions as a form of violence, the Court considered that through Ms
López Soto’s sister’s calls to the police, Venezuela was aware of the acts
against Ms López Soto and the name and phone number of the assailant––the
son of a public figure who was known to the authorities.384 Even so, the State
failed to take reasonable measures to prevent any further violations of her
rights.385 The police’s indolent reaction caused repercussions as the alerted
perpetrator became more brutal against Ms López Soto.386 The Court held that
Venezuela’s state responsibility was engaged on account of the authorities’
inadequate reaction in the face of Ms López Soto’s abduction and captivity.387
A few particularities of the state responsibility discussion merit closer
analysis. In López Soto, the IACtHR recognized that acts of femicide are
cumulative since women who are disappeared, are at risk of being raped and
killed, regardless of the context of violence against women. By comparison,
in the Veliz Franco, Velásquez Paiz, and Cotton Field Cases, the Court had
considered that the ‘real and immediate risk’ existed due to the context of vio-
lence against women together with individual abductions.388 To the extent that
ongoing risks for individual women were recognized, the López Soto approach
is laudable. However, the Court should additionally have established that the
structural context makes the risk collective, and that Venezuela’s responsi-
bility was attracted well before her abduction as it had failed to address that
context. Moreover, the Court seems to have intended to make the Osman test
more restrictive, remarking that the risk analysis needs to be supplemented by
the consideration whether the State created the risk situation.389
The next issue identified by the IACtHR was that Venezuela’s legal
framework enshrined gender stereotypes and was thus discriminatory against
women and girls.390 Since only detainees could be tortured under Venezuelan
law, the acts against Ms López Soto fell outside the scope of the Criminal
383 Ibid., paras 139–140, 154–155, 157 and 164. See also Kravetz (n 355).
384 Ibid., paras 155–157 and 167.
385 Ibid., para. 167.
386 Ibid., para. 168.
387 Ibid., para. 169.
388 See ibid., para. 145.
389 Ibid., para. 149.
390 Ibid., para. 227.
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215
Femicide and the Inter-American human rights system
Code. Additionally, Article 393 of the Criminal Code reduced the penalties
for rapes and sexual violence committed against prostitutes, thereby sending
the message that some women deserve less protection from violence than
others.391 As a result of this legislation, the authorities tended to frame women
and girls subjected to violence as prostitutes. In López Soto, the authorities
inquired whether Ms López Soto and her sister were escorts, which the Court
rightly pointed out to be irrelevant for the investigation.392 Ms López Soto
was re-victimized throughout the proceedings, being made to recount the
events shortly after she underwent a medical operation. Even though she had
requested to talk to and be examined by female doctors, psychologists, and
officials, she was interrogated in the presence of armed men and examined
exclusively by male doctors. The Court highlighted that she was retraumatized
by repetitive statements about her sexual slavery and torture.393 The IACtHR
held that Venezuela had failed to investigate acts of violence against Ms López
Soto contrary to Articles 8 and 25 ACHR as specified by Article 7(b) Belém
do Pará Convention.394
Women Victims of Sexual Torture in Atenco v. Mexico (2018)
In May 2006, around 50 female protestors and flower vendors were explicitly
targeted and mistreated, insulted, sexually harassed, and/or raped by police
officers in Atenco, Mexico.395 Female bystanders, such as students, journalists,
and health care workers were also arrested by the police.396 Throughout these
arrests, the police informed women and girl protestors that they were targeted
for being present at the protests.397 Police insults centered on two themes:
women were called ‘whores’ and they were told that they were attacked for
being in public, e.g., ‘because she was not in her house washing dishes.’398
Moreover, the police threatened the female detainees with worse treatment to
come—namely, abduction, rape and death.399 Once arrested, the women were
transferred to the state prison facility. On the way and upon arrival, the police
sexually assaulted women, sometimes in the presence of their male family
members who had also been arrested: they touched their breasts, introduced
391 See Expert Testimony Christine Chinkin. Ibid., paras 228–233.
392 Ibid., para. 232.
393 Ibid., para. 215.
394 Ibid., para. 258.
395 Ibid., Atenco v. Mexico (n 40) paras 76–77 and 79–81.
396 Ibid., paras 83–85.
397 Ibid.
398 Ibid., para. 83.
399 Ibid., paras 84–99.
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216 Conceptualizing femicide as a human rights violation
their fingers and objects into women’s mouths and vaginas, and made one
woman perform oral sex on two soldiers.400 Some women reported having
heard other women screaming as they were being raped.401 At the prison, they
were forced to line up and undress. In response to women’s requests to be
examined by gynecologists, state authorities mocked them.402 Although most
women were released in 2006 and 2008, the Mexican authorities consistently
denied and failed to investigate rape allegations.403 Mexico had failed to
respect and guarantee the rights to personal integrity and to privacy (Arts 5(1)
and 11 ACHR), and the right not to be subjected to torture (Art. 5(2) ACHR
in relation to Art. 1(1) ACHR). Moreover, the State had failed to investigate
violence against the plaintiffs, breaching Articles 1 and 6 IACPPT and Article
7 Belém do Pará Convention.404
The IACtHR considered that acts of sexual violence in a broad sense and
rape in particular, potentially rise to the level of torture, a laudable step in the
recognition of gender-based harm. First, the Court qualified acts of forced
nudity and various sexual assaults, including touching and pinching of gen-
itals and breasts, and the prison doctors’ mockery of the women, as sexual
violence.405 The Court then explained that sexual violence denies a person the
ability to make decisions about the most intimate aspects of their life and to
control their personal decisions and essential bodily functions.406 The Court’s
consistent case law, established in Castro-Castro, defines sexual violence
broadly as non-consensual sexual acts, not necessitating any penetration.407
Moreover, the Court found that the penetration of a victim’s mouth, anus,
or vagina with fingers, objects, or a state agent’s penis, constituted rape.408
Contrary to sexual violence, which is broader than a physical invasion of
someone’s body, according to Castro-Castro, rape requires ‘anal or vaginal
penetration.’409 The Court emphasized that any penetration by a perpetrator’s
body part, ‘however superficial,’ constitutes rape.410 Regrettably, in the same
vein, the Court once again considered the relationship of trust between the
victim in state custody and police officers to make rape particularly severe,
because, in such circumstances, ‘the agent abuses his power and takes advan-
400 Ibid.
401 Ibid., paras 87–90.
402 Ibid., paras 100–106.
403 Ibid., paras 74 and 114.
404 Ibid., para. 183.
405 Ibid., paras 181, 208 and 188–190.
406 Ibid., para. 179.
407 Ibid., para. 181; Castro-Castro v. Peru (n 18) para. 306.
408 Atenco v. Mexico (n 40) paras 181 and 189.
409 Ibid., para. 182.
410 Ibid., para. 182.
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217
Femicide and the Inter-American human rights system
tage of the vulnerability of the victim, which can cause severe psychological
consequences for the victims.’411
In Atenco, the Court established that the sexual violence and rape of the
11 female plaintiffs constituted torture.412 State agents had intentionally
committed sexual acts against women since they targeted many women in
the same way, issuing threats and insults.413 In addition, the Court held that
severe suffering is inherent in sexual violence and rape, even absent physical
injuries.414 Moreover, the Court emphasized the element of mental torture, and
noted that threats could cause ‘moral anguish of such a degree that it can be
considered psychological torture.’415 Attentive to the social consequences of
rape, the IACtHR clarified that the rapes and sexual violence were intended ‘to
frighten [the 11 women], intimidate them and prevent them from participating
in political life or express[ing] their disagreement in the public sphere.’416
Accordingly, sexual violence against female protestors served as a means of
social control to intimidate and silence women.417 The Court emphasized that
the torture was committed as part of a police operation, whereby women were
controlled by state agents and ‘in a situation of complete defenselessness;’418
national authorities had exploited the vulnerable condition of the victims.419
The IACtHR also considered that the sexual violence pursued the aim of
intimidation of other protestors who witnessed what happened to women who
opposed authority in a society where women are supposed to be subservient.420
Mexican officials had used sexual violence as ‘another weapon in the repres-
sion of protests, as if, together with tear gas and anti-riot equipment, it would
just be another tactic to achieve the purpose of dispersing the protest and
making sure that the state authority was not questioned.’421 Of direct relevance
to femicide is the IACtHR’s clarification that rape is used to punish women
and girls for transgression of social norms.422
The Court also considered that the physical and verbal violence against
women was gender-based.423 Security forces had used sexual violence against
411 Ibid., paras 183 and 196.
412 Ibid., para. 193.
413 Ibid., paras 191 and 195.
414 Ibid., para. 196.
415 Ibid., para. 192.
416 Ibid., para. 198.
417 Ibid., para. 216.
418 Ibid., para. 199.
419 Ibid.
420 Ibid., para. 203.
421 Ibid., para. 204.
422 Atenco v. Mexico (n 40); see also Kravetz (n 355).
423 Ibid., paras. 211 and 220.
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218 Conceptualizing femicide as a human rights violation
women because they were women, while the violence against men was limited
to ‘excessive use of force.’424 Women and girls were targeted because they
had participated in a public demonstration against the state authority.425 The
Court found that the police used sexual abuse to punish the women for being
in public, and participating in political life.426 The abuse included stereotyping
statements such as: ‘prostitute, you like being raped,’ ‘she should [be] in her
house cooking instead of being here, and she did not think [about] [her] family
or [her] children,’ and ‘women only serve to make tortillas.’427 Considering
that stereotypes voiced and acted on by state authorities prevent women from
exercising their civil and political rights, the Court asserted that States must
take ‘positive measures to combat stereotypical and discriminatory attitudes
[of authorities].’428 The IACtHR held that it is not enough for the State simply
to sanction the police officers who stereotype women. The Court insists on
a requirement for States to ‘implement programs, policies or mechanisms to
actively fight against these prejudices and guarantee women real equality.’429
The IACtHR was particularly concerned about high-level officials’ public
reactions when women and girls went public with the sexual violence suffered
in the course of the Atenco protests:
[It] is absolutely unacceptable that the first public reaction of the highest authorities
concerned has been to question the credibility of the accusers of sexual violence,
accuse them and stigmatize them as guerrillas, as well as denying what happened
when it had not even started an investigation.430
The Court concluded that the physical and mental harm based on stereotyping
inflicted on women amounted to discrimination.431
The IACtHR considered that the plaintiffs’ right to judicial protection and
fair trial had been violated.432 At stake was the lack of medical and gyneco-
logical examinations and refusal to hear women’s testimonies.433 By failing
to record their statements and provide medical and psychological support, the
authorities revictimized the women.434 The investigations into ‘previous sexual
424 Ibid., para. 211.
425 Ibid., paras. 211-213.
426 Ibid., paras. 216-217.
427 Ibid., para. 214.
428 Ibid., para. 218.
429 Ibid., para. 218.
430 Ibid., para. 219.
431 Ibid., para. 214.
432 Ibid., para. 270.
433 Ibid., para. 310.
434 Ibid., para. 272.
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Femicide and the Inter-American human rights system
or social conduct’ reflected a gender stereotyping policy.435 The credibility
of the women was further minimized by state officials who labelled them as
‘radicals’ or ‘insurgents,’ and doctors who called them ‘dirty.’436 The Court
concluded that ‘statements of this type […] create a climate adverse to the
effective investigation of the facts and foster impunity.’437 As further discussed
in Chapter 10, state authorities contribute to the risk situation when they pub-
licly endorse VAWG.
CONCLUDING REMARKS
The IACtHR has displayed sensitivity to femicide. Feminist human rights
critique by renowned scholars—Chinkin, Cook, Creshnaw, Lagarde, and
MacKinnon and others—is implemented in its case law, such as the framing
of rape as torture, intersectional harm, and gender stereotyping. The Court
also takes a promising approach to adjudicate femicide cases. The IACtHR
frequently classifies gender-based violence under Article 1 Belém do Pará
Convention and sometimes under Article 1 CEDAW. The Court appears less
concerned with CEDAW than other regional human rights bodies, especially
in relation to rape constituting torture. Furthermore, the explicit framing of
rape as torture, regardless of who has committed the act, is unique to the
Inter-American system.
Three issues were tackled by the IACtHR: the definition of rape, the con-
nection between rape and torture, and the silent but always-lurking question of
whether the State must commit or be present in acts of torture. As to the defi-
nition of rape, the Court relied on the ICTY’s Furundžija case, which defines
rape rather mechanically. The definition functions well to encompass acts such
as forced fellatio as in Atenco.438 However, the Akayesu definition is broader
and thus better suited to cover unusual and cruel ways in which women and
girls are raped, such as penetration into wounds as sometimes occurs in femi-
cide.439 Once a woman is abducted, as was the case for Ms López Soto, she
is held in captivity, which renders any sexual intercourse rape regardless of
435 Ibid., para. 317.
436 Ibid., para. 314.
437 Ibid., paras 312 and 315.
438 Atenco v. Mexico (n 40) para. 182, referring to Castro-Castro, para. 310.
439 International Criminal Tribunal for Rwanda (ICTR), Prosecutor v. Akayesu
(Judgment) ICTR-96-4-T (2 September 1998), paras 598 and 688; Daniel Hernández
Guzmán, ‘Más Allá de los Feminicidios: Violencia y Cuerpo Femenino en “La parte de
los Crímenes” de Roberto Bolaño’ (2016) 20(40) Cuadernos de Literatura 633–647 at
637–638.
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220 Conceptualizing femicide as a human rights violation
any apparent consent.440 Coercive contexts relevant to femicide are also those
where women are deprived of their liberty, e.g., in forced marriages or domes-
tic violence, where they live in fear of violent acts.
To determine whether rape is torture, the IACtHR applies a three-prong test.
The intentionality and severity of the rape are usually uncontested. The central
question which has given rise to different responses in the Court’s case law
is the purpose rape pursues. At the outset, in Fernandez Ortega and Rosendo
Cantú, the Court considered that rape punished women and girls for failing to
disclose information. In Espinoza Gonzáles, in the context of widespread rapes
and sexual violence in armed conflict, the purpose of rape was to discriminate
against Ms Espinoza Gonzáles as a woman.441 In López Soto, the IACtHR
recognized that rape discriminated, intimidated, and dominated Ms López
Soto.442 Going one step further in Atenco, the Court persuasively explained
that, in addition to humiliating the 11 women, the rapes had a function of
societal control and punishment for their presence in the public sphere contrary
to societal expectations.443 At the same time, the IACtHR, like the ECtHR,
considers that rape committed by state actors is particularly severe because of
the trust relationship between private citizen and state official being exploited
and destroyed. However, the trust that a domestic violence victim puts in her
own partner, or male relative and supposed friend, should equally exacerbate
the harm to women and girls.
Three aspects inform the femicide concept and cement the previous findings.
Even when committed by non-state actors, rape is conceived of as torture in
femicide. This attention to sexual violence and rape as key aspects of femicide
is warranted given that such violence characterizes many acts of femicide, and
they can serve as the required severity threshold in femicide.444 The IACtHR
has set standards to combat the impunity with which crimes against women
and girls are treated. The Court considers that state responsibility arises when
States fail to investigate crimes with a gender perspective, i.e., to determine
whether sexual violence or extreme cruelty was involved in women and girls’
torture and/or murders in both state and non-state actor violence. The IACtHR
440 Prosecutor v. Kunarac et al. (Appeals Judgment) ICTY-96-23 and 23/1 (12 June
2002), para. 132.
441 Espinoza Gonzáles v. Peru (n 29) para. 229.
442 López Soto v. Venezuela (n 12) para. 188.
443 Atenco v. Mexico (n 40) paras 182–185.
444 See Miller, who criticizes the overt attention on rape and sexual violence.
Alice Miller, ‘Sexuality, Violence against Women, and Human Rights: Women Make
Demands and Ladies Get Protection’ (2004) 7(2) Health and Human Rights 17–47 at
19.
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Femicide and the Inter-American human rights system
is adamant that state authorities must not stereotype women, as such acts dis-
criminate women in their right to equal access to justice.
The Court also sheds light on how States have contributed to dangerous
situations for women and girls. States commit crimes against women and
girls, e.g., in cases relating to detention, i.e., Castro-Castro and Espinoza
Gonzáles, and to rapes and sexual violence massacres commissioned by the
military in Dos Erres and Plan de Sánchez. This military or government policy
of sexual violence at a time of civil war and unrest may also have translated
into the widespread femicide in peacetime Guatemala, as seen in Veliz Franco
and Velásquez Paiz. As crimes against women in femicide often originate in
a state-sponsored context, States’ role in creating the context, and subsequently
condoning it, should influence the determination of state responsibility.
The IACtHR adopted the Osman test in Pueblo Bello v. Colombia.445
Accordingly, state responsibility is engaged when the State ‘knew or ought to
have known’ of a ‘real or immediate risk’ to the rights of the person, and con-
sequently failed to take reasonable measures to prevent that risk.446 The Court
applies the Osman test to what it calls two different time frames in femicide
cases. The first one is before a woman or girl has disappeared, and the second
one relates to the time between her disappearance and her body being found.
Since femicide is a widespread human rights violation, I am primarily con-
cerned with the first time frame, in other words, the structural situation of risk
to the female social group. To hold States responsible for failing to act in the
face of widespread human rights violations against women and girls, the Court
should shift to focusing on group-related risks. The IACtHR can build on the
Cotton Field, Veliz Franco, and Velásquez Paiz cases, where the Court iden-
tified the female social group at risk. Since the Court further held that States
knew of risks to the female social group, and even determined that Guatemala
had not complied with its duty to take preventive measures in Velásquez Paiz,
the task remaining is to hold States responsible for systemic violence against
women and girls, similar to its case law on patterns of enforced disappearances
which the Court regularly considers to engage state responsibility. The African
human rights system, discussed in the next chapter, has already achieved the
recognition of structural risks under Osman to some extent.
445 Pueblo Bello v. Colombia, Preliminary Objections, Merits, Reparations, and
Costs, Inter-American Court of Human Rights Serie C No 140 (31 January 2006).
446 Ibid., paras 283–284.
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222
8. Femicide and the African human
rights system
I was captured and taken to the forest. Boko Haram fighters told us that if we did
not follow their beliefs, they would execute us. But if we believed in their ways
and married them, we could live [.] Ultimately, all of us (all six who were abducted
together) ‘married’ them. But it was torture living in the forest. They kept us locked
up in huts or tents and we had little food. […] I was there for two years when the mili-
tary rescued us. At that time, I was pregnant.
Falmata I.1
INTRODUCTION
The African human rights framework relevant to femicide, consisting of the
African Charter on Human and Peoples’ Rights (African Charter) and the
Additional Protocol to the African Charter on Human and Peoples’ Rights
(Maputo Protocol), has addressed women’s rights violations with limited
success: female genital mutilation (FGM), early or forced marriage, forced
labor, and discriminatory inheritance laws––all of which constitute acts of
femicide once the severity threshold (torture or death) is met––remain preva-
lent across Africa.2 These deficiencies in the pan-African response to femicide
should be viewed in comparison to the context of widespread and prevalent
violence against women and girls (VAWG) in Europe.
The recognition of femicide in the continental African human rights
system is limited by challenges in accessing the relevant fora. The African
Commission on Human and People’s Rights (African Commission) and the
African Court on Human and Peoples’ Rights (African Court) oversee the
implementation of human rights in continental Africa.3 Established in 1987,
1 Testimony of Falmata I. in Global Coalition to protect Education from Attack,
‘I Will Never Go Back to School’ (October 2018), 34, www .protectingeducation .org/
sites/ default/ files/ documents/ attacks _on _nigerian _women _and _girls .pdf. All online
sources were accessed 30 October 2021.
2 Ashwanee Budoo, ‘Analysing the Monitoring Mechanisms of the African
Women’s Protocol at the Level of the African Union’ (2018) 18 African Human Rights
Law Journal 58–74.
3 The sub-regional Economic Community of West African States (ECOWAS)
Community Court for Justice also has jurisdiction over human rights violations arising
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Femicide and the African human rights system
the African Commission functions as the primary supervisor of human rights
violations in Africa.4 It consists of 11 experts, one of whom also serves as the
Special Rapporteur on the Rights of Women in Africa, a focal point in promot-
ing respect for women in Africa.5 The Commission can assess States’ periodic
reports on their progress in implementing the African Charter, produce resolu-
tions and reports on grave human rights abuses, issue General Comments and
provide quasi-judicial ‘recommendations’ concerning complaints about viola-
tions of the African Charter and the Maputo Protocol.6 The Commission can
deal with communications filed by NGOs in addition to receiving individual
complaints (‘communications’).7 The African Commission has compulsory
jurisdiction over States which are members of the African Charter. As of
2021, the African Commission has dealt with two cases on VAWG: Egyptian
Initiative for Personal Rights and Interrights v. Egypt and Equality Now and
Ethiopian Women Lawyers’ Association v. Federal Republic of Ethiopia.8
Considering the scant case law relevant to femicide, it is currently impossi-
ble to draw general conclusions on the African Commission’s approach to
femicide.
Complementing the African Commission’s mandate, the African Court
was established in 2006. Like the Commission, the Court has relatively broad
jurisdiction over issues concerning VAWG.9 Based on Article 7 of its Protocol,
the African Court can hear complaints on the basis of the African Charter as
well as the Maputo Protocol, which is of direct relevance to women’s rights,
potentially making the Court a strong forum for future femicide cases.10
However, access to the Court is restricted. Under Article 34(6) African Court
from the African Charter and has been more successful in addressing VAWG. See
ECOWAS Community Court for Justice, ‘Mandate and Jurisdiction,’ http:// www
.courtecowas .org/ mandate -and -jurisdiction -2/ .
4 Art. 30 African Charter on Human and People’s Rights (African Charter)
(adopted 27 June 1981, entered into force 21 October 1986).
5 Budoo (n 2) 58–74.
6 Arts 45 and 62 African Charter.
7 Arts 48, 49 and 55 African Charter.
8 African Commission on Human and People’s Rights (African Commission),
Egyptian Initiative for Personal Rights and Interrights v. Egypt, Communication No
323/06, 1 March 2011; African Commission, Equality Now and Ethiopian Women
Lawyers Association v. Federal Republic of Ethiopia, Communication No. 341/2007,
25 February 2016. Another case, Echaria v. Kenya, was declared inadmissible, because
the applicants failed to approach the Commission in time. African Commission, Njeri
Echaria v. Kenya, Communication No 375/09, 5 November 2011, para. 61.
9 Art. 1 Protocol to the African Charter on Human and Peoples’ Rights on the
Establishment of an African Court on Human and Peoples’ Rights (adopted 19 June
1988, entered into force 25 January 2004).
10 Art. 7 African Court Protocol.
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224 Conceptualizing femicide as a human rights violation
Protocol, States which ratify the Court’s Protocol, must declare intent to
be bound by the Court. As of 2021, only eight States have declared intent,
which further limits the Court’s case law.11 Moreover, NGOs must apply for
observer status in the African Union (AU) to be able to file communications.12
Given these hurdles, the Court has not decided any cases relevant to femicide,
although early marriage and inheritance by women were discussed in APDF
& IHRDA v. Republic of Mali.13 Since the Court is not yet fully functional, the
African Commission has issued a substantial and growing body of case law on
violations of the African Charter. In Equality Now and Egyptian Initiative for
Personal Rights, the African Commission recognizes discrimination against
women and girls but fixates on a formal equality approach, comparing similarly
situated individuals with each other, potentially a setback in the recognition of
gender-based violence in the African region.14 A formal equality approach
neglects structural problems which lead to widespread violence against the
female social group in addition to the issue that no comparable male exists in
some circumstances, such as in cases of forced marriage or FGM.
An asymmetric approach to discrimination, such as the one espoused in
Article 1 of the Convention on the Elimination of Discrimination Against
Women (CEDAW), would be better suited to address gender-based violence.15
This would further expose the discriminatory context fueling such violence,
which is crucial in eliminating its root causes in turn. In Equality Now, the
African Commission proffered a potential avenue for state responsibility in
the context of widespread violence against women, regardless of an individual
risk.16 The Commission’s approach is an important basis for more stringent
state responsibility in the face of systemic VAWG.
11 Art. 34(6) African Court Protocol; African Court on Human and Peoples’
Rights. Burkina Faso, The Gambia, Ghana, Malawi, Mali, Niger, Tunisia and Guinea
Bissau have made a declaration. African Court on Human and Peoples’ Rights,
‘Declarations’, https:// www .african -court .org/ wpafc/ declarations/ ; African Court on
Human and Peoples’ Rights, ‘Press Release’ (3 November 2021), https:// www
.african -court .org/ wpafc/ the -republic -of -guinea -bissau -becomes -the -eighth -country -to
-deposit -a -declaration -under -article -346 -of -the -protocol -establishing -the -court/ .
12 Budoo (n 2) 361; Resolution on the Criteria for Granting and Maintaining
Observer Status to Non-Governmental Organizations working on Human and Peoples’
Rights in Africa, ACHPR/Res.361(LIX) 2016, www .achpr .org/ sessions/ resolutions ?id
= 373.
13 African Court, Association pour le progrès et la défense des droits des femmes
Maliennes (APDF) and the Institute for Human Rights and Development in Africa
(IHRDA) v. Republic of Mali, Communication No 46/2016 11, May 2018.
14 Equality Now v. Ethiopia (n 8) para. 149.
15 Interrights v. Egypt (n 8) para. 122; Equality Now v. Ethiopia (n 8) para. 144.
16 Equality Now v. Ethiopia (n 8) paras 127–131.
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Femicide and the African human rights system
THE AFRICAN CHARTER ON HUMAN AND PEOPLES’
RIGHTS
The African Charter on Human and People’s Rights (African Charter) contains
rights and freedoms specific to the African region, which can be seen in its
focus on entire peoples and the protection of traditional and cultural values.
The African Charter uniquely protects entire groups, stating that ‘[a]ll peoples
shall have the right to existence […] [c]olonized or oppressed peoples shall
have the right to free themselves from the bonds of domination by resorting to
any means recognized by the international community.’17 This focus on groups
and oppression is useful to highlight the distinctive subordination faced by
female social groups, embedded in socio-economic and cultural structures in
femicide. Another issue arises in the juxtaposition of traditional, cultural, and
family values and the equal protection of all people(s).18 The focus on cultural
and traditional rights is a legitimate response to centuries of colonialism of the
African region, and references to culture and traditions are omnipresent in the
African Charter. Its Preamble emphasizes the ‘historical tradition and the value
of African civilization which should inspire and characterize their reflection
on the concept of human and peoples’ rights;’ Article 17(3) notes that States
must ensure ‘morals and traditional values recognized by the community;’
Article 18(3) stipulates that ‘States have the duty to assist the family which is
the custodian of morals and traditional values recognized by the community.’19
Cultural practices uniquely influence the scope of human rights in the African
Charter.
At the same time, the African Charter safeguards traditions and practices,
without recognizing that some of these cultural practices are harmful and
excessively restrict women’s rights. Harmful traditional practices (as opposed
to non-harmful ones) reinforce the family unit as one where potentially
harmful moral values are imposed on women and girls. In addition, the
prevalent cultural practices of early and forced marriage are widespread in
some parts of Africa. While some practices have deep cultural significance,
they are also discriminatory and/or constitute VAWG.20 For example, that a
17 Art. 20 African Charter [emphasis added].
18 Susan Deller Ross, Women’s Human Rights: The International and Comparative
Law Casebook (University of Pennsylvania Press 2013) 168–170.
19 See ibid.
20 Nicholas Wasonga Orago and Maria Nassali, ‘The African Human Rights
System: Challenges and Potential in Addressing Violence Against Women in Africa’ in
Jackie Jones and Rashida Manjoo (eds), The Legal Protection of Women from Violence
(Routledge 2018) 107–108. On cultural relativism, see Bonita Meyersfeld, Domestic
Violence and International Law (Hart Publishing 2011) 103–104.
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226 Conceptualizing femicide as a human rights violation
12-year-old girl is sold to a local Chief in line with the custom of ‘wahiya,’
whereby the girl serves as a domestic worker and a concubine, is a negative
cultural practice constituting sexual slavery, rather than a culturally justifiable
one. These harmful practices and domestic judges’ roles in condoning them,
engage state responsibility.21 Of course, some cultural practices, such as ‘ukhu-
wala,’ a staged form of abduction for a couple to obtain parental agreement or
overcome an inability to pay for the dowry, were not negative in their original
iterations, a woman’s consent being indispensable to the marriage.22 At the
same time, we should not forget women’s progressive roles as chiefs and
leaders in matriarchal African systems, another culturally established practice
awarding power to women in society.23
The African Charter does not explicitly address VAWG and violent cultural
practices. However, Articles 2 and 18(3) African Charter establish the prin-
ciple that the rights set forth in the African Charter must be enjoyed without
distinction on the grounds of sex.24 However, two immediate concerns spring
from the phrasing of these Articles. Article 18(3) is a sub-section of the right
to protection of the family unit. On the one hand, the African Charter attempts
to award women protection from discrimination within the family unit. On
the other hand, the African Charter awards the family unit protection from
interference, thus shielding it and granting it immunity from state intervention,
while this unit is exactly where most violence against women is committed.25
A second concern is that the African Charter, in speaking of ‘women and chil-
dren’ in the same breath, implicitly places women at the same level as children.
This comparison diminishes women’s agency, as children have limited legal
capacity, and reflects a patronizing attitude.26 Finally, the non-discrimination
provision’s connection to the family unit ‘which is the custodian of morals
and traditional values recognized by the community,’ conveys the message
that women are protected insofar as they comply with moral and traditional
values, and that these values supersede the protection of women from discrim-
21 See ECOWAS Community Court for Justice, Hadijatou Mani Koraou v. Niger,
ECW/CCJ/APP/0808 (17 October 2008).
22 See Western Cape High Court, Jezile v S and Others (A 127/2014) [2015]
ZAWCHC 31; 2015 (2) SACR 452 (WCC); 2016 (2) SA 62 (WCC); [2015] 3 All SA
201 (WCC) (23 March 2015), paras 73–74.
23 Josephine Jarpa Dawuni, ‘Matri-Legal Feminism: An African Feminist Response
to International Law’ in Susan Harris Rimmer and Kate Ogg (eds), Research Handbook
on Feminist Engagement in International Law (Edward Elgar 2019) 454 and 459.
24 Arts 2 and 18(3) African Charter.
25 See Frans Viljoen, ‘An Introduction to the Protocol to the African Charter on
Human and Peoples’ Rights on the Rights of Women in Africa’ (2009) 16 Washington
and Lee Journal of Civil Rights and Social Justice 12–46.
26 See Meyersfeld (n 20) 89.
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Femicide and the African human rights system
ination.27 Accordingly, while the African Charter enshrines the principle of
non-discrimination, its effectiveness is limited when it comes to the protection
of women and girls from violence.
THE MAPUTO PROTOCOL
The African Charter’s normative deficiencies in dealing with women’s rights
are largely corrected by the Maputo Protocol, a comprehensive instrument in
protecting women and girls from discrimination.28 The African women’s rights
movement mobilized and lobbied for the Maputo Protocol, which was even-
tually adopted in 2005.29 The Protocol is currently ratified by 42 AU Member
States and signed by 49 States. Out of the 55 AU Member States, most States
are thus either bound by the Maputo Protocol or have expressed their interest
in ratifying it.30 The African Commission and the African Court can both hear
complaints about violations of the Maputo Protocol.31 This should make the
latter an especially important tool to assert women and girls’ right to be free
from violence. However, the Commission has a broad mandate, and it has not
prioritized the implementation of the Maputo Protocol.32
The Maputo Protocol has been touted as a success story for reconciling civil,
political, economic, social, and cultural rights.33 Going further than the African
Charter, it recognizes social rights which are not included in the African
Charter alongside quests for women’s political participation, thereby recogniz-
ing human rights as indivisible and interdependent.34 Two General Comments
specify the rights in the Maputo Protocol, one on reproductive rights and
another on HIV.35 The Protocol exceeds the scope of the Belém do Pará and
27 See ibid.
28 Jing Geng, ‘The Maputo Protocol and the Reconciliation of Gender and Culture
in Africa’ in Harris Rimmer and Ogg (n 23) 412.
29 Viljoen (n 25) 12.
30 See African Union (AU), ‘Status List of the Protocol to the African Charter on
Human and People’s Rights on the Rights of Women in Africa,’ https:// web .archive
.org/ web/ 20070606221500/ http:// www .africa -union .org/ root/ au/ Documents/ Treaties/
List/ Protocol %20on %20the %20Rights %20of %20Women .pdf. Additional Protocol to
African Charter on Human and Peoples’ Rights (Maputo Protocol) (adopted 27 June
1981, entered into force 21 October 1986) (1982) 21 ILM 58.
31 Arts 27 and 32 Maputo Protocol.
32 Budoo (n 2) 58–74.
33 Viljoen (n 25) 20.
34 Ibid.
35 General Comment No 2 on Articles 14(1)(a–c) and (f) and 14(2)(a) and (c) of the
Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women
in Africa, https:// www .achpr .org/ legalinstruments/ detail ?id = 13.
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228 Conceptualizing femicide as a human rights violation
the Istanbul Conventions in some respects, and is crucial for my understanding
of the socio-economic connotations of femicide.
The Maputo Protocol stipulates several provisions relating to harmful cul-
tural practices against women prevalent in the African region. Under Article
5, States must eliminate all forms of FGM through legislative and policy
measures and awareness-raising campaigns. The Protocol also specifically
prohibits early or forced marriage, sets the minimum age of marriage at 18,
and lists monogamy as the ‘preferred form of marriage.’36 A list of sexual and
reproductive rights includes women’s control over their reproductive capacity
and women’s right to choose contraceptive methods. Furthermore, it author-
izes abortion under some circumstances: in cases of rape, and/or incest, and
‘where the continued pregnancy endangers the mental and physical health of
the mother or the foetus.’37
The Maputo Protocol contains no reference to femicide. VAWG is defined
broadly as:
all acts perpetrated against women which cause or could cause them physical,
sexual, psychological, and economic harm, including the threat to take such acts; or
to undertake the imposition of arbitrary restrictions on or deprivation of fundamen-
tal freedoms in private or public life in peacetime and during situations of armed
conflicts or of war.38
Under the rights to life, integrity and security of persons, the Maputo Protocol
requires States to take measures to prohibit all forms of violence (‘including
unwanted or forced sex’), to identify causes and consequences of violence
against women, and to tackle stereotypes which perpetuate such violence.39
The Protocol suggests that marital rape is prohibited as it ensures that the right
to be free from violence extends to the private as well as the public sphere.40
Overall, the Maputo Protocol is a response to prevalent so-called cultural
harm to women and girls across Africa.41 Its added value to the general dis-
crimination provision in the African Charter is two-fold. First, it expresses
moral condemnation of certain types of violent acts against women, such
as forced marriage by abduction, which are still regarded as legitimate and
36 Art. 6 Maputo Protocol.
37 The Maputo Protocol authorizes medical abortions in Art. 14(2)(c) Manjoo
Report 2015, para. 17.
38 Art. 1(j) Maputo Protocol.
39 Art. 4 Maputo Protocol.
40 Arts 1 and 4(2)(a) Maputo Protocol. Fareda Banda, ‘Building on a Global
Movement: Violence Against Women in the African Context’ (2008) 8(1) African
Human Rights Journal 1–22 at 13.
41 Orago and Nassali (n 20) 112.
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Femicide and the African human rights system
traditional in some regions.42 Second, it looks at harmful practices through the
lens of violence rather than discrimination, thereby specifying and unmasking
the harm at stake.43 Some violence against women has been legitimized in
the name of cultural relativism, FGM being a case in point, thereby decrying
attempts to abolish the practice as western and un-African.44 However, the
Maputo Protocol is an African response to VAWG, delegitimizing harmful
cultural practices, including FGM and forced marriage.45 Nevertheless, chal-
lenges to its implementation exist. Customary laws—e.g., forgiveness cer-
emonies or compensation for rape, civil wars, lack of domestic legal norms
on violence against women, financial constraints, and lack of awareness that
violence against women is prohibited—present obstacles to women’s right
to be free from violence.46 Of equal importance is the progressive domestic
implementation of the Maputo Protocol to uphold a criminalization of FGM
due to its negative effects on women’s health and their right to life.47 More
efforts must still be made towards ratifying and implementing the Maputo
Protocol across the region.48
POLITICAL VIOLENCE AND FORCED MARRIAGE
The violence in femicide functions in myriad ways to prevent women and girls
from fulfilling their aspirations and having their rights respected. This can be
seen in the African context in the two examples of cases decided by the African
Commission. A young girl who is abducted and married against her will, can
no longer attend school, which violates her right to access to education and
contributes to the cycle of poverty.49 Sexual harassment may have a chilling
effect on women and girls’ efforts to attend political protests and act in dem-
42 See e.g., Equality Now v. Ethiopia (n 8).
43 See Viljoen (n 25) 21.
44 See Meyersfeld’s discussion on cultural relativism. Meyersfeld (n 20) 103–104;
Deller Ross (n 18) 460.
45 Geng (n 28) 413.
46 Orago and Nassali (n 20) 131-132.
47 E.g., in March 2021, Kenya Constitutional Court considered that, based on the
Maputo Protocol, the criminalization of female genital mutilation (FGM) was justified
and even needed to be strengthened, in direct opposition to the view presented by the
doctor in the case, who argued such criminalization discriminated against women and
girls who had consented to the procedure. Kenya Constitutional Court, Tatu Kamau
v. Attorney General & two others; Equality Now & nine others (Interested Parties);
Katiba Institute & another (Amicus Curiae) [2021] eKLR (17 March 2021).
48 See Budoo (n 2).
49 See Western Cape High Court, Jezile v. S and Others (A 127/2014) [2015]
ZAWCHC 31; 2015 (2) SACR 452 (WCC); 2016 (2) SA 62 (WCC); [2015] 3 All SA
201 (WCC) (23 March 2015), paras. 73-74.
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230 Conceptualizing femicide as a human rights violation
ocratic processes. While these acts of femicide are inherently intersectional,
affecting female protestors of Muslim faith and poor black schoolgirls in
various ways, they inevitably take away women and girls’ power in making
decisions about their lives, and place them in a paralyzed societal position,
where their agency is oppressed.
Egyptian Initiative for Personal Rights and Interrights v. Egypt (2013)
The African Commission’s Egyptian Initiative for Personal Rights and
Interrights v. Egypt was set in the context of the Arab Spring.50 During pro-
tests, supporters of the Mubarak regime and Egypt’s National Democratic
Party (NDP) surrounded four female journalists—either covering the demon-
strations, or inadvertently present—and attacked them in the presence of police
officers. The police and bystanders pushed the women to the floor, kicked and
fondled them in their pubic areas and breasts. The attacks were accompanied
by insults and slurs, such as whore and slut, from demonstrators and the police.
A police officer told one of the women: ‘I’ll show you not to go down to the
streets again,’ while other police officers held her from the back and tried to
tear off her clothes.51 Medical reports confirmed bruises and other injuries on
their bodies, yet all women were pressured by state authorities or their family
members to withdraw their complaints, and even to quit their jobs and cease
political participation. Investigators refused to record eyewitness testimonies,
and the initial investigation was halted as the authorities could not identify the
perpetrators.52
The African Commission found that Egypt had condoned sexual harassment
and thereby failed to protect women and girls from violence. The Commission
primarily applied a formal equality approach and asked (1) whether female and
male protesters were similarly treated in the same situation; (2) whether such
treatment was fair and just in a context where men and women exercised their
political rights.53 As to the first issue, the Commission noted that the treatment
against the female protesters had been different based on their gender for three
reasons. Firstly, the insults used against the women, ‘slut’ and ‘whore,’ are
unlikely to be used to insult men and were meant to degrade and attack the
integrity of women ‘who refuse to abide by traditional, religious, and even
social norms.’54 Secondly, the type of violence committed against the women
differed from violence typically committed against men, as the sexual harass-
50 Interrights v. Egypt (n 8) paras 4–10.
51 Ibid., para. 132.
52 Ibid., para. 226.
53 Ibid., paras 121–123.
54 Ibid., para. 143.
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Femicide and the African human rights system
ment, consisting of the touching or attempts to touch breasts and sexual organs,
was specific to attacks against women and girls.55 The Commission’s approach
was context-sensitive considering that such violence had a more severe impact
in Arab Muslim societies as women’s honor was violated by their sexual expo-
sure in public, which caused the applicants’ additional harm. Thirdly, some
applicants were accused of being prostitutes when they refused to withdraw
their complaints, another aspect of discrimination.56 Overall, the Commission
found that ‘the treatment was neither legitimate nor justifiable because there
is no reasonable cause behind the discrimination inflicted upon the victims.’57
The Commission found that the sexual harassment, the slurs ‘sluts’ and
‘whores,’ and touching of the female journalists and protestors amounted to
degrading treatment, concluding that such treatments ‘not only cause serious
physical or psychological suffering but also humiliate the individual’ and
‘can be interpreted to extend to the widest possible protection against abuses,
whether physical or mental.’58 Ultimately, the Commission recognized that
such violence caused ‘physical and emotional trauma,’ but for femicide, the
question arises whether such sexual harassment in context of mass protests
constitutes torture.59
The Commission also found that Egypt had failed to prevent violence
against female protestors and journalists. Citing Article 4(c) Declaration on
the Elimination of Violence Against Women (DEVAW), the Commission
summarily concluded that Egypt had failed to investigate the acts with due
diligence, without further specifying the States’ positive obligations.60 In this
case, high-ranking police officials had simply condoned the acts committed in
their presence by private individuals, and had joined in with the sexual harass-
ment of women at some point.61 The Commission noted that it was insufficient
for States simply to instate measures to prevent violence against women, as
Egypt claimed to have done. Such measures needed to be effective and lead
to ‘palpable’ results.62 The State had failed to investigate sexual harassment,
thereby failing to fulfil its positive obligations to prevent VAWG committed
by private individuals as well as state agents.63
55 Ibid., para. 144.
56 Ibid., para. 145.
57 Ibid., para. 149.
58 Ibid., paras 189 and 196.
59 See ibid., paras 201–202.
60 Ibid., para. 206.
61 Ibid., paras 6, 11 and 131–132.
62 Ibid., para. 178.
63 Ibid., para. 163.
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232 Conceptualizing femicide as a human rights violation
Equality Now and Ethiopian Women Lawyers Association v. Federal
Republic of Ethiopia (2015)
Waineshut Zebene Negash, a 13-year-old Ethiopian schoolgirl, was abducted
by five men, and taken to a house where one of the men raped her.64 Once
informed of her abduction, the local police swiftly rescued her. Medical reports
confirmed that Waineshut was bruised and had been raped. The perpetrator
was detained but then released on bail. He kidnapped Waineshut again, this
time holding her hostage for a whole month. He repeatedly raped her and
forced her to sign a marriage contract before she managed to escape. When the
perpetrator was first detained, fewer abductions by other perpetrators happened
in the region. After he was released, more women and girls were abducted.65
A local court sentenced the perpetrator and his accomplices to ten and eight
years’ imprisonment, respectively. Upon appeal, the High Court reversed that
decision as the perpetrator was in possession of a marriage contract and the
sexual intercourse must therefore have been consensual.66
The Commission found that Ethiopia had failed to protect Waineshut from
abduction and rape by a private individual. The Commission stated that forced
marriage is ‘one of the most repugnant traditional practices’ which violates
a woman’s right to liberty, security of person, and dignity.67 Ethiopia had
already criminalized rape and abduction, but it was still seen as normal prac-
tice to abduct and then rape a girl to make her one’s wife in the region where
Waineshut lived.68 The Commission considered that her rape violated her right
to human dignity and constituted degrading treatment.69 Although rape is not
listed in the African Charter, the Commission considered that rape is ‘one of
the most repugnant affronts to human dignity’ since the ‘personal volition of
the victim is gravely subverted and disregarded, and the victim is reduced from
being a human being who has innate worth, value, significance, and personal
volition, to a mere object by which the perpetrator can meet his or her sadistic
sexual urges.’70 The phrase ‘for his or her sadistic sexual urges’ illustrates the
Commission’s interpretation that rapists are ‘not normal’ and somehow deviate
from decent behavior. This contention that rape is an exception, and that the
perpetrator has some kind of perverted sexual fetish, could compromise the
understanding of the reality that these abuses are systemic and widespread
64 Equality Now v. Ethiopia (n 8).
65 Ibid., para. 129.
66 Ibid., para. 5.
67 Ibid., para. 107.
68 Ibid., para. 109.
69 Ibid., paras 88, 91 and 118–119; Art. 5 African Charter.
70 Ibid., para. 120.
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233
Femicide and the African human rights system
and often constitute torture.71 As the Commission noted, abductions coupled
with rape were widely practiced in the area where Waineshut was kidnapped.72
The African Commission also considered that she had been forced to sign
a marriage contract, which negated her autonomy.73 In light of the widespread
context of abductions, in femicide, even seemingly free consent to such a mar-
riage would not be possible.
The forced marriage by abduction was not gender-based in the eyes of the
Commission.74 Equality before the law under Articles 2 and 3(1) of the African
Charter was ‘the right by all to equal treatment under similar conditions,’
allowing the State to justify a distinction where just and objective grounds
exist.75 With the same formal equality approach as the European Court of
Human Rights (ECtHR), the Commission found that Waineshut did not present
prima facie evidence that she was treated differently than a comparable person
in a similar situation, rejecting her discrimination claim.76 The Commission
sought a non-existent male comparator. In doing so, it appears to have mis-
interpreted CEDAW and the Maputo Protocol’s similar substantive equality
approach.77 Indeed, the Commission explicitly referred to Article 1(f) of the
Maputo Protocol, which defines discrimination as ‘any distinction, exclusion
or restriction or any differential treatment based on sex and whose objectives
or effects compromise or destroy the recognition, enjoyment or the exercise
by women.’78 While the Commission noted that Article 1 CEDAW ‘uses the
same terms as the [Maputo] Protocol,’ the Commission did not acknowledge
that CEDAW’s asymmetric definition does not require a male comparator.79 In
comparing the provisions of the African Charter, Article 1 CEDAW, and the
Maputo Protocol, the Commission conflated formal and substantive equality.80
Forced marriage by abduction is a negative cultural practice predominantly
71 Duncan Kennedy, Sexy Dressing Etc., Essays on the Power and Politics of
Cultural Identity (Harvard University Press 1993) 138–139.
72 Equality Now v. Ethiopia (n 8) para. 126.
73 Ibid., para. 121.
74 Ibid., paras 141–143.
75 Ibid., para. 148.
76 Ibid., paras 148–149.
77 See similar approaches in Art. 1 of the Convention on the Elimination of
Discrimination Against Women (CEDAW) and Art. 1(f) Maputo Protocol.
78 Equality Now v. Ethiopia (n 8) para. 144.
79 Ibid. On the asymmetric approach of discrimination under CEDAW, see Rikki
Holmaat, ‘The CEDAW: A Holistic Approach to Women’s Equality and Freedom’ in
Anne Hellum and Henriette Sinding Aasen (eds), Women’s Human Rights: CEDAW in
International, Regional, and National Law (Cambridge University Press 2013) 99.
80 See Equality Now v. Ethiopia (n 8).
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234 Conceptualizing femicide as a human rights violation
targeting girls and a systemic issue, where no male comparator exists.81 As it
could not identify a male comparator, it failed to recognize forced marriage
by abduction as gender-based.82 The Commission erred in comparing Equality
Now with Interrights, as both men and women were present during demonstra-
tions on Tahrir Square in the latter case, and comparisons could be drawn.83
Since abduction for the purpose of rape (and forced marriage) mainly targets
women, Waineshut’s abduction would qualify as gender-based violence under
CEDAW.
The Commission stepped forward and engaged Ethiopia’s state responsi-
bility for condoning many instances of forced marriage, even in the absence
of an incident such as a reported abduction.84 The Commission amended
Osman to apply to groups in determining the circumstances triggering state
responsibility: (1) when the State is aware of a risk situation and (2) where a
‘specific individual or category of individuals face a real risk of their rights
and freedoms being seriously violated by non-state actors.’85 Progressively, the
African Commission has opened the door for engaging state responsibility for
femicide with its focus on the widespread risk situation.
The Commission stated that the State must have been aware of a pattern
of widespread forced marriage, which caused ‘the continuing threat of
being abducted, raped and forcibly married in the area where the practice
was rampant,’ and where Waineshut disappeared.86 Given its knowledge of
the widespread violence, the State should criminalize rape and abduction.
The Commission even called for ‘escalated measures,’ without postulating
the scope of these measures.87 This suggests that States must put to rights
a context of violence, regardless of an individual abduction triggering such an
obligation.88
The Commission examined the situation in the region, concluding that ‘the
Respondent State was at all times aware of the prevalence of the practice,
and more so when it was aware of the specific insecurity of Waineshut and
her friends following her first abduction.’ Accordingly, the State should have
been aware of the risk of further offences against Waineshut ‘and no less
81 See ibid., para. 149.
82 Ibid., paras 145–146. See also Maria Sjöholm, Gender-Sensitive Norm
Interpretation by Regional Human Rights Law Systems (Brill 2017) 339 and 672.
83 See Equality Now v. Ethiopia (n 8) paras 145–148.
84 Ibid., para. 122.
85 Ibid., para. 125.
86 Ibid., para. 126.
87 Ibid., paras 124–126.
88 Ibid., para. 126.
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235
Femicide and the African human rights system
other girls in like situations.’89 And yet, it failed to prevent forced marriage by
abduction.90 By failing to implement measures to protect her, the State failed
to foil the second abduction.91 In the African system, her previous abduction
constituted sufficient reason for the State to exercise due diligence. Following
the State’s inaction after Waineshut was kidnapped the second time, abduc-
tions in the region thrived. They had halted when the perpetrator was detained
after the first abduction: ‘[T]he Respondent State had not been prosecuting
perpetrators of abduction and rape. Had it been doing so, the ripple effect of
arrests and prosecution of perpetrators could have long operated as an effective
deterrent as it did when her abductor was arrested the first instance.’92 This
development is notable compared to the European and the Inter-American
approaches. The ECtHR strictly applies the Osman standard when violence is
reported to national authorities, while the IACtHR recognizes that some state
duties arise for widespread risks, even if it has not yet held a State responsible
for failing to address large-scale VAWG. The focus of the African system on
collective rights and its clear definition of the targeted group directly impacts
on the determination of state responsibility by omission for femicide.
Finally, the Commission suggested a range of possible preventive measures,
including informing the public about the issue and the criminal nature of
abduction for rape and forced marriage, increasing security measures at the
girl’s school, or conducting police patrol.93 The State should have identified
perpetrators, punished them accordingly, and provided potential remedies for
the victim.94
CONCLUDING REMARKS
Equality Now and Interrights involve acts of femicide specific to the African
region. Interrights brought to the fore the deterring effect sexual harassment
may have on women’s participation in democratic processes. Equality Now
shed light on the issue of forced marriage by abduction and implicated human
rights violations. These cases constituted a welcome development in the
Commission’s adjudication of cases of gender-based violence in the African
region. And yet, any optimism regarding the African human rights bodies’
approach to acts of femicide is tremulous. The Commission sees discrimina-
tion through a formal equality lens, requiring the applicant to adduce evidence
89 Ibid., para. 127.
90 Ibid., para. 131.
91 Ibid.
92 Ibid., para. 129.
93 Ibid., paras 128 and 132.
94 Ibid., paras 124 and 133.
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236 Conceptualizing femicide as a human rights violation
to demonstrate the existence of a male comparator, who may not exist in some
cases. An asymmetric approach to discrimination would be more suitable to
cover the female group’s oppression and could be adopted under the Maputo
Protocol. Forced marriage and the rape inherent in such practices would breach
the prohibition of torture or the right to life, thereby meeting the threshold of
severity required in femicide.
Noteworthy is the African Commission’s discussion on positive obliga-
tions. The Commission potentially created a window of opportunity for state
responsibility in the face of widespread risks of violence against the female
social group. The suffering of the collective female group has its roots in
the tacit societal understanding that women have their fixed place in society
shielded from the State.95 Because cultures and traditions prescribe and accept
certain forms of violence, women and girls may collectively be at risk of being
forcibly abducted for marriage.96 The Commission emphasized the collective
nature of harm to the female social groups who are at risk of further violence
in Equality Now, even though the case concerned the harm inflicted on one
specific woman. However, the Commission’s language use remained vague,
making the advanced Osman standard not yet unequivocally established.
Nevertheless, Equality Now still made great strides towards enhancing state
responsibility for condoning a context where women’s rights are at imminent
risk of being violated. The African human rights bodies’ approach to state
responsibility is helpful to understand state responsibility for femicide char-
acterized by systemic risks for women and girls to be subjected to violence.
95 See Meyersfeld (n 20) 124.
96 See ibid.
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237
CONCLUSION TO PART II
The aspects of femicide addressed in Part II are the ongoing nature of human
rights violations; the severity of harm (one or both of two human rights
violations: either the violation of the prohibition of torture or the right to
life); the discriminatory undertone of systemic violence against female social
groups; and state responsibility by inaction for acts committed by unidenti-
fied or private actors. The African human rights system’s limited case law
relevant to femicide and the Convention on the Elimination of Discrimination
Against Women (CEDAW) Committee’s indirect approach to violence jus-
tified the focus on the European Court of Human Rights (ECtHR) and the
Inter-American Court of Human Rights (IACtHR) in particular, the latter of
which has developed the most progressive standards in terms of recognizing
gender-based violence.
All regional human rights systems have adopted instruments on either vio-
lence against women and girls (VAWG) specifically (the Istanbul Convention
and the Belém do Pará Convention), or women and girls’ rights more broadly
(the Maputo Protocol). This recognition of acts of femicide—such as domestic
violence, forced marriage and abductions—is crucial in the Inter-American
and African system, as Article 7 Belém do Pará Convention and the Maputo
Protocol are justiciable, respectively. Even the ECtHR understands the
European Convention on Human Rights as a ‘living instrument,’ capable
to respond to present-day conditions, and has well integrated the Istanbul
Convention into its analysis in the Grand Chamber’s Kurt v. Austria case, on
which it could build to further solidify these principles.
That acts of femicide are serious is gradually being recognized by regional
human rights bodies. Case law in the Inter-American system on femicide is
characterized by violations of the right to life, especially in connection with
domestic violence and abductions, as well as violation of the prohibition of
torture—such as rape (and sexual violence) committed by non-state actors.
The ECtHR does not clarify whether violence against women is degrading,
inhuman or even torturous treatment, but the Court’s discussion of gendered
harm under Article 3 ECHR suggests that rape too may amount to torture
under this provision. African human rights bodies draw on the IACtHR and
the ECtHR, but relevant standards on rape as torture have yet to develop.
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238 Conceptualzing femicide as a human rights violation
Acts of femicide, such as domestic violence and rape, are also increasingly
seen as torture by the CEDAW Committee, as it has acknowledged in General
Recommendation No. 35. Moreover, rape pursues the purpose of discriminat-
ing against women and girls, as canvassed in the IACtHR’s case law. Sexual
violence can serve as a means of social control to prevent women from par-
ticipating in political protests by intimidating, silencing and wielding power
over them, which meets the ‘prohibited purpose’ criteria under the prohibition
of torture. This is also supported by the sexual harassment and gender-based
insults in the context of the Arab Spring protests examined by the African
Commission, which intended to silence women’s voices. As such, the violence
in femicide is used to punish and control the female social group.
Another important aspect is the impunity femicide encounters. An inef-
fective or biased judicial system, where women’s complaints are not taken
seriously, has a deterring effect on women’s willingness to seek help from
the State. In the Inter-American system, state authorities often fail to investi-
gate crimes against women, because women and girls are blamed for having
provoked crimes by dressing inappropriately. In the ECtHR and the CEDAW
Committee’s cases, state authorities have attempted to reconcile intimate
partners or left domestic violence unanswered. The authorities’ stereotype
that domestic violence is a ‘private’ matter is more challenging to discern than
examining words uttered by police officers, yet the ECtHR has ruled that even
the authorities’ blatant inaction discriminated against women and girls. The
IACtHR and the ECtHR both impose an especially strict duty on the State to
investigate VAWG committed by prison guards and armed soldiers as well as
unidentified perpetrators. This strengthened due diligence duty is formidable
to remedy the sheer passivity with which VAWG was treated over the centu-
ries at the domestic level.
Part II revolves around collective risks because individual risks, e.g., where
a woman is continuously subject to human rights violations, are recognized
by human rights bodies. Apart from the African Commission, regional human
rights bodies are fixated on individual risk, thus overlooking structural risks
such as those inherent in femicide, which cannot be reported as is required
by the Osman standard. An issue to be addressed is how state responsibility
can be triggered when States condone and even facilitate the widespread risk
situations for the female social group. Finally, for state responsibility to be
engaged, it is necessary to clarify and categorize the elements of femicide and
list the human rights violations identified in Part II. The present work has laid
the groundwork for the discussion in the next chapters, which conceptualize
femicide as a human rights violation and clarify state responsibility for such
violence.
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239
PART III
A HUMAN RIGHTS CONCEPT OF
FEMICIDE AND STATE RESPONSIBILITY
Part III is the heart of this book. Chapter 9 sets out the elements of femicide,
closely relying on previously discussed human rights law and aspects of inter-
national crimes. The chapter uses existing human rights violations, defining
their scope with content drawn from feminist legal approaches to human rights
law, to make the conceptualization of femicide in human rights law practical.
Since femicide is frequently committed by non-state actors, and its elements––
such as the prohibition of torture––have the potential to trigger separate state
obligations, this work must consider state responsibility. Chapter 10 shows
how human rights bodies could adequately apply the Osman test, so that acts of
femicide would be recognized under the state responsibility doctrine and could
therefore be attributed to States. In this final discussion, I propose to reinter-
pret the Osman test to cover widespread risks against female social groups,
clarifying and emphasizing that States are accountable for failing to respond to
femicide. I sketch the minimal preventive measures that States should take to
comply with their international obligations to prevent femicide.
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240
9. Conceptualizing femicide as a human
rights violation
Significant numbers of the world’s population are routinely subject to torture, star-
vation, terrorism, humiliation, mutilation, and even murder simply because they are
female. Crimes such as these against any group other than women would be recog-
nized as a civil and political emergency as well as a gross violation of the victims’
humanity.
Charlotte Bunch1
INTRODUCTION
Against the backdrop of extreme violence toward the female social group all
over the world, this chapter conceptualizes femicide as a multi-faceted human
rights violation.2 Since the 1990s, the term ‘femicide/feminicide’ has been
used in relation to a pattern of kidnappings, rapes, and murders of women and
girls in Latin America. Far from being limited to the Latin American region,
femicide exists across the globe: women and girls are forcibly married and
killed at home, and abducted, raped and sexually enslaved in conflicts. Human
rights bodies and criminal tribunals have either partly applied the existing
international human rights and humanitarian law framework or not acknowl-
edged gender as a critical factor contributing to violence against women and
girls (VAWG). Often, they have not held States responsible for acts committed
by private perpetrators.
Based on the analysis in the previous chapters, the proposed concept of
femicide has the potential to help human rights bodies and States identify and
address femicide. I depart from the general understanding of femicide as the
killing of women and girls based on their gender, as such a concept would
mask much gendered harm against women, such as sexual violence, which ulti-
mately leaves women alive. I view femicide through a feminist human rights
prism enhanced by the structures of the crime of genocide and crimes against
1 Charlotte Bunch, ‘Women’s Rights as Human Rights: Toward a Re-Vision of
Human Rights’ (1990) 12(4) Human Rights Quarterly 486–498.
2 Jeremy Sarkin, ‘A Methodology to Ensure that States Adequately Apply Due
Diligence Standards and Processes to Significantly Impact Levels of Violence Against
Women Around the World’ (2018) 40(1) Human Rights Quarterly 1–36 at 2–3.
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241
Conceptualizing femicide
humanity. The contextual element emphasizes that femicide is a group-based
and ‘widespread’ human rights violation. The many human rights violations
inherent in femicide, the ‘acts of femicide,’ meet a certain level of severity,
i.e., either the right to be free from torture or the right to life (with the stipu-
lation that these human rights violations are conceptualized from a feminist
perspective). Femicide further entails violence through which the aim of the
subordination of women and girls is achieved, as theorized by MacKinnon
and Fredman,3 and the presence of a defined target, namely the female social
group. Finally, some human rights must be breached cumulatively: the right
to be free from gender-based violence, as established primarily by regional
treaties or under the Convention on the Elimination of Discrimination Against
Women (CEDAW)’s General Recommendations; the right to access to justice
and/or fair trial rights, the element of impunity resulting in a lack of legal
protection for the victim or her family members. Other human rights violations
may be prevalent in femicide, such as the deprivation of the right to liberty
and security, but these are not pre-conditions for femicide. I conceptualize
femicide as:
Widespread and severe violence targeting a female social group based on their
gender, with the effect of objectifying, subordinating, humiliating, or instilling fear
in women, ultimately relegating women and girls to a subordinate social status,
where such violence remains unpunished by the State.
Of course, it would be desirable if human rights treaties included a precise
definition of femicide. As some broad human rights standards relevant to
femicide are available today, it is necessary to reinterpret them to best suit the
circumstances. As explored previously, human rights bodies usually assess
femicide as a multi-faceted human rights violation. The European Court of
Human Rights (ECtHR) tends to decide cases of domestic violence and rape
under the right to private life (Art. 8 European Convention on Human Rights,
ECHR), the prohibition of degrading or inhuman treatment, and, rarely, under
the prohibition of torture (Art. 3 ECHR) or the right to life (Art. 2 ECHR).4
Currently, the ECtHR tends to overlook gendered harm, although it really
should consistently apply the non-discrimination principle (Art. 14 ECHR)
in torture and domestic violence cases. The Inter-American Court of Human
Rights (IACtHR) more readily classifies its emblematic femicide cases as
3 Sandra Fredman, ‘Substantive Equality Revisited: A Rejoinder to Catharine
MacKinnon’ (2016) 14(3) International Journal of Constitutional Law 712–738 at 749.
4 The ECtHR rarely discusses Arts 13 and 6 ECHR. See ECtHR, Volodina v.
Russia, App No 41261/17 (9 July 2019) para. 102; ECtHR, Opuz v. Turkey, App No
33401/02 (9 March 2009) paras 203–205.
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242 Conceptualizing femicide as a human rights violation
gender-based, involving the right to life (Art. 4 American Convention on
Human Rights, ACHR), the right to personal integrity and liberty (Arts 5
and 7 ACHR), the right to judicial protection and due process (Arts 8(1) and
25(1) ACHR), and the duty to prevent violence under Article 7 Belém do Pará
Convention. The IACtHR has also begun to classify the violence in non-state
actor femicide as torture. Conversely, the African Commission applies
a rigid formal equality approach and does not recognize forced marriage as
gender-based, contrary to the Maputo Protocol.5
Despite some of its shortcomings, the current human rights framework
could address femicide, provided that human rights bodies emphasize the
gendered harm, and adequately identify violence as torture when it meets
the requirements. This would help to dismantle the conceptual bias in human
rights violations relevant to femicide. Certain human rights violations, such as
the right to privacy, should not be classified as acts of femicide, as these would
likely trivialize harm to women and girls. In adjudicating on potential femicide
cases, human rights bodies should: (1) inquire whether gender-based violence
was committed and identify and define the types of violence used––such
as female genital mutilation (FGM), forced marriage, sexual slavery, rape,
domestic violence, among others; (2) query whether the violence was severe,
either amounting to torture or leading to the deprivation of the right to life;
(3) examine the extent to which women and girls, or their family members,
were able to reach grievance mechanisms, i.e., whether women and girls were
stereotyped, and if the State applied a gender perspective to identify the harm
at issue.
The task at hand is to provide the broadest possible protection from femicide
given its many iterations, while simultaneously being sufficiently specific to
distinguish femicide from other human rights violations. Certain issues per-
taining to cultural context are simplified and categorized to make the concept
operable. The femicide concept can be applied in the African, Inter-American,
and European human rights systems and by United Nations (UN) treaty bodies,
especially the CEDAW Committee.
WIDESPREAD VIOLENCE
The systemic violence committed in femicide produces multiple victims
similar to the widespread violence committed as part of crimes against human-
5 African Commission, Egyptian Initiative for Personal Rights and Interrights v.
Egypt, Communication No 323/06, 1 March 2011, paras 121–123; Art. 6(a) Maputo
Protocol.
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243
Conceptualizing femicide
ity.6 Femicide is correspondingly characterized by an observable pattern of acts
which could include a series of killings, forced marriage, sexual enslavement,
or domestic violence. As a case in point, the murder of a woman in Switzerland
every other week might satisfy the widespread element.7 No threshold number
is established regarding how many women and girls need to be attacked, but
such acts must not be ‘single or isolated.’8 Euphemized as so-called family
tragedies, the media regularly portrays domestic violence as a series of isolated
acts committed by pathological perpetrators, unrelated to the systemic context
in which they occur.9 In this vein, the initial assumption was that a serial
killer was slaying women and girls in Ciudad Juarez.10 In erroneously viewing
acts of femicide in isolation, governments fail to embrace the opportunity to
prevent and identify the causes of femicide.
Acts of femicide are widespread as they are rooted in structural inequality,
which mostly regards women and girls as unequal to men and originates in
culturally entrenched sexist attitudes and practices.11 Manne describes sexism
6 See Douglas Guilfoyle, International Criminal Law (Oxford University Press
2016) 266; Antonio Cassese et al. (eds), Cassese’s International Criminal Law, 3rd
edition (Oxford University Press 2013) 93.
7 See statistics in Eidgenössisches Büro für die Gleichstellung von Mann und Frau,
‘Zahlen zu häuslicher Gewalt in der Schweiz’ (5 June 2019), www .ebg .admin .ch/ ebg/
de/ home/ themen/ haeusliche -gewalt/ statistik .html. Except if indicated otherwise, all
online sources were accessed 30 October 2021.
8 See Guilfoyle (n 6) 246.
9 Daniela Bandelli, Feminicide, Gender and Violence: Discourses and
Counterdiscourses in Italy (Palgrave Macmillan 2017) 64. See examples of media
reports that portray acts of femicide as singular, unconnected instances. ‘Drei Tote bei
Familiendrama in Apples’ TagesAnzeiger (18 June 2019), https:// www .tagesanzeiger
.ch/ panorama/ vermischtes/ drei -tote -bei -familiendrama -in -apples -vd/ story/ 10461372;
‘Tötungsdelikt: Polizei findet in Apples im Kanton Waadt eine dreiköpfige Familie tot
auf’ NZZ (18 June 2019, www .nzz .ch/ panorama/ kanton -waadt -polizei -findet -in -apples
-familie -tot -auf -ld .1489780. More recently, some media has started to use the term
‘femicide’ to denote killings in contexts of domestic violence. E.g., Rose Hackman,
‘Femicides in the US: The Silent Epidemic Few Dare to Name’ The Guardian (21
September 2021), https:// www .theguardian .com/ us -news/ 2021/ sep/ 26/ femicide -us
-silent -epidemic.
10 Marcela Lagarde y de los Rios, ‘Preface’ in Rosa-Linda Fregoso and Cynthia
Bejarano (eds), Terrorizing Women, Feminicide in the Americas (Duke University
Press 2010) xiii; González et al. v. Mexico (Cotton Field Case), Preliminary Objection,
Merits, Reparations, and Costs, Inter American Court of Human Rights Series C No
205 (16 November 2009), para. 132.
11 Franz Christian Ebert and Romina Sijniensky, ‘Preventing Violations of the
Right to Life in the European and the Inter-American Human Rights Systems: From the
Osman Test to a Coherent Doctrine on Risk Prevention’ (2015) 15(2) Human Rights
Law Review 343–368 at 363. Pateman maintains that, in contract theory, women’s
subordination is based on nature. Carol Pateman, The Sexual Contract (Stanford
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244 Conceptualizing femicide as a human rights violation
as ‘the “justificatory” branch of a patriarchal order, which consists in ideology
that has the overall function of rationalizing and justifying patriarchal social
relations.’12 In the context of stereotyping, Cook and Cusack maintain that
women’s subordination is based on cultural and legal traditions entrenched in
the patriarchal social order.13 Sexist views in femicide are voiced by the police
officers who tell female protestors to ‘go home and make tortillas,’ implying
that women and girls’ role is in the private sphere, rather than in political
life (see Chapter 7). The structural context of femicide was examined by the
CEDAW Committee in its report on the murders of Ciudad Juarez ‘[which]
represent a structural situation and a social and cultural phenomenon deeply
rooted in customs and mindsets.’14 This structural discrimination oppresses
women and girls in a society which considers gender-based violence against
the subordinated group legitimate.15 However, a contextual element usually
functions as a trigger to turn sexist attitudes into gender-based violence.
In femicide cases, certain contextual elements, such as armed conflicts,
increased military presence, violent peacetime structures, dire economic cir-
cumstances or oppressive political culture, seem to propel an already sexist
society towards widespread VAWG.16 The context-specific reasons and cata-
lysts for femicide are complex; the elements mentioned here are by no means
University Press 1988). See Convention on the Elimination of Discrimination Against
Women (CEDAW), General Recommendation No 19: Violence Against Women,
CEDAW/A/47/38 at 1 (1993), para. 11; Rosa-Linda Fregoso and Cynthia Bejarano,
‘Introduction: A Cartography of Femicide in the Americas’ in Fregoso and Bejarano
(n 10) 12.
12 Kate Manne, Down Girl: The Logic of Misogyny (Oxford University Press 2017)
79.
13 See Rebecca Cook and Simone Cusack, Gender Stereotyping: Transnational
Legal Perspectives (Pennsylvania University Press 2010) 20.
14 Cotton Field Case (n 10) para. 133; Committee on the Elimination of
Discrimination Against Women (CEDAW), Report on Mexico under Article 8 of the
Optional Protocol to the Convention, and reply from the Government of Mexico, UN
Doc CEDAW/C/2005/O 8/MEXICO, 27 January 2005, paras 1937 and 1949 [hereinaf-
ter CEDAW Report 2005].
15 General Recommendation No 19, para. 11; see World Conference on Women,
Beijing Declaration and Platform for Action, Fourth World Conference on Women,
UN Doc A/CONF.177/20 and A/CONF.177/20/Add.1 (15 September 1995) [hereinaf-
ter Bejing Platform for Action].
16 See Dos Erres Massacre v. Guatemala, Preliminary Objections, Merits,
Reparations, and Costs, Inter-American Court of Human Rights Series C No 211 (24
November 2009); Rosendo Cantú et al. v Mexico, Preliminary Objections, Merits,
Reparations, and Costs, Inter-American Court of Human Rights Series C No 216 (31
August 2010); Cotton Field Case (n 10); Susan Benesch, ‘Vile Crime or Inalienable
Right: Defining Incitement to Genocide’ (2008) 48(3) Virginia Journal of International
Law 486–528. See also the ICTR’s Nahimana Case, which discussed that hate
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245
Conceptualizing femicide
exhaustive as they are still being studied in other disciplines and require further
investigation.17 The political climate created by leaders who endorse sexist
views, may foster femicide.18 Former President Silvio Berlusconi normalized
‘misogynist political culture’ in Italy. Measures negatively affecting women
and girls in the US have been taken under the leadership of former President
Donald Trump.19 These sexist views by the highest state official could play
a role in the commission of femicide, and such policies may contribute to an
environment where women and girl’s rights are regularly violated. Countries’
leaders who order sexual violence as a tool in counter-insurgency operations
or terrorist organizations which purport sexist ideologies, also accept violence
in domestic life.20
The situation in Ciudad Juarez illustrates one of the many factors which turn
sexist societal attitudes into gender-based violence. At the outset, a pronounced
machista ‘culture of discrimination against women’ existed leading to a spate
of abductions, rapes, and killings of women and girls.21 In Ciudad Juarez, the
female social group’s achievement of economic independence likely upset the
existing power (im)balance, challenging the traditional roles of men as pro-
viders and women confined to the home sphere.22 As the United Nations (UN)
Special Rapporteur on Violence against Women explained, ‘[w]hile ultimately
empowering women to overcome structural discrimination, these factors may
exacerbate violence and hardship in the short-run.’23 A sudden shift in gender
roles caused a backlash against women and girls who had suddenly become
providers in a sexist society which envisioned them in the home to cook,
clean, and care for their children.24 As Mercedes Olivera argued, ‘the massive
integration of women into the labor force in search of a wage […] effectively
speech can turn into incitement to genocide under certain ‘triggering’ circumstances.
Prosecutor v. Nahimana (Judgment) ICTR-99-52-T (3 December 2003) para. 1015.
17 See e.g., Christiana Kouta et al., ‘Understanding and Preventing Femicide Using
a Cultural and Ecological Approach’ in Shalva Weil et al. (eds.), Femicide across
Europe (Bristol University Press 2018).
18 Benesch (n 16).
19 See Bandelli (n 9) 65. Julie Hirschfeld Davis, ‘Trump Sides With Kavanaugh,
Accusing Democrats of Timing Sex Assault Charge to Delay Confirmation’ New
York Times (18 September 2018), www .nytimes .com/ 2018/ 09/ 18/ us/ politics/ trump
-kavanaugh .html.
20 Angelica Cházaro et al., ‘Getting Away with Murder: Guatemala’s Failure to
Protect Women and Rodi Alvarado’s Quest for Safety’ in Fregoso and Bejarano (n 10)
99–101.
21 See Cotton Field Case (n 10) paras 129 and 132. See also CEDAW Report 2005
(n. 14).
22 Cotton Field Case (n 10) para. 134.
23 Ibid., para. 134.
24 Cházaro et al. (n 20) 98.
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246 Conceptualizing femicide as a human rights violation
destroyed the traditional model of a sexual division of labor without changing
the collective imaginary that women are dependent on men and that their obli-
gations are in the home.’25 In response to this challenge to the patriarchal social
order, multiple perpetrators are believed to have killed a number of women and
girls. Their acts conveyed the message that the patriarchal structures where
men wield power over women, ought to be maintained. From an overarching
perspective, the violence in femicide can be qualified as ‘widespread.’
THE FEMALE SOCIAL GROUP
The salient aspect of the term femicide is that the prefix fem~ identifies the
target to be women and girls, which clarifies that they are the center of the
preventive efforts by the concerned State. Feminist theory teaches that ‘things
[which] are named somehow count and that things without names don’t merit
our attention.’26 However, the femicide project may be confronted with the
criticism that, in its exclusive concern with women and girls, the term is not
neutral. I would contest that argument on the basis that so-called neutral human
rights violations entail an implicit bias where human rights violations better
match harm to men and boys.27 For example, the principles of enforced dis-
appearances and torture, although seemingly neutral, mainly address violence
committed against men and boys.28 A gender-neutral approach is susceptible
to directing attention exclusively to violence used against men and boys.29 At
the same time, the category of a female social group must be defined broadly
to go beyond cisgender women.30
25 Mercedes Oliveira, ‘Violencia Feminicida: Violence Against Women and
Mexico’s Structural Crisis’ in Fregoso and Bejarano (n 10) 53.
26 Leslie Bender, ‘A Lawyer’s Primer on Feminist Theory and Tort’ in Kelly
Weisberg (ed), Feminist Legal Theory, Foundations (Pennsylvania University Press
1993) 61.
27 See Catherine MacKinnon, ‘Marxism, Method, and the State: Toward Feminist
Jurisprudence’ (1983) 8(4) Chicago Journal 635–658 at 427.
28 See Lisa Ott, Enforced Disappearances in International Law (Intersentia 2011)
1. Criticism relating to the implementation of the prohibition of torture can be found
in Hilary Charlesworth and Christine Chinkin, The Boundaries of International Law,
a Feminist Analysis (Juris Publishing 2000).
29 See Pateman (n 11) 119.
30 Jaya Ramji-Nogales, ‘Revisiting the Category “Women”’ in Susan Harris
Rimmer and Kate Ogg (eds), Research Handbook on Feminist Engagement with
International Law (Edward Elgar 2019) 251.
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247
Conceptualizing femicide
Members
The female social group is characterized by its member’s common ‘multiple
oppression.’31 Evidently, women and girls’ shared alienation from the public
sphere is not enough to define the targeted female social group. It would be
neither reasonable nor practical to find that over half of humanity—all women
and girls—are beset in femicide.32 As it is intersectional, the female social
group is affected in many ways.33 Often (even if not always), the members of
the group live in separate family units and spread out over larger geographical
areas, so it has not been identified as and has not received protection equal to
national, ethnic, religious and racial groups.34 To determine who belongs into
the category ‘female social group’ is a challenge that must not essentialize
women and girls.35
The threatened group can usually be categorized on the basis of their risk of
being targeted (see Chapter 10). This means that its members can be identified
through the compounded ways in which they are singled out and discriminat-
ed.36 Aspects of harm in femicide can include common social factors ‘such as
race, ethnicity, religion or belief, health, status, age, class, caste, and sexual
orientation and gender identity,’ and/or geographical criteria.37 Colored women
and other historically marginalized, such as indigenous, women’s intersec-
tional experiences of violence must be factored into the approach to femicide.38
For example, verbal insults of a Peruvian indigenous woman as ‘shitty indian’
while she is raped, suggest that racial hierarchy plays into the gendered act.39
Femicide should thus be conceptualized to ensure that other social factors are
31 Lorena Sosa, Intersectionality in the Human Rights Legal Framework on
Violence Against Women (Cambridge University Press 2017) 33.
32 Fernando Mariño, ‘Una Reflexión sobre la posible Configuración del Crimen
de Feminicidio’ in Fernando Mariño et al. (eds), Feminicidio, El Fin de la Impunidad
(Tirant lo Blanche 2012) 110.
33 Beth Goldblatt, ‘Violence Against Women and Social and Economic Rights:
Deepening the Connections’ in Harris Rimmer and Ogg (n 30) 360.
34 Simone De Beauvoir, The Second Sex (Vintage Books 2011) 8. See also Kelly
Askin, War Crimes Against Women (Kluwer Law International 1997) 254.
35 Jaya Ramji-Nogales (n 30) 242.
36 Sosa (n 31) 33.
37 General Recommendation No 28, para. 18.
38 Kimberlé Crenshaw, ‘Mapping the Margins: Intersectionality, Identity Politics,
and Violence Against Women of Color’ (1991) 43(6) Stanford Law Review 1241–1299
at 1244.
39 Kimberly Theidon, ‘1325 + 17 = ? Filling in the Blanks of the Women, Peace,
and Security Agenda’ in Fionnuala Ní Aoloáin et al. (eds), The Oxford Handbook of
Gender and Conflict (Oxford University Press 2018) 148.
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248 Conceptualizing femicide as a human rights violation
taken into account in the delimitation of the targeted female social group.40 The
IACtHR has defined the female social group as consisting of either ‘young
women from humble backgrounds,’ or more specifically women and girls
living in Guatemala City and Escuintla.41 Applying a geographic criterion, the
African Commission was satisfied that girls ‘in the area where the practice [of
forced marriage] was rampant,’ were at risk of being harmed.42 Specific groups
of women and girls at risk of domestic violence, connected through common
characteristics, such as their migration status, could form a targeted female
social group.43 Cohesive groups, such as the targeted Yazidi population, can be
delimited in terms of their religion and ethnicity (Yazidi) and their geographic
location (Sinjar, Iraq). A group of schoolgirls can be distinguished based on
their place of abduction (schools) and the region (Chibok, Nigeria), although
this may be difficult where the territory in which a terrorist group operates, is
not clearly delineated.
Challenges are encountered in determining who can be excluded from the
targeted female social group, and the protection it affords. Criteria for delim-
iting the group may cause some cases of femicide to be disregarded, such as
a criterion of reproductive age in the case of a 92-year-old woman killed by
her 94-year-old husband in southern France.44 In Ciudad Juarez, many women
and girls of all social backgrounds fell victim, even if poor women and girls
were primarily targeted.45 Complex hierarchies exist within the female group,
which must be kept in mind when delimiting the targeted group in a specific
case.46 At the same time, adherence to select criteria rather than all of them,
with some criteria being prioritized, must suffice to grant protection in case of
multiple criteria delimitating the targeted female social group. A case-specific
40 See Bonita Meyersfeld, Domestic Violence and International Law (Hart
Publishing 2011) 123–124. See also Crenshaw (n 38) 1242.
41 Cotton Field Case (n 10) 282; Veliz Franco et al. v. Guatemala, Preliminary
Objections, Merits, Reparations, and Costs, Inter-American Court of Human Rights
Series C No 277 (19 May 2014), paras. 78 and 111. In Velásquez Paiz, the IACtHR
noted that levels of VAWG were rising, but did not otherwise define the targeted group.
See also Velásquez Paiz v. Guatemala, Preliminary Objections, Merits, Reparations,
and Costs, Inter-American Court of Human Rights Series C No 307 (19 November
2015), para. 111.
42 African Commission on Human and People’s Rights, Equality Now and Ethiopian
Women Lawyers Association v. Federal Republic of Ethiopia, Communication No.
341/2007, 25 February 2016, para. 126.
43 See ECtHR, Kurt v. Austria [GC], App No 62903/15 (15 June 2021); Goekce et
al. v. Austria, Communication No 25/2005, CEDAW/C/39/D/5/2005, 6 August 2007.
44 BBC, ‘France announces Anti-Feminicide Measures as 100th killing recorded’
BBC (3 September 2019), www .bbc .com/ news/ world -europe -49571327.
45 Lagarde y de los Rios (n 10) xx.
46 Jaya Ramji-Nogales (n 30) 243.
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249
Conceptualizing femicide
assessment must be conducted to grapple with the question of who belongs to
the group. Finally, children or other loved ones may be attacked to hurt the
female social group.47
Perpetrators
Existing criminal laws on femicide require or imply that perpetrators of
femicide are men or boys. Russell reasons that perpetrators of femicide must
always be male, referring to data to demonstrate that the killings of women
and girls are disproportionately committed by men. She explicitly excludes
cases where women kill their female babies (feticide) and conduct FGM, as
women involved in such violence are ‘agents of males or the patriarchy.’48
This approach neglects that such women and girls reinforce patriarchal struc-
tures and subjugate other women and girls by either carrying out violence or
being complicit in acts of femicide.49 The IACtHR noted in Veliz Franco that
a witness saw ‘a woman get out of a vehicle and drop a black sack in some
bushes; the sack turned out to be the body of [Maria Isabel Veliz Franco].’50
Similarly, in the Islamic State in Iraq and Al-Sham (ISIS), women have been
complicit in the ill-treatment and torture of Yazidi women and girls.51 An
important distinction must be made between acts of femicide committed by
a man or a woman. When women and girls commit gender-based acts, they are
complicit in their own oppression. However, unlike men and boys, they do not
belong to the ruling social class with all its privileges.52 Elderly women typi-
cally perform the often-life-threatening FGM procedure.53 Having undergone
the same procedure when they were young, elderly women cut girls’ genitals
47 Opuz v. Turkey (n 4) para. 132. See also Talpis v. Italy, App No 41237/14 (2
March 2017) para. 99.
48 Diana Russell, ‘The Origins and Importance of the Term Femicide,’ www
.dianarussell .com/ origin _of _femicide .html (last accessed 18 November 2019).
49 See Bender (n 26) 60. For a female perpetrator who orchestrated mass rapes in
Butare, Rwanda, see Prosecutor v. Nyiramasuhuko et al. (Butare) (Appeals Judgment)
ICTR-98-42 (22 April 2015).
50 Veliz Franco v. Guatemala (n 41) 103.
51 Annette Ramelsberger and Susi Wimmer, ‘Es wäre Jennifer W. möglich und
zumutbar gewesen, das Kind zu befreien’ Süddeutsche Zeitung (25 October 2021),
https:// www .sueddeutsche .de/ politik/ jennifer -w -urteil -zehn -jahre -haft -1 .5448528.
‘Yazidi Women Seek Justice in U.S. Court for Crimes Committed by ISIL’ Yazda (29
April 2021), https:// www .yazda .org/ yazidi -women -seek -justice -in -us -court -for -crimes
-committed -by -isil.
52 See Manne (n 12) 214.
53 Various forms and levels of violence are present in FMG. See Susan Deller
Ross, Women’s Human Rights: The International and Comparative Law Casebook
(University of Pennsylvania Press 2013) 464–465.
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250 Conceptualizing femicide as a human rights violation
to help ‘control and repress women by taking away their sexuality,’ sexuality
which was once taken from them as well.54
GENDER-BASED ACTS
Gender-based violence lies at the heart of femicide.55 Current developments in
international law and society suggest that gender-based violence is a human
rights violation. The CEDAW Committee condemns it as customary interna-
tional law,56 defining gender-based violence as violence which mainly affects
women and girls, or even affects them because they are women or girls, a defi-
nition largely adopted by regional human rights bodies. At the regional levels,
many acts of femicide are listed and defined in the Istanbul Convention, the
Belém do Pará Convention and the Maputo Protocol: e.g., forced marriage,
FGM, domestic violence, forced sterilization, rape, and sexual violence.57 The
scope of some of these acts, i.e., sexual slavery and forced marriage, has been
outlined in these specialized regional treaties and international case law. The
regional women’s rights treaties clarify that gender-based violence includes
(1) acts committed against women or girls, (2) physical, psychological, eco-
nomic,58 and sexual harm, (3) regardless of whether it occurs in public or in
private.59 The relevant gender-based act, e.g., forced marriage can be identified
by the human rights body or practitioner as long as it is defined in a regional
54 Interview in ibid., 464.
55 See Celina Romany, ‘Women as Aliens: A Feminist Critique of the Public/
Private Distinction in International Human Rights Law’ (1993) 6 Harvard Human
Rights Journal 87–125 at 97. See also Pateman (n 11) 118.
56 General Recommendation No 35 on Gender-based Violence Against Women,
updating General Recommendation No 19, CEDAW/C/GC/35 (2017), paras 2 and 7.
57 See Art. 3 Council of Europe’s Convention on Preventing and Combating
Violence against Women and Domestic Violence (Istanbul Convention) (adopted 7
April 2011, entered into force 1 August 2014); Art. 2 Inter-American Convention
on the Prevention, Punishment and Eradication of Violence Against Women (Belém
do Pará Convention) (adopted 9 June 1994, entered into force 3 May 1995); Art. 1
Maputo Protocol (domestic and other violence) Additional Protocol to African Charter
on Human and Peoples’ Rights (Maputo Protocol) (adopted 27 June 1981, entered into
force 21 October 1986) (1982) 21 ILM 58; Art. 38 Istanbul Convention (female genital
mutilation); Art. 39 Istanbul Convention (forced sterilization); The Istanbul Convention
is the only regional treaty to define sexual violence and rape in Art. 36.
58 Economic harm is only listed in the definition of Art. 3(a) Istanbul Convention.
59 Only the Istanbul Convention and the Belém do Pará Convention explicitly refer-
ence ‘gender-based violence,’ whereas the Maputo Protocol uses the more generic term
‘violence against women’. However, the two terms are apparently used interchange-
ably. Art. 1 Belém do Pará Convention; Art. 1(j) Maputo Protocol; Art. 3(a) Istanbul
Convention.
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251
Conceptualizing femicide
treaty. Finally, where no definitions exist or States have not ratified the respec-
tive treaty, the CEDAW Committee’s broad notion of gender-based violence
can work as a residual clause.
Gender-based violence tends to recur over a longer period. As an insidious
form of violence, e.g., domestic violence may impact on the victim’s whole
life.60 FGM may cause health complications throughout a woman’s lifespan,
including death during childbirth, while a sexually enslaved woman can be
injured through rape and is vulnerable to sexually transmitted diseases.61
Such continuous crimes are serious and must be treated with urgency as
potential slow-death measures.62 Femicidal acts can be roughly divided into
gender-based acts combined with sexual violence and those without any sexual
component.
Sexual Violence
Sexual violence is part of forced marriage and sexual slavery, and it is there-
fore particularly present in femicide.63 Akayesu’s rape definition best captures
the unlimited, brutal ways of femicidal rapes, such as those through mutila-
tion of a woman’s body.64 Furundžija’s mechanical rape description would
exclude such rapes. Akayesu’s rape definition can further be supplemented
by Kunarac’s approach to coercive circumstances.65 As war crimes, crimes
against humanity and genocide cannot be consented to, a victim of femicide
cannot agree to her ordeal. The coercion in rape as an act of femicide is
two-fold: the continuous nature of human rights violations and the widespread
element.66 Once the girl is abducted for forced marriage, she is raped each
60 Volodina v. Russia (n 4) para. 86.
61 Deller Ross (n 53) 455–501; Omar Swartz, Transformative Communication
Studies, Culture, Hierarchy and the Human Condition (Troubadour Publishing 2008)
54.
62 See Meyersfeld (n 40) 118.
63 Arts 11(3) (rape in relation to armed conflict) and 14(c) (reproductive rights)
Maputo Protocol; Art. 2 Belém do Pará Convention (listing rape as a form of violence
against women); Arts 25 (support for rape victims) and 36 Istanbul Convention (defines
rape and sexual violence). See also Arts 3(g) and 4(e) ICTR Statute; Art. 5(g) ICTY
Statute; Arts 7(g) and 8(vi) and (xxii) Rome Statute.
64 See Daniel Hernández Guzmán, ‘Más Allá de los Feminicidios: Violencia y
Cuerpo Femenino en “La parte de los Crímenes” de Roberto Bolaño’ (2016) 20(40)
Cuadernos de Literatura 633–647 at 637–638.
65 Prosecutor v. Kunarac et al. (Judgment) ICTY-96-23 & 23/1 (11 February
2001) paras 96 and 645–646; Vertido v. the Philippines, Communication No 18/2008,
CEDAW/C/46/D/18/2008, 16 July 2010, paras 8.7 and 8.9.iii.
66 See ECtHR, E.B. v. Romania, App No 49089/10 (19 March 2019) paras 54–55.
See Volodina v. Russia (n 4) para. 86.
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252 Conceptualizing femicide as a human rights violation
day––even if she is ‘legally’ married. She could also be under psychological
pressure as she tries to regain her personal freedom. As to the widespread
context, a woman abducted in Ciudad Juarez, who knows that women and
girls are often killed, might seemingly ‘consent’ to sexual intercourse, hoping
to remain alive by doing so. In femicidal contexts, which are coercive, sexual
intercourse should therefore always constitute rape.
Forced marriage, relevant to the femicide of schoolgirls, is defined and pro-
hibited under treaty law. The Istanbul Convention instructs States to ‘ensure
that marriages concluded under force may be voidable, annulled or dissolved
without undue financial or administrative burden placed on the victim.’67
The Maputo Protocol specifies that ‘no marriage shall take place without the
free and full consent of both parties’ and sets the minimum marriage age at
18 years.68 The International Criminal Court (ICC) also clarifies that forced
marriage differs from sexual slavery, insofar as forced marriage means that
the victim is linked to one aggressor.69 One shortcoming of the conception of
forced marriage in international law is that neither human rights treaties nor
the ICC establish that rape is inevitably part of forced marriage, and that forced
marriage is accompanied by other violent acts.70
The elements of sexual slavery in femicide can also be discerned in case
law.71 Sexual slavery is listed in the Rome Statute and has been adjudicated
by the Special Court for Sierra Leone (SCSL).72 As the latter noted, the sexual
aspect in women’s enslavement ‘has been historically overlooked.’73 Sexual
slavery contains a slavery element (exercise of powers attached to the right
of ownership) as well as a sexual element (the commission of sexual acts).74
Only slavery is recognized in international instruments. While sexual slavery
is absent from such instruments, the IACtHR made the sexual aspect of slavery
67 Art. 32 Istanbul Convention. Art. 37(2) requires States to criminalize ‘intentional
conduct of luring an adult or a child to the territory of [another State].’
68 Art. 6(a) Maputo Protocol.
69 Prosecutor v. Ongwen (Decision on the Confirmation of the Charges)
ICC-02/04-01/15 (23 March 2016), para. 93.
70 Cecilia Bailliet, ‘Persecution in the Home’ (2012) 30(1) Nordic Journal of
Human Rights 36–62 at 48.
71 Kunarac (n 65) para. 96; López Soto v. Venezuela, Merits, Reparations, and
Costs, Inter-American Court of Human Rights Series C No 36 (26 September 2018).
72 Art. 7(g) Rome Statute; Prosecutor v. Sesay, Kallon and Gbao (Judgment)
SCSL-04-15-T (2 March 2009) para. 156.
73 Sesay (n 72) para. 156.
74 Ibid., para. 159.
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253
Conceptualizing femicide
visible in López Soto.75 Sexual slavery means that the assailant exercises own-
ership over the victim and that her sexual autonomy is infringed.76
Other Violence
Other violence, such as domestic violence unrelated to sexual harm, merits con-
sideration as acts of femicide. As Alice Miller has argued, ‘“hyper-attention”
to sex perversely operate[s] to exclude attention to other aspects of harm,’
referring to participatory equality and labor equality, among others.77 Criticism
that international attention is focused on sexual violence in a sensationalist
manner is also reflected in the absence of provisions on harm other than sexual
violence in treaties and international case law. Dowry-related deaths, widow
burning, foot binding, and acid throwing are not included in any specialized
women’s rights instrument.78 They can only be examined by courts through
a procedural lens.79 Yet, non-sexual violent acts may cause severe physical and
mental harm, may even involve torture and murder, and could and should also
be considered gender-based acts of femicide.
SEVERE VIOLENCE
Femicide is touted as an ‘extreme form of gender-based violence,’ which
involves brutal attacks on woman and girls’ physical and mental integrity.80
Only serious harm, such as severe physical and psychological harm compara-
ble to a crime against humanity in severity, ought to trigger the application of
human rights law.81 The criterium of ‘severe violence’ is open to interpretation.
By this term, I understand one (or both) of two human rights violations: (1) the
severity required must reach the threshold of the prohibition of torture; and/
or (2) violate the right to life. The severity threshold I use is the prohibition
75 López Soto v. Venezuela (n 71) para. 181.
76 Ibid., para. 179.
77 Alice Miller, ‘Sexuality, Violence against Women, and Human Rights: Women
Make Demands and Ladies Get Protection’ (2004) 7(2) Health and Human Rights
17–47 at 19.
78 Art. 20 Maputo Protocol mentions widows’ rights but remains silent on widow
burning practices.
79 See ECtHR, Ebcin v. Turkey, App No 19506/05 (11 May 2001); ECtHR,
Tershana v. Albania, App No 48756/14 (4 August 2020).
80 Human Rights Committee, General Comment No 35 on Article 6 of the ICCPR,
on the Right to Life (30 October 2018) UN Doc CCPR/C/GC/36 [hereinafter General
Comment No 35 (ICCPR)], para. 61.
81 See Meyersfeld, who sets the threshold for domestic violence lower. Meyersfeld
(n 40) 112–113.
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254 Conceptualizing femicide as a human rights violation
of torture, as opposed to other degrading or inhuman treatment, since it best
covers extreme forms of violence in femicide and conveys that violence
against women is serious enough to trigger jus cogens protection. Admittedly,
the prohibition of torture itself is defined in various ways. I take the widely
used three-prong test and view it through the feminist critique to torture lens.
(Sexual) Torture
The prohibition of torture enjoys the status of a jus cogens and is a grave
breach under international humanitarian law.82 The recognition of acts of femi-
cide as torture helps States recognize the seriousness of the plight of women
and girls as regards forced marriage, sexual slavery, and domestic violence.
As revealed previously, the commission of rape may breach the prohibition of
torture, even when the rapists are non-state actors.83 When human rights bodies
fail to properly adjudicate gender-based acts as torture, even though the criteria
outlined here are met, the acts at issue may still constitute femicide. That rape
is intentionally committed, is considered established. It generally meets the
severity threshold, even in the absence of physical harm, as ‘severe suffering
is inherent in rape’84 and such pain cannot be easily overcome over time.85 In
the international criminal law context, the International Criminal Tribunal
for Rwanda (ICTR) considered that Tutsi women’s rapes destroyed ‘their
spirit and will to live;’86 the International Criminal Tribunal for the former
Yugoslavia (ICTY) stated that serious harm ‘results in a grave and long-term
82 Kelly Askin, ‘Prosecuting Wartime Rape and other Gender-Related Crimes
under International Law, Extraordinary Advances, Enduring Obstacles’ in Sari Kouvo
and Zoe Pearson (eds) Gender and International Law (Routledge 2014) 189–190.
On grave breaches, see Roger O’Keefe, ‘The Grave Breaches Regime and Universal
Jurisdiction’ (2009) 7 Journal of International Criminal Justice 811–831.
83 See UNGA, Relevance of the Prohibition of Torture and Other Cruel, Inhuman
or Degrading Treatment or Punishment to the Context of Domestic Violence (12 July
2019) UN Doc A/74/148 [hereinafter Melzer, ‘Torture and Domestic Violence’], paras
10, 25, 31, 34 and 36.
84 López Soto v. Venezuela (n 71) para. 187.
85 Miguel Castro-Castro Prison v. Peru, Preliminary Objections, Merits,
Reparations, and Costs, Inter-American Court of Human Rights Series C No 160 (25
November 2006), para. 124; Fernandez Ortega et al v. Mexico, Preliminary Objections,
Merits, Reparations, and Costs, Inter-American Court of Human Rights Series C
No 224 (30 August 2010), para. 311; Women Victims of Sexual Torture in Atenco v.
Mexico, Preliminary Objections, Merits, Reparations, and Costs, Inter-American Court
of Human Rights Series C No 371 (20 November 2018) para. 196.
86 International Criminal Tribunal for Rwanda (ICTR), Prosecutor v. Akayesu
(Judgment) ICTR-96-4-T (2 September 1998), para. 732.
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255
Conceptualizing femicide
disadvantage to a person’s ability to lead a normal and constructive life.’87 As
to the third aspect, I consider in line with feminist critique to human rights
law that the prohibited purpose also encompasses discrimination apart from
other purposes. This understanding has translated into some international case
law. The IACtHR considers that a purpose of torture can be discrimination,
and that ‘rape like torture pursues, among others, the purpose of intimidating,
degrading, humiliating, punishing or controlling the person.’88 Consequently,
sexual slavery and forced marriage, which entail rape, would also breach the
prohibition of torture as acts of femicide.89 With respect to domestic violence,
the United Nations (UN) Special Rapporteur on Torture, Nils Melzer, accepted
feminists efforts90 that domestic violence––including physical, psychological,
economic, and sexual violence––can amount to torture.91 These approaches
should be advanced by human rights bodies, which ought to classify rape as
torture as a matter of course in cases of femicide.92
Killings
Femicide may be (mis)understood as a human rights violation which nec-
essarily ends the victim’s life. Naturally, women and girls may be deprived
of their lives instantly, e.g., in domestic violence cases resulting in death.
Even so, physical and/or psychological or mental harm may have preceded
their death.93 However, although the right to life is particularly present in
femicide, the victim does not always die immediately in sexual slavery or
forced marriage, which may constitute slow-death measures.94 A woman
87 International Criminal Tribunal for the former Yugoslavia (ICTY), Prosecutor v.
Krstic (Judgment) ICTY-98-33 (2 August 2001) paras 486 and 513. See Prosecutor v.
Seromba (Appeals Judgment) ICTR-2001-66-A (12 March 2008), para. 46; Akayesu (n
86), para. 731.
88 Atenco v. Mexico (n 85) para. 193.
89 For breaches of the prohibition of torture, see López Soto v. Venezuela (n 71);
ECtHR, Aydin v. Turkey, App No 57/1996/676/866 (25 September 1997); Atenco v.
Mexico (n 85). See also Melzer (n 83).
90 See in particular, Russell’s work. Diana Russell, Rape in Marriage (MacMillan
Publishing 1982).
91 Melzer (n 83) paras 10, 25, 31, 34 and 36.
92 See ibid., paras 25–26.
93 E.g., ECtHR, Branko Tomašić and Others v. Croatia, App No 46598/06
(15 January 2009); Talpis v. Italy (n 47); Angela Gonzalez Carreño v. Spain,
Communication No 47/2012, CEDAW/C/58/D/47/2012, 16 July 2014.
94 Some women escape or are rescued before they are killed. López Soto v.
Venezuela (n 71). For another example where a severely injured woman survived, see
Redacción, ‘Condenan a 11 años a la expareja de Arlette Contreras, la mujer agredida
brutalmente por su novio en un hotel y cuyo caso se convirtió en un emblema de la vio-
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256 Conceptualizing femicide as a human rights violation
who is abducted in Ciudad Juarez is likely to die after she is raped, sexually
enslaved, and otherwise tortured. Furthermore, constant beatings, and physical
and mental abuse may entail long-term health complications for domestic
violence victims. Committed in armed conflict and crimes against humanity/
genocidal contexts, rapes may cause injuries or lead to diseases. The Human
Rights Committee (HRC)’s General Comment No. 35 on the right to life
considers that ‘[f]emicide […] is a particularly grave form of assault on the
right to life.’95 And yet, the General Comment fails to formulate the right to
life so as to include the distinctive ways women and girls are killed through
dowry-related, honor or widow killings, FGM and domestic violence.96
Furthermore, the General Comment makes no mention of slow-death measures
as severe human rights violations fundamental to the exercise of other human
rights.97 As Chinkin points out, ‘being a women is in itself life-threatening,’ as
a result of which women require legal protection against the risks associated
with being female.98
THE ‘SOCIAL’ DESTRUCTION
The objective of femicide is the maintenance of the patriarchal social system,
achieved through misogynist violence, where women and girls are subordi-
nated to, or dominated by, men and boys and the institutionalized political
power.99 As the Declaration on the Elimination of Violence Against Women
(DEVAW) outlines, violence serves as ‘one of the crucial social mechanisms
by which women are forced into a subordinate position compared with
men.’100 Should a woman overstep her socially assigned role, she may be
punished through violence.101 In this vein, the CEDAW Committee states that
lencia de género en Perú’ BBC (9 July 2019), www .bbc .commundo/ noticias -america
-latina -48922685.
95 General Comment No 35 (ICCPR), para. 61.
96 See Catharine MacKinnon, Are Women Human? And Other International
Dialogues (Harvard University Press 2007) 42; Helen Bequaert Holmes, ‘A Feminist
Analysis of the Universal Declaration of Human Rights’ in Carol Gould (ed), Beyond
Domination, New Perspectives on Women and Philosophy (Roman & Allanhelm
Publishers 1983) 260–261; Carin Benninger-Budel, Due Diligence and Its Application
to Protect Women from Violence (Brill 2008) 4.
97 E.g., Talpis v. Italy (n 47) para. 97.
98 Charlesworth and Chinkin (n 28) 234.
99 Oliveira (n 25) 51. See Manne (n 12) 23.
100 Preamble Declaration on the Elimination of Violence Against Women (DEVAW).
See also General Recommendation No 19, para. 11; General Recommendation No 35,
para. 19.
101 Manne (n 12) 23.
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257
Conceptualizing femicide
‘the underlying consequences of these forms of gender-based violence help
to maintain women in subordinate roles and contribute to the low level of
political participation and to their lower level of education, skills, and work
opportunities.’102
Two examples detail how misogynist violence punishes women for trans-
gressing social norms. When 16-year-old Lubia left her abusive partner and
moved in with her parents, he turned up at her parent’s house armed with
machetes. He slew her mother and severely injured her father who had tried to
intervene.103 The perpetrator’s brother argued that, since she was pregnant with
his child, ‘[h]e was right to go back and try to claim her […]. She shouldn’t
have left him.’104 Lubia was punished for leaving an abusive situation. As
Guatemalan scholar Morales Trujillo states, this type of violence is caused
by ‘the belief that women have no autonomy; that they do not own their own
bodies or their own lives but are, instead, things or goods that belong to men,
who can dispose of them as they please.’105 Similarly, Mattia Stanga shot his
ex-girlfriend, Alba Chiara, when he learned that she intended to leave him after
six years.106 Sociologist and psychiatrist Crepet notes that Mattia’s reaction
stemmed from ‘emotional feudalism,’ where men believe that they exercise
the right to ownership over their girlfriends, ‘as if she were a house, a car, and
a woman.’107 Because he considers the woman his ‘property,’ a man assumes
that he can do whatever he likes to her, enforcing his dominant position
through misogynist violence.
Feminist philosophy sees the function of VAWG as a tool to maintain
the patriarchal social order. Having described sexism as the justification of
patriarchy, Manne understands misogynist violence as violence which ‘polices
and enforces [the] governing norms and expectations [of the patriarchal
social order]’108 and the ‘law-enforcement branch of patriarchal order.’109
Brownmiller considers rape ‘as a mechanism of social control to keep women
102 General Recommendation No 19, para. 11; General Recommendation No 35,
para. 19.
103 Azam Ahmed, ‘Women Are Fleeing Death at Home. The U.S. Wants to Keep
Them Out’ New York Times (18 August 2019), www .nytimes .com/ 2019/ 08/ 18/ world/
americas/ guatemala -violence -women -asylum .htm.
104 Ibid.
105 Hilda Morales Trujillo, ‘Femicide and Sexual Violence in Guatemala’ in Fregoso
and Bejarano (n 10) 128.
106 Margherita Bettoni, ‘Liebe mich oder Stirb’ (2019) 45 Reportagen 18–37 at 19.
107 Ibid., 36.
108 Manne (n 12) 23.
109 Ibid., 63.
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258 Conceptualizing femicide as a human rights violation
in line.’110 Kennedy similarly maintains that women are disciplined for trans-
gressing social norms, e.g., when they are blamed for violence against them
because of the way they dressed.111 However, as Fregoso and Bejarano clarify,
the violence in femicide is influenced by other factors as well, as it can also
be ‘a tool of racism, economic oppression, and colonialism.’112 As a result of
violence, women and girls are socially destroyed, deprived of many of their
human rights and fundamental freedoms.
A parallel can be drawn between the purpose behind femicide and the
‘destruction’ of national, ethnic, religious, and racial groups under the gen-
ocide framework. Although the aim of femicide differs from the genocidal
bio-physical destruction, some instances of social subordination accompany
the physical destruction of protected groups under the crime of genocide. For
example, the transfer of children intends the destruction of the social fabric
of a protected national group.113 While the children may not be physically
harmed, they are likely subjected to psychological stress for being deprived
of their cultural background and removed from their families, subjected to
cultural genocide and subordinated like women and girls. Having studied
genocide, Lemkin argued that social subordination could be included in the
definition of genocide. Lemkin described that, in Poland, the study of liberal
arts was prohibited, Jewish libraries were burned, presumably to suppress
critical thinking, and German was imposed as a language of instruction in
many conquered territories.114 Apart from its physical destruction, a group’s
social and cultural deprivation of citizenship was at stake.115 As discussed in
Chapter 4, women’s reproductive capability is a crucial aspect of why they are
kept alive instead of being exterminated as a social group. Even lethal violence
serves to send a message to society as it intimidates and threatens the women
and girls who remain alive.116 Based on Lemkin’s approach, it is therefore not
110 Brownmiller also refers to anthropological examples where women are gang
raped by villagers as a mechanism of social control. Susan Brownmiller, Against Our
Will (Fawcett Columbine 1975) 284–288.
111 Duncan Kennedy, Sexy Dressing Etc., Essays on the Power and Politics of
Cultural Identity (Harvard University Press 1993) 141.
112 Fregoso and Bejarano (n 11) 12.
113 Claus Kress, ‘The Crime of Genocide Under International Law’ in Antonio
Cassese et al. (eds), International Criminal Law, Critical Concepts in Law (Routledge
2015) 180.
114 Raphael Lemkin, Axis Rule in Occupied Europe, Laws of Occupation, Analysis
of Government, Proposals for Redress (Rumford Press 1944) 84.
115 Ibid., 79.
116 De Beauvoir (n 34) 8–9, 21 and 89; Andrea Dworkin, Woman Hating (Penguin
Books 1974) 93.
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259
Conceptualizing femicide
far-fetched to conclude that the social subordination in femicide is a form of
destruction which can be legally qualified.
Characteristics
The social oppression of a group of women and girls is characterized by humil-
iation, objectification, and instilment of fear. These aspects may overlap each
other and should be considered as illustrative of the ‘aim’ of femicide.
Humiliation
The female social group’s humiliation can be observed in relation to political
protests. Throughout the demonstrations on Tahrir Square in Egypt and polit-
ical protests in Atenco in Mexico, women and girls were randomly detained,
stripped naked, sexually assaulted in public, and/or raped by state agents.
Although such treatment is invariably humiliating, the degradation or humil-
iation women suffer is shaped by a cultural context where societal norms are
violated. The forced removal of a women’s hijab by the police may stigmatize
her in her own community. Furthermore, occurring in the public space and
often concerning the most intimate aspect of their lives, such humiliation may
cause severe psychological harm.117 Having been humiliated in public, women
and girls might avoid further political confrontation, which restricts their fun-
damental democratic rights and equal political participation, and effectively
strips them of their citizenship in a democratic society. Fearing more stigmati-
zation through the judicial system, they may be reluctant to report violence.118
Family members who try to have the authorities investigate the violence
against their daughters and sisters may also be humiliated as authorities may
blame them for exposing their loved ones to violence.119
Objectification
ISIS institutionalized the sexual enslavement of Yazidi women and girls,
objectifying them as sexual objects and openly admitted to organizing and
regulating a slave trade.120 ISIS rules mark the female Yazidi population as
sabaya (sex slaves). According to Rule 6.1, ‘[i]t is permissible to buy, sell, or
117 UN Entity for Gender Equality and the Empowerment of Women, Latin
American Model Protocol for the Investigation of Gender-related Killings of Women
(Femicide/Feminicide) (2004) 48.
118 E.g., ECtHR, M.C. v. Bulgaria, App No 39272/98 (4 December 2003) para. 37.
119 Velásquez Paiz v. Guatemala (n 41) para. 172; López Soto v. Venezuela (n 71)
paras 262 and 264–267.
120 Samar El-Masri, ‘Prosecuting ISIS for the Sexual Slavery of the Yazidi Women
and Girls’ (2018) 22(8) The International Journal of Human Rights 1047–1066 at 1052.
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260 Conceptualizing femicide as a human rights violation
give as a gift female captives and slaves, for they are merely property, which
can be disposed of as long as that does not cause [the Muslim Ummah] any
harm or damage.’121 The rules are clear that, while Yazidi women and girls can
be beaten, they should not be beaten to death or severely injured. This suggests
that ISIS wants to use female slaves, but not physically destroy them.122 As in
many wars, the women and girls are trophies for fighters. They serve to attract
new recruits, also from abroad.123
The objectification of women and girls has been theorized by various schol-
ars. Pateman considers that, under the marriage contract, women and girls
served as sexual slaves, since their husbands had, and sometimes still have,
unlimited access to their sexuality.124 In her work on pornography, MacKinnon
argues that the objectification of women in pornography leads to and is caused
by VAWG:125 ‘In pornography[,] women exist to the end of male pleasure.’126
Her work illustrates that objectification is predominantly negative in femi-
cide.127 By contrast, Nussbaum maintains that ‘objectification’ of women (and
men) may occur in a respectful intimate relationship. At the same time, she
concedes that many forms of objectification are negative and violate women’s
autonomy.128 Drawing on Nussbaum, Manne views the act of objectification
as ‘“willful denial and self-aggrandizement” wherein the agent refuses to see
himself as coming down in the social world in relation to women, or even to be
at any risk of this happening.’129 Much in line with these theories, in femicide,
violence instrumentalizes women and girls as sexual objects to be (ab)used and
objectified.130
121 Question 6. Mah-Rukh Ali, ‘ISIS and Propaganda: How ISIS Exploits Women’,
Reuters Institute Fellowship Paper (University of Oxford 2015) 1–25 at 20. See also
Dunya Mikhail, The Beekeeper, Rescuing the Stolen Women of Iraq (New Directions
Paperbook 2018) 18 [emphasis added].
122 Question 19: Is it permissible to beat a female slave? Ali (n 121) 20.
123 Lizzie Dearden, ‘ISIS Among Terrorist Groups Using Slaves to Recruit Rapists
and Domestic Abusers’ The Independent (9 October 2017), www .independent .co .uk/
news/ world/ middle -east/ isis -sex -slaves -yazidi -recruit -fund -terrorism -trafficking -boko
-haram -report -hjs -libya -syria -iraq -a7991366 .html.
124 Pateman (n 11) 120–124.
125 MacKinnon (n 96) 114.
126 Catherine MacKinnon, Feminism Unmodified (Harvard University Press 1987)
158.
127 MacKinnon (n 96) 114.
128 Martha Nussbaum, ‘Objectification’ (1995) 24(4) Philosophy and Public Affairs
249–291 at 250.
129 Manne (n 12) 86.
130 MacKinnon (n 126) 158.
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261
Conceptualizing femicide
Instillment of fear
Fear instilled in the entire (female) population can cause women and girls
to comply with their socially assigned roles with a subordinate social status.
A Guatemalan woman who is beaten by her husband, may be aware that she is
likely to be killed one day in certain places in Guatemala.131 As a ‘weapon of
war,’ rape targets women and girls to instill fear into communities.132 Extreme
cruelty and the public display of decapitated and mutilated bodies can cause so
much fear that women and girls either learn to behave in line with social norms
or flee the area.133 Many women and girls who find themselves in the middle of
such widespread violence, would likely be distressed, fearing that they would
be the next victim.
Confronted with a choice of either behaving in certain ways, which will
not guarantee survival, or meeting a similar fate, fear may prompt women
and girls to comply with the patriarchal social order. Kennedy distinguishes
between women who refuse to abide by the norms––who still go to work in the
context of femicide––and ‘end up paying the price,’ and those who, ‘by fore-
going doing things they want to do,’ can remain safe at the cost of losing their
liberty and agency.134 They may refrain from attending political events, going
to work or walking by themselves at night.135 Obeying the rules set by their
potential abusers, women and girls may survive for some time. The behavior
of this ‘sensible woman’ comes at a steep cost.136 She must live a life where her
wishes and desires remain unfulfilled and are subordinated to the patriarchal
rule.137 Women who try to challenge the so-called divine order often will be
harmed or will have their children attacked as is the case in domestic violence.
Alternatively, women and girls (and their families) may decide to flee from
gender-based violence.138
Inequality
In the eyes of the law, the subordination of women and girls can be qualified
as inequality––which in turn makes women and girls susceptible to violence.139
131 See e.g., the case of Rodi Alvarado in Cházaro et al. (n 20).
132 Margareth Etienne, ‘Addressing Gender-based Violence in an International
Context’ (1995) 18 Harvard Women’s Law Journal 139–170 at 139.
133 Rita Laura Segato, ‘Territory, Sovereignty, and Crimes of the Second State’ in
Fregoso and Bejarano (n 10) 79.
134 Kennedy (n 111) 141.
135 Ibid.
136 Ibid.
137 Ibid.
138 Ahmed (n 103).
139 Goldblatt (n 33) 360.
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262 Conceptualizing femicide as a human rights violation
The possible appearance of inequality in femicide is threefold: a fundamental
context of structural inequality is the arena for femicide; state authorities fail
to rescue women who are reported missing due to discriminatory attitudes and
stereotypes; discriminatory treatment may arise after the woman’s body is
found, or when her next of kin actually denounces the violent acts in question
or seeks assistance in investigating her case. These systemic forms of discrim-
ination should be addressed under a theory which properly covers systemic
inequality.140 Formal equality strictly compares women’s experiences with
those of men. Such a comparison poses a problem where women’s experiences
are unique to women and therefore no male comparator exists. Substantive
equality looks at the effect of an apparently neutral rule on a disadvantaged
group. As theorized by feminist scholars, substantive equality functions well
to tackle widespread violence stemming from systemic inequality.
Formal equality
Formal equality, which compares individuals in similar situations, is particu-
larly ill-suited to address structural violence against the female social group.141
Two significant objections can be raised to the use of formal equality to struc-
tural violence as it occurs in femicide.142 First of all, formal equality is indi-
vidualistic and relative in nature, unable to reach the structures of society.143
Given their long history of being second-class citizens, women’s experiences
can hardly be comparable to those of men.144 Abuses including rape and forced
abortion are often systematically tolerated by state parties, which systemize
violence against women.145 Having the standard by which women’s experi-
ence is measured, be male results in women being ‘[relegated to] a position
140 See Samantha Besson, ‘The Principle of Non-Discrimination in the Convention
on the Rights of the Child’ (2005) 13 The International Journal of Children’s Rights
433–461. See also Maria Sjöholm, Gender-Sensitive Norm Interpretation by Regional
Human Rights Law Systems (Brill 2017) 211.
141 Kirsten Anderson, ‘Violence against Women: State Responsibilities in
International Human Rights Law to Address “Harmful Masculinities”’ (2008) 26(2)
Netherlands Quarterly of Human Rights 173–197 at 222; Alice Edwards, Violence
Against Women under International Human Rights Law (Cambridge University Press
2011) 142.
142 See Alexandra Timmer, ‘Toward an Anti-Stereotyping Approach for the
European Court of Human Rights’ (2011) 11(4) Human Rights Law Review 707–738
at 711; Sandra Fredman, ‘Engendering Socio-Economic Rights’ in Anne Hellum and
Henriette Sinding Aasen (eds), Women's Human Rights: CEDAW in International,
Regional, and National Law (Cambridge University Press 2013) 224; MacKinnon (n
126) 33.
143 Fredman (n 142) 224; MacKinnon (n 126) 33.
144 MacKinnon (n 126) 33.
145 MacKinnon (n 96) 73 and 76.
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Conceptualizing femicide
of inferiority indefinitely,’ thus maintaining a hierarchy in which women
rank below men.146 Comparing women to men does not work in situations of
pervasive violence against women and girls targeting them specifically, such
as forced marriage.147 Arguably, the treatment of female protestors, who were
sexually assaulted and insulted, could be compared to similarly situated male
protestors who were not harassed in the African Commission’s Interrights
case.148 However, no suitable male comparator at risk of forced marriage could
be found in Equality Now, which led the Commission to conclude that forced
marriage by abduction was not discriminatory and not gender-based.149 Since
the formal equality approach is prone to neglect women and girls’ experiences,
it is inadequate to cover violence against the female social group.
Substantive equality
‘[T]he socially situated subjection of women’150 in femicide must be assessed
with a substantive equality approach. Substantive equality considers the social
factors which place women in a disadvantaged position and addresses the
root causes for violence by considering structural problems which facilitate
and perpetuate the domination of women and girls, such as an inadequate
state response to reports about missing women and girls.151 Fredman and
MacKinnon’s approaches to substantive equality, the transformative frame-
work and the dominance approach, are well suited to tackle the female social
group’s oppression in femicide.152 Fredman’s versatile four-dimensional sub-
stantive equality framework–– constituted of the redistributive dimension, the
recognition dimension, the transformative dimension, and the participative
dimension––operates on a horizontal level rather than in a hierarchy.153
Especially Fredman’s recognition dimension, which deals with ‘stigma, stere-
otyping, humiliation and violence on the grounds of gender’ is relevant to the
146 Edwards (n 141) 164; Fredman (n 142) 223–224.
147 MacKinnon (n 96) 74.
148 Interrights v. Egypt (n 5) paras 143–149.
149 See Equality Now v. Ethiopia (n 42) paras 145–146. See also Sjöholm (n 140)
339.
150 MacKinnon (n 126) 36–37.
151 See Fredman (n 3) 712 and 728; Fredman (n 142) 223–224.
152 A vivid debate between these scholars touched on the issue of substantive
equality. MacKinnon argued that Fredman’s framework is impractical and merely
theoretical. Fredman responded that her framework is well suited to address struc-
tural inequality on all levels and that certain common parameters between her and
MacKinnon’s approach to discrimination are present. See the debate in: Fredman (n 3);
Catherine MacKinnon, ‘Substantive Equality Revisited: A reply to Sandra Fredman’
(2016) 14(3) International Journal of Constitutional Law 739–746.
153 Fredman (n 3) 728.
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264 Conceptualizing femicide as a human rights violation
impunity in femicide.154 A hierarchical approach like MacKinnon’s dominance
approach, where violence is used to relegate women to an inferior social status,
ideally captures the substantive equality at stake in femicide.155 The social
status awarded to women because they belong to the female gender, ‘[is one]
in which [women] can be used and abused and trivialized and humiliated and
bought and sold and passed around and patted on the head and put in place
and told to smile so that [they] look as though [they are] enjoying it all.’156
The gender hierarchy envisioned by MacKinnon includes ‘the systemic failure
to protect women in their homes from violence by men with whom they are
close.’157 At this stage, it is necessary to point out that women and girls are
oppressed in many ways depending on cultures which are not comparable to
the white-feminist experience.158
Substantive equality is also reflected in human rights instruments. CEDAW
is an asymmetric instrument which envisions special protection for women and
girls and understands discrimination in substantive terms. Article 1 CEDAW
operates on a horizontal level, looking at how women are excluded based on
sex.159 At the regional level, discrimination provisions are crafted in relatively
vague terms and could principally encompass substantive equality approach-
es.160 Human rights bodies usually allow for both formal and substantive
approaches to identify gender-based harm. In relation to domestic violence, the
ECtHR still seeks a comparator in a similar situation.161 Incorporating the dom-
inance approach, the IACtHR indicated that ‘every situation where a group is
treated superior, and thus is awarded privileges, or vice-versa when a group
is deemed inferior and consequently treated with hostility […] discriminates
154 Fredman (n 142) 223–224 and 227; ibid., 749.
155 Catherine MacKinnon, ‘Substantive Equality: A Perspective’ (2011) 2 Minnesota
Law Review 1–27 at 12; MacKinnon (n 126) 36–37.
156 MacKinnon (n 126) 36–37.
157 MacKinnon (n 155) 13.
158 Sylvia Tamale, Decolonialization and Afro-Feminism (Daraja Press 2020) 69.
159 Equality Now v. Ethiopia (n 42) para. 144. On the asymmetric approach of dis-
crimination under CEDAW, see Rikki Holmaat, ‘The CEDAW: A Holistic Approach
to Women’s Equality and Freedom’ in Anne Hellum and Henriette Sinding Aasen
(eds), Women’s Human Rights: CEDAW in International, Regional, and National
Law (Cambridge University Press 2013) 99. The CEDAW Committee has made clear
that CEDAW interprets discrimination broadly to include both formal and substan-
tive equality. See CEDAW, General Recommendation No 28, paras. 9, 16, 20 and 24;
Edwards (n 141) 161.
160 Art. 14 ECHR; Art. 1(1) ACHR. See also Art. 24 ACHR; Arts 2–3 African
Charter (the latter equality before the law).
161 Talpis v. Italy (n 47) para. 145.
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Conceptualizing femicide
against the group.’162 The IACtHR consistently evokes the Preamble of the
Belém do Pará Convention to assert that violence against women is entrenched
in unequal power relations.163 This approach compellingly captures the inferior
position of women in femicide, as it recognizes the group-related aspect of
discrimination.
Specialized instruments on violence against the female social group appear
to embody MacKinnon’s approach. The 1993 UN Declaration on Violence
against Women and the 1995 Beijing Platform view violence against women
as ‘a manifestation of the historically unequal power relations between men
and women, which have led to domination over and discrimination against
women by men and to the prevention of women’s full advancement.’164
They conjoin the theoretical concept of subordinate social status with legal
approaches to discrimination law relevant to femicide. Even though they are
soft law declarations and therefore not legally binding, regional human rights
instruments similarly mention ‘historically unequal power relations between
women and men’ as causes of VAWG.165 The substantive equality in such
instruments and treaties can thus be interpreted to cover the substantive dis-
criminatory component in femicide.166
IMPUNITY
A defining aspect of femicide is the impunity with which crimes against
women and girls are treated. I argue for a broad understanding of access to
justice in the context of femicide, in the sense that victims or their next of kin
are regularly unable to obtain help from the State, meaning that the perpetrator
is not brought to justice. This could be the case when a perpetrator commits
suicide after he has killed a woman and/or her children. In other cases, crimes
committed by perpetrators are never investigated by the authorities. In any
form, impunity translates into violations of the victim’s access to justice rights
as national authorities may not respond after a woman is reported missing,
failing to save her or even to conduct an investigation while she is still
162 E.g., Velásquez Paiz v. Guatemala (n 41) para. 173 [unofficial translation by the
author].
163 E.g., ibid., para. 175.
164 Bejing Platform for Action (n 15) para. 118. See also Preamble DEVAW.
165 Preamble Belém do Pará Convention; Preamble Istanbul Convention. The
Maputo Protocol does not mention unequal power relations, perhaps because it relates
to women’s rights more generally.
166 See Vanessa Munro, ‘Violence Against Women, “Victimhood” and the (Neo)
liberal State’ in Margeret Davies and Vanessa Munro (eds), The Ashgate Research
Companion to Feminist Legal Theory (Ashgate 2013) 239.
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266 Conceptualizing femicide as a human rights violation
alive.167 Passiveness in domestic violence cases, where police remain inactive
or attempt to reconcile perpetrators and victims, as well as state authorities’
failure to rescue enslaved Yazidi women and girls in Syria or abducted girls
in Nigeria, also result in impunity.168 Such inaction in response to violence
based on sexist views sends the message to society and potential perpetrators
that they can commit violence with impunity and that there is ‘a clear absence
of democratic rule of law in relation to women.’169 It also discourages women
from approaching the judicial system for help.170 Finally, impunity creates the
widespread context in which femicidal violence occurs,171 as it ‘stems from
the inaction, insufficiency, or complicity of state institutions with gender
inequality.’172 To end impunity for femicide at the domestic level, States must
be held responsible for failing to act in the face of violence against the female
social group.
OUTLOOK: THE CONCEPT OF FEMICIDE IN
PRACTICE
Attacks against female social groups receive increasing attention all over the
world.173 In the wake of #MeToo, #NiUnaMenos, and similar campaigns, the
women’s rights movement can use this momentum to create the political will
necessary to codify femicide. In the following, I discuss three possible avenues
for the proposed femicide concept to work in practice. A first possibility and
ideal answer to femicide is the enactment of a specialized multilateral treaty on
femicide, inspired by the Genocide Convention in its architecture. A treaty on
femicide appears justified due to its severity and its consequences for humanity
167 Cházaro et al. (n 20) 104–105.
168 See Bring Back our Girls Campaign, https:// bringbackourgirls .ng/ . E.g., Volodina
v. Russia (n 4) para. 91; Opuz v. Turkey (n 4) paras 69–70. See Mikhail (n 121).
169 Lagarde y de los Rios (n 10) xxi.
170 See Gladys Espinoza Gonzáles v. Peru, Preliminary Objections, Merits,
Reparations, and Costs, Inter-American Court of Human Rights Serie C No 289 (20
November 2014), para. 280.
171 Segato (n 133) 79.
172 Lagarde y de los Rios (n 10) xxi.
173 Sarkin (n 2) 2–3; In September 2019, South Africa experienced one of its dead-
liest months for women. Robin-Lee Francke, ‘Thousands Protest in South Africa over
rising Violence against Women’ The Guardian (5 September 2019), www .theguardian
.com/ world/ 2019/ sep/ 05/ thousands -protest -in -south -africa -over -rising -violence
-against -women. See also Amnesty International, ‘Switzerland: One in five women is
a victim of sexual violence’ (21 May 2019), www .amnesty .org/ en/ latest/ news/ 2019/
05/ switzerland -one -in -five -women -is -a -victim -of -sexual -violence/ ; Charlotte Alter,
‘Someone is Finally Starting to Count “Femicides”’ TIME (18 February 2018), https://
time .com/ 3670126/ femicides -turkey -women -murders/ .
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Conceptualizing femicide
similar to efforts to establish a treaty on crimes against humanity.174 Another
possibility is a universal treaty on VAWG, including a provision on the femi-
cide concept. Such a treaty effort is currently being lobbied internationally,
spearheaded by the Every Woman Treaty Coalition.175 Similarly, regional
women’s rights instruments could be amended to include a provision on femi-
cide.176 Finally, until a treaty is enacted, the most straightforward approach to
femicide would be for human rights bodies to apply and reinterpret existing
human rights law. They could view aspects of femicide through the feminist
lens when they apply the human rights framework directly. Some limitations to
the practical application of the framework exist in the sense that human rights
bodies must be aware of the framework at their disposal and identify relevant
provisions in specialized regional treaties from a feminist perspective.177
With the present work, I hope to make a valuable contribution to this effect.
Arguably, the direct application of treaty provisions would be challenging in
some areas, where human rights bodies do not have jurisdiction over regional
women’s rights treaties. The CEDAW provides an interim answer to this issue.
Its definition of gender-based violence can serve as a catch-all provision for
undefined acts of femicide. Human rights bodies may rely on international
criminal courts’ case law, for example, to define the widespread contextual
element and rape in line with Akayesu.178
The application of the femicide concept will face challenges. Little political
will to apply this concept may be present where States condone widespread
violence against women and girls. At the same time, some States may be more
proactive as femicide impacts on migration flows and economy. Femicide
has caused women from Honduras, Guatemala, Ethiopia, and other countries
174 See Madaline George, ‘Prospects for a Convention on the Prevention and
Punishment of Crimes against Humanity’ OpinioJuris (8 October 2019), http://
opiniojuris .org/ 2019/ 10/ 08/ prospects -for -a -convention -on -the -prevention -and
-punishment -of -crimes -against -humanity/ .
175 In 2019, the coalition—comprised of female activists, lawyers, and academ-
ics from around the world—created a core platform for a proposed treaty on VAWG
of all ages. EveryWomanTreaty, https:// everywoman .org/ . A personal disclosure: the
author was involved in drafting a core platform on VAWG under the leadership of the
EveryWomanTreaty coalition.
176 Art. 19 Belém do Pará Convention allows States to propose amendments of the
Convention.
177 Daniela Nadji, ‘“Bridging the Divide:” An Interview with Professor Rashida
Manjoo, UN Special Rapporteur on Violence Against Women’ (2015) 23 Feminist
Legal Studies 329–347 at 343.
178 See e.g., M.C. v. Bulgaria (n 118) where the ECtHR relied on Kunarac (n 65)
paras 104–105, fns 160 and 205.
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268 Conceptualizing femicide as a human rights violation
to evade FGM or forced marriage by fleeing and seeking asylum abroad.179
States inundated with asylum seekers may embrace the femicide concept and
either support the States of origin in combating femicide, or bring inter-state
complaints before regional human rights bodies to curb asylum influx, since
women and girls may be able to claim asylum on the basis of being part of a
‘particular social group.’180
179 See US Department of Justice, Executive Office for Immigration Review,
Written Decision of the Immigration Court, 13 April 2009 (merits case file, volume
XIII) (relating to the asylum claim of the Ramos Monárrez family, the relatives of
one of the disappeared victims in the Cotton Field Case [n 10]); Swiss Asylum Law
Commission, Case LCH/VEM, 9 October 2006 (concerning the repeated rapes and
abduction for purposes of forced marriage of an Ethiopian girl who subsequently
sought asylum in Switzerland).
180 UNHCR Guidelines; Art. 45(1) ACHR; Arts 47–54 African Charter; Art. 24
ECHR. For the modalities of inter-state complaint procedures, see Scott Leckie,
‘The Inter-State Complaint Procedure in International Human Rights Law: Hopeful
Prospects or Wishful Thinking?’ (1988) 10(2) Human Rights Quarterly 249–303.
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269
10. No more impunity: Femicide and state
responsibility
INTRODUCTION
As the previous chapters have revealed, acts of femicide, such as domestic
violence, are mainly committed by private perpetrators in the private sphere.
To determine state responsibility for acts committed by non-state actors,
human rights bodies apply the Osman test, originally developed with respect
to the right to life in the case law of the European Court of Human Right
(ECtHR).1 The test requires that States knew or ought to have known of a real
and immediate risk of violence against women and girls, and that they failed
to take adequate preventive measures to avert that risk. Femicidal violence
often encounters impunity under the current interpretation of the Osman test
for two reasons. Firstly, Osman does not primarily envision collective risks.
It was devised for an individual threat,2 with its target being described by the
ECtHR as ‘individuals identifiable in advance.’3 Secondly, although the Court
has described domestic violence as ‘systemic,’ the ECtHR seems to neglect
this widespread context in its discussion on state responsibility for domestic
violence.4 A concerning double-standard exists as to what extent human rights
bodies apply the Osman test to endangered groups: On the one hand, they
have recognized state responsibility for contexts which endanger the lives
or safety of a specific group collectively––such as journalists, villagers, and
racial groups–– because of the presence of historical or other tensions; On the
1 See European Court of Human Rights (ECtHR), Osman v. UK, App No 23452/94
(28 October 1998), para. 116; General Recommendation No 28, para. 13. See also
Velasquez Rodríguez v. Honduras, Merits, Reparations, and Costs, Inter-American
Court of Human Rights Series C No 4 (29 July 1988), para. 172; Jeremy Sarkin,
‘A Methodology to Ensure that States Adequately Apply Due Diligence Standards
and Processes to Significantly Impact Levels of Violence Against Women Around the
World’ (2018) 40(1) Human Rights Quarterly 1–36.
2 Osman v. UK (n 1) para. 116; General Recommendation No 28, para. 13.
3 ECtHR, Mastromatteo v Italy, App No 37703/97 (24 October 2002), para. 69.
4 ECtHR, Talpis v. Italy, App No 41237/14 (2 March 2017), paras 101, 107-108
and 145.
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270 Conceptualizing femicide as a human rights violation
other hand, human rights bodies have not applied the test in the same way to
collective threats to the female social group.5 For an individual risk to arise
for endangered female groups, human rights bodies insist that the victims
or their family members must notify and warn the state authorities about
imminent threats.6 Such prior individualized fears or harassment which would
allow a woman to notify State authorities, are either uncommon in contexts
of widespread violence or concern daily sexual harassment. For example,
a woman in Ciudad Juarez may not know herself that she will be abducted the
next day, and a girl in Albania may be unaware that she will be a victim of an
acid attack. The Osman test should be reinterpreted to hold States to the same
standard for femicide as for other types of violence. The existence of a pattern
of widespread violence against the female social group, evidenced by reports
and statistics, should suffice to prove States’ knowledge about widespread vio-
lence against the female group. Furthermore, the risk in femicide ought to be
considered real and immediate, since acts of femicide are both continuous (and
can materialize at any time)7 and widespread (thus threatening any woman or
girl belonging to the targeted female social group). This is especially so where
States have contributed to the risk by failing to punish perpetrators, thereby
creating a widespread context of violence against women and girls. Once the
risk exists, States must take urgent legislative, policy, and budgetary measures
to stop the violent practices endangering women and girls.
‘OMISSION’ AS WRONGFUL CONDUCT
State responsibility arises for both unlawful actions and omissions imputable
to a State. For example, when guards and other state officials subject female
detainees to forced nudity, or when they force women and girls to undergo
gynecological exams, state responsibility is engaged on account of state
5 Ibid., para. 101; ECtHR, Opuz v. Turkey, App No 33401/02 (9 March 2009)
(domestic violence); ECtHR, Aydin v. Turkey, App No 57/1996/676/866 (25 September
1997), paras 129–130.
6 The ECtHR and the CEDAW Committee now require States to intervene and
prevent any further violence when a woman calls the police because her husband hits
her. E.g., Talpis v. Italy (n 4) Goekce et al. v. Austria, Communication No 25/2005,
CEDAW/C/39/D/5/2005, 6 August 2007. Similarly, the IACtHR held that, by inform-
ing the police, the relatives of an abducted woman had complied with their obligations
under the Osman test to inform the State of violence committed by a third party. López
Soto v. Venezuela, Merits, Reparations, and Costs, Inter-American Court of Human
Rights Series C No 36 (26 September 2018).
7 ECtHR, Kurt v. Austria [Grand Chamber, GC], App No 62903/15 (15 June
2021), para. 175.
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271
No more impunity
actions.8 In line with historical and cultural practices, States have turned
a blind eye to private persons committing acts of femicide;9 they must be held
responsible for their passivity in the face of femicide, with the burden of proof
being lowered where States have created the conditions for violence by failing
to punish perpetrators. The omission is the relevant wrongful state conduct in
femicide, behavior which engages state responsibility akin to its counterpart of
state action, as exhibited by the French term ‘fait,’ which reflects that active as
well as passive conduct can trigger state responsibility.10 As the Draft Articles
on State Responsibility (Draft Articles)’11 note, ‘[c]ases in which the interna-
tional responsibility of a State has been invoked on the basis of an omission
are at least as numerous as those based on positive acts, and no difference in
principle exists between the two.’12 The nexus between the State which fails to
act in a context of femicide and the female genital mutilation (FGM) of a girl
committed in this context is more direct than the one achieved through acqui-
escence. Concepts emerging in the state responsibility doctrine, such as com-
plicity, a notion used in relation to genocide and originating in (international)
criminal law, and acquiescence, comprising both state action and inaction in
relation to enforced disappearance imply that the State partially contributes to
a private actor’s conduct and thus to some extent shares its responsibility with
the non-state actor who committed the act. State responsibility by omission
means that the State itself fails to respond in a situation where it should have
helped women and girls who are harmed.13
8 Celina Romany, ‘Women as Aliens: A Feminist Critique of the Public/Private
Distinction in International Human Rights Law’ (1993) 6 Harvard Human Rights
Journal 87–125 at 90 and 98–100. See Carin Benninger-Budel, Due Diligence and Its
Application to Protect Women from Violence (Brill 2008) 11.
9 Rosa Ehrenreich Brooks, ‘Feminism and International Law: An Opportunity for
Transformation’ (2002) 14 Yale Journal of Law and Feminism 345–361 at 349–355.
10 See Arts 1(8) and 2(4) Draft Articles (infra n 11).
11 The Draft Articles are drafted by the International Law Commission (ILC), an
expert body codifying rules on state responsibility. Art. 1(1) Draft Articles: ‘These arti-
cles seek to formulate, by way of codification and progressive development, the basic
rules of international law concerning the responsibility of States for their internationally
wrongful acts.’ Report of the International Law Commission on the Work of its 53rd
session, Draft Articles on State Responsibility (2001) UN Doc A/56/10.
12 Art. 2(4) Draft Articles.
13 For complicity as a notion based on international criminal law, see Marko
Milanovic, ‘State Responsibility for Genocide’ (2006) 17(3) The European Journal of
International Law 553–604. For the concept of acquiescence, see Marthe Lot Vermeulen,
Enforced Disappearance Determining State Responsibility under the International
Convention for the Protection of All Persons from Enforced Disappearance (Intersentia
2012) 425. For a discussion on complicity, see Bonita Meyersfeld, Domestic Violence
and International Law (Hart Publishing 2011) 206.
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272 Conceptualizing femicide as a human rights violation
The omission must be internationally wrongful to engage state responsibility
and such conduct is attributable to the State under the Draft Articles.14 Conduct
is internationally wrongful when it breaches an international obligation, i.e.,
a treaty provision or a customary norm.15 Acts of femicide in principle con-
stitute internationally wrongful acts as the human rights breached in femicide
include (1) the right to be free from gender-based violence, (2) the prohibition
of torture or the right to life, and (3) the right of access to justice/fair trial,
protected under various treaties and/or customary international law (CIL).
Various regional treaties, the Maputo Protocol, the Belém do Pará Convention,
and the Istanbul Convention, prohibit gender-based violence. The Convention
on the Elimination of Discrimination Against Women (CEDAW) Committee
even considers gender-based violence to be prohibited under CIL. Even though
state practice may only be developing with respect to some, but not other acts
of violence against women, the argument can be made that a regional CIL
norm exists.16 Any further doubts as to whether acts of femicide fall under CIL,
can be resolved by reference to their severity: acts of femicide often breach
the prohibition of torture.17 Even though States may not have an intent to harm
women and girls, the human rights violations inherent in femicide constitute
international wrongful conduct.18
ATTRIBUTION
Conduct of private persons must not only be ‘wrongful’ in accordance with
international legal standards, it must also be attributable to the State for it to
incur state responsibility.19 Only where States fail to prevent violence com-
mitted by private perpetrators, such conduct can be attributed to the State.
The International Court of Justice (ICJ) carved out the criteria applicable to
14 Art. 1 Draft Articles.
15 Art. 2 Draft Articles.
16 Customary international law (CIL) denotes ‘evidence of a general practice
accepted as law.’ CIL requires 1) opinio juris and 2) state practice. Opinio juris is likely
not the problem at issue, considering the plethora of international instruments condemn-
ing violence against women in both human rights law and international criminal law.
For regional CIL, see Conclusion 16 of the CIL, International Law Commission, Draft
Conclusions on Identification of Customary International Law, with Commentaries
A/73/10 (2018).
17 Benninger-Budel (n 8) 3.
18 Art. 2(10) Draft Articles. See Maame Efua Addazi-Koom ‘“He beat me, and the
state did nothing about it:” An African perspective on the Due Diligence Standard and
State Responsibility for Domestic Violence in International Law ’ (2019) 19 African
Human Rights Law Journal 624–652.
19 Art. 2(12) Draft Articles.
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273
No more impunity
determine when omissions, contrary to an international treaty or customary
obligation, are attributable to the State in United States Diplomatic and
Consular Staff v. Tehran (US v. Iran). This standard was further developed by
the Inter-American Court of Human Rights (IACtHR) in Velásquez Rodriguez
v. Honduras with the due diligence standard. It was refined in Osman v. United
Kingdom by the ECtHR, triggering state responsibility for lack of prevention
of private violence. Gender-biased omissions by the police and other state
authorities must likewise attract state responsibility.
Militia Attack on US Embassy
The ICJ attributed state responsibility for omission in the US v. Iran case,
where the Court held Iran responsible for having remained inactive during the
hostage-taking of US citizens by private persons, be they militants or students.
The ICJ’s analysis is particularly interesting for femicide as it can be trans-
posed to the case of a woman (US consular staff), who is attacked by private
actors (students) and where the State (Iran) fails to help her. In 1979, mainly
student militants attacked and occupied the US Embassy in Tehran, Iran. They
took US diplomatic and consular staff hostage and pillaged the Embassy and
consular premises.20 Since the students acted independently and were not state
agents, Iran was not responsible for direct action.21
The ICJ examined whether Iran could be held responsible for the attack on
the Embassy and the hostage-taking on the grounds of inaction. Iran did not
prevent violent acts against US diplomatic personnel despite its awareness
of the hostage situation. As the ICJ noted, such inaction was not grounded in
‘negligence or a lack of appropriate means.’22 Although the Iranian authorities
had only remained inactive, not preventing the Iranian security personnel,
responsible for protecting the Embassy from leaving, Iran’s religious leader
publicly commended the militia for its action.23 Moreover, the government
had been under an obligation to protect the Embassy based on the Vienna
Conventions of 1961 on Diplomatic Relations and of 1963 on Consular
Relations (Vienna Conventions). The ICJ found that Iran failed ‘to take any
steps either to prevent this attack [on the US Embassy] or to stop it before it
reached its completion,’ despite being aware of it.24 By failing to protect the
20 United States (US) Diplomatic and Consular Staff in Tehran (Judgment) ICJ
Reports 1980 [hereinafter US v. Iran], paras 63 and 67. For attribution by omission, see
also the Corfu Channel, Merits, Judgment, ICJ Reports 1949, paras 4 and 22–23.
21 US v. Iran, ibid., para. 58.
22 Ibid., para. 62.
23 Ibid., paras 17, 20–21 and 59.
24 Ibid., paras 62–63.
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274 Conceptualizing femicide as a human rights violation
Embassy, Iran had encouraged non-state actor violence, which engaged its
responsibility by omission.25 The ICJ’s ruling against Iran for failing to act in
the face of violence against US personnel set an important precedent regarding
state responsibility by omission.
Velásquez Rodríguez’s Kidnapping
In 1981, the University student and activist Manfredo Velásquez Rodríguez
was kidnapped in a parking lot in Tegucigalpa, Honduras. He was likely
interrogated and tortured on state premises in connection with his political
activities contrary to the interests of the regime.26 His abductors, presumably
state agents, remained unidentified and wore civilian clothing.27 Mr Velásquez
has remained missing since then.28 The IACtHR established that around 150
persons had disappeared in Honduras between 1981 and 1984, at the time
Mr Velásquez went missing.29 The IACtHR noted that Mr Velásquez had
disappeared in a widespread context of disappearances ‘at the hands of or with
the acquiescence of those officials,’ and that the Honduran government had
failed to prevent human rights violations against him.30 Because some doubt
remained as to whether Mr Velásquez was abducted by state officials in dis-
guise or other actors, the Court examined Honduras’ responsibility for human
rights violations committed by unidentified actors.31
The IACtHR argued that, under Article 1 American Convention on Human
Rights (ACHR), States have a duty to ensure that every person can freely
exercise their rights under their jurisdiction, i.e., to create the conditions for
individuals to be protected from human rights abuses.32 Velásquez Rodríguez
abandons the idea that the State should not intervene in individuals’ freedom,
shifting to the premise that States also have a guarantor function, that they have
a duty to protect people from human rights violations. This requires that States
address human rights abuses committed by non-state actors33 as:
[a]n illegal act which violates human rights and which is initially not directly imput-
able to a state […] can lead to international responsibility of the State, not because
25 Ibid., paras 62–63, 68 and 93.
26 Ibid., paras 3, 107 and 147.
27 Ibid., paras 3 and 107.
28 Ibid., para. 10.
29 Ibid., para. 147.
30 Ibid., para. 148.
31 Ibid., paras 147(b) and (ii), 148 and 169–172.
32 Ibid., para. 166.
33 Benninger-Budel (n 8) 11. See also Victor Abramovich, ‘Responsabilidad
Estatal por Violencia de Género: Comentarios Sobre el Caso “Campo Algodonero”
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No more impunity
of the act itself, but because of the lack of due diligence to prevent the violation or
to respond to it as required by the [ACHR].34
The Court at least implied that widespread contexts, such as ‘a practice of
disappearances […] between 1981 and 1984 [in which] the Government of
Honduras failed to guarantee the human rights affected by that practice’ meant
that Honduras knew about the human rights violations committed. This rea-
soning could be transposed to cases where women and girls live in a context of
widespread gender-based violence.35 Adjudicating femicide cases in this way
matters as the Court did not require individuals to alert the State about threats
of soon being kidnapped in Velásquez Rodríguez. Moreover, as Honduras
failed to investigate the acts, and enforced disappearances as a serious human
rights violation, the IACtHR applied a very low burden of proof, allowing
for ‘circumstantial and presumptive evidence.’36 The Court relied on witness
testimonies, press clippings, and NGO reports, also considering ‘public and
well-known facts [of disappearances] which, as such, do not require proof.’37
The Honduran government was aware that Mr Velásquez went missing in
this pattern of enforced disappearances, but it had taken no action to prevent
violence against him.38 Velásquez Rodríguez signals that States’ awareness
of patterns of violence engages their duty to take preventive measures. The
Court may have taken this progressive route as it suspected that state officials,
military and police had kidnapped people in Honduras in the early 1980s.39 The
precedent could apply to femicide, which is characterized by state impunity
but is not presumed to be committed by state actors.
Another important contribution was the IACtHR’s call for preventive
measures. The Court stated that ‘the State has a legal duty to take reasonable
steps to prevent human rights violations’ and to identify the culprits and punish
them.40 The Court established that the preventive duty must include ‘legal,
political, administrative and cultural’ measures, cautioning however41 that ‘[i]t
is not possible to make a detailed list of all such measures since they vary with
the law and the conditions of each State Party.’42 The IACtHR thus left the
en la Corte Interamericana de Derechos Humanos’ (2010) 6 Anuario de Derechos
Humanos 167–182 at 170.
34 Velásquez Rodríguez v. Honduras (n 1) para. 172.
35 Ibid., para. 148.
36 Ibid., paras 129 and 131.
37 Ibid., para. 147.
38 Ibid.
39 Ibid., paras 147 and 147.c.
40 Ibid., para. 174.
41 Ibid.
42 Ibid., para. 175.
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276 Conceptualizing femicide as a human rights violation
preventive measures relatively undefined, with the stipulation that States must
not tolerate situations of impunity.43 Velásquez Rodríguez influenced human
rights law well beyond the Inter-American human rights system, conclusively
establishing that state responsibility is engaged for human rights violations
committed by unidentified and/or non-state actors.44 Questions about which
circumstances trigger States’ duties to prevent non-state actors from commit-
ting human rights violations were answered by the ECtHR in Osman v. United
Kingdom (UK).
Osman’s Murder
A schoolteacher had continuously harassed and intimidated 15-year-old Ahmet
Osman, his friends, and his family.45 Aware of the situation, the UK school
authorities had discussed the issue with the teacher concerned, the police
interviewed him, and a psychologist administered various assessments.46 More
than a year after making his initial threats, the teacher severely injured Ahmet
and killed his father.47 Ahmet argued before the ECtHR that the authorities
had known about the death threats but still failed to take adequate measures
to prevent violations of his and his father’s right to life.48 Although the Court
recognized that UK police officials were informed of the schoolteacher’s
disturbing behavior, the ECtHR held that the UK could not have explicitly
known that the schoolteacher would harm Ahmet or his family and posed
a life-threatening risk (i.e., a ‘real and immediate risk’) to them. Therefore, the
Court found no violation of the right to life under Article 2 of the European
Convention on Human Rights (ECHR).49
Osman established a limited set of clearly defined circumstances for holding
States responsible when they fail to prevent non-state actor human rights
violation, such as those committed against women and girls.50 The ECtHR
was careful about not opening pandora’s box so that States would not be held
responsible for every human rights violation committed in their territory by
private individuals, citing the ‘difficulties involved in policing modern socie-
ties, the unpredictability of human conduct and the operational choices which
43 Ibid., paras 176–177.
44 See e.g., African Commission, Egyptian Initiative for Personal Rights and
Interrights v. Egypt, Communication No 323/06, 1 March 2011, para. 205.
45 Osman v. UK (n 1) paras 11–12 and 14.
46 Ibid., paras 21, 27 and 42.
47 Ibid., paras 10 and 56.
48 Ibid., para. 103.
49 Ibid., paras 121–122.
50 Ibid., paras 115–116.
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277
No more impunity
must be made in terms of priorities and resources.’51 Under the Osman test,
states’ responsibility is only engaged if:
[t]he authorities knew or ought to have known at the time of the existence of a real
and immediate risk to the life of an identified individual or individuals from the
criminal acts of a third party and that they failed to take measures within the scope
of their powers which, judged reasonably, might have been expected to avoid that
risk.52
The Osman test has been upheld and endorsed by international human rights
bodies, including the African Commission, the CEDAW Committee, and the
IACtHR—also in cases concerning femicide.53
ENDING IMPUNITY FOR FEMICIDE
Overlooked, and dismissed as insignificant, many acts of femicide encounter
impunity, and therefore seemingly fall outside the purview of state responsibil-
ity.54 In the current political climate—with the #MeToo movement and similar
campaigns—the time is ripe for human rights bodies to hold States account-
able for condoning atrocities against groups comprising women and girls.55
However, the method used to determine state responsibility, the Osman test,
is not primarily devised to apply, and has not been applied, to group-related
risks to women’s lives and integrity. Currently, human rights bodies narrowly
interpret the Osman test in relation to widespread, group-related risks against
women and girls. They only recognize harm insofar as it concerns women
and girls’ individually and do not yet hold States responsible for structural
risks such as those of systemic violence which does not individually threaten
51 Ibid., para. 116.
52 Ibid.
53 See, for enforced disappearances, Pueblo Bello v. Colombia, Preliminary
Objections, Merits, Reparations, and Costs, Inter-American Court of Human Rights
Series C No 140 (31 January 2006), and for femicide, Veliz Franco et al. v. Guatemala,
Preliminary Objections, Merits, Reparations, and Costs, Inter-American Court of
Human Rights Series C No 277 (19 May 2014); González et al. v. Mexico (Cotton Field
Case), Preliminary Objection, Merits, Reparations, and Costs, Inter American Court
of Human Rights Series C No 205 (16 November 2009) (femicide cases); African
Commission, Equality Now and Ethiopian Women Lawyers Association v. Federal
Republic of Ethiopia, Communication No. 341/2007, 25 February 2016, para. 127.
54 Sarkin (n 1) 10.
55 Farnush Ghadery, ‘#Metoo—has the “Sisterhood” Finally become Global or Just
Another Product of Neoliberal Feminism?’ (2019) 10(2) Transnational Legal Theory
1–23, see Abramovich (n 33) 169.
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278 Conceptualizing femicide as a human rights violation
women and girls, even if they do consider the systemic context.56 Accordingly,
they remain ambiguous, at times uncertain, about whether acts of femicide
are widespread and whether the risk situation threatens women and girls col-
lectively. Akin to its application to other groups, the Osman test can be inter-
preted to cover collective risks against women and girls, which would make
it easier for human rights bodies to adjudicate the ever-so-often unreported
threats of femicide.
Femicide: Real and Immediate Risk
The group-related risks in femicide emerge from a climate of impunity,
a context which creates the conditions for widespread violence against women
and girls. For the Osman test to become operable for crimes committed against
women and girls, its key notions of ‘real and immediate risk’ must be inter-
preted in line with the nature of the slow-death risk in femicide. The terms
real and immediate risk are ambiguous as human rights bodies rarely separate
the two elements, and even use them interchangeably.57 In the literature, the
term real refers to ‘a significant likelihood that the risk will materialize unless
preventative measures are taken,’ and a risk is immediate when ‘the result of
the risk must be expected to materialize at any time.’58 Ebert and Sijniensky
suggest to drop the immediacy requirement, and simply to retain the real aspect
of the Osman test to describe the risk, as States would only need to take pre-
ventive ‘measures of medium urgency’ to avert it.59 However, whether medium
urgency could forestall widespread risk situations is questionable considering
that preventive measures must be expedient to reduce a life-threatening risk.
This standard may also lead to uncertainty about the scope of preventive
measures of medium urgency. As the ECtHR’s Grand Chamber clarified in
Kurt v. Austria, the term ‘immediacy’ in the context of domestic violence must
take account of the consecutive cycles of domestic violence, and that a record
of domestic violence points to its immediacy.60 At the same time, the Court
referred to Article 52 of the Istanbul Convention, and its Explanatory Report,
56 E.g., See Talpis v. Italy (n 4) paras 101, 107-108 and 145; ECtHR, Volodina v.
Russia, App No 41261/17 (9 July 2019).
57 Franz Christian Ebert and Romina Sijniensky, ‘Preventing Violations of the
Right to Life in the European and the Inter-American Human Rights Systems: From the
Osman Test to a Coherent Doctrine on Risk Prevention’ (2015) 15(2) Human Rights
Law Review 343–368 at 258; Osman v. UK (n 1) para. 121. See e.g., Meyersfeld (n 13)
215.
58 See Ebert and Sijniensky, ibid., 358–359.
59 Ibid., 366.
60 Kurt v. Austria [GC] (n 7) para. 175.
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279
No more impunity
which notes that ‘harm is imminent or has already materialized and is likely to
happen again.’61
As such, the risk in femicide can be classified as being immediate.
Considering the ongoing nature of human rights violation in femicide––e.g.,
when a girl is abducted and forcibly married by Boko Haram, she may suffer
from its consequences over many years––the risk of more violence may
materialize at any time. Predictably, other women and girls abducted under the
same circumstances are likely subjected to the same situation. Thus, a pattern
of violence in femicide puts any woman who belongs to the targeted group
at a real risk of being harmed. Finally, when States contribute to the real and
immediate risk by condoning a climate of impunity for acts of femicide, evi-
dentiary standards should be lowered. Accordingly, it would be enough for the
victim to show that a pattern of violence existed of which the violence against
her was part. She would no longer be required to show that she had previously
alerted the authorities about an individual threat.
Group-related risks
Group-related risks are already recognized by human rights bodies in cases
relating to social groups more generally, precedents on which a recognition
of risks for female groups could build. In Mastromatteo v. Italy, the ECtHR
established in this regard that society in general was at risk from a convict
who had absconded and killed someone while on leave from prison and that
the State must protect the public from threats deriving from violent convicts
on day leave.62 Similarly, the Court appeared to consider contexts of violence
sufficiently immediate in enforced disappearances cases against social groups,
especially concerning political activities. In Avsar v. Turkey, the Court care-
fully examined the context which endangered civilians in South-East Turkey:
[Si]nce approximately 1985, serious disturbances have occurred in the south-east
of Turkey, involving armed conflict between the security forces and the members
of the PKK. By 1996, the violence had claimed, according to the Government, the
lives of 4,036 civilians and 3,884 members of the security forces. Since 1987, ten of
the eleven provinces of south-eastern Turkey have been subject to emergency rule.63
The context which endangers the lives or safety of a specific population can
be described both in terms of increasing (historical) tensions and the number
of victims. In Avsar, the ECtHR identified the targeted population broadly
61 Ibid.
62 Mastromatteo v. Italy (n 3) para. 69. See also ECtHR, Choreftakis and Choreftaki
v. Greece, App No 46846/08 (17 January 2012), paras 48 and 50.
63 ECtHR, Avsar v. Turkey, App No 25657/94 (10 July 2001), para. 285.
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280 Conceptualizing femicide as a human rights violation
as civilians.64 In Kilic v. Turkey, the Court identified the targeted population
as journalists and found the structural violence against them in south-east
Turkey to present an immediate risk in relation to a Kurdish journalist who
was attacked by the police in a context of counter-terrorist violence against the
PKK.65 Although no specific threats had been recorded against Mr Kilic, the
Court considered that he ‘belonged to a category of persons who ran a particu-
lar risk of falling victim to a disappearance or murder’ and that ‘his risk could
in the circumstances [the violence against Kurdish journalists in south-east
Turkey] be regarded as real and immediate.’66 Hence, the widespread context
of violence against an identifiable group plays a significant role in the real and
immediate risk, and in attributing state responsibility.67
Going one step further, the IACtHR considered the group-related threats
to specific communities to meet the Osman test.68 In Pueblo Bello, private
groups invaded a village and abducted and presumably killed the male villag-
ers.69 The state authorities, i.e., the Colombian military, assisted the guerrilla
fighters by letting them pass through military checkpoints with the abducted
men. Colombia had encouraged the creation of self-defense groups in the
first place, thereby contributing to the risk for the villagers.70 The IACtHR
held that Colombian authorities were evidently aware of the attack on Pueblo
Bello village, and that the State had failed to prevent the risk of individuals
being subjected to human rights abuses.71 Hence, the Court recognized that the
Osman test applies beyond an individual threat to a social group collectively
at risk of enforced disappearance.72 In Wallace de Almeida v. Brazil, the Court
considered young Afro-descendant men ‘an especially vulnerable social group
due to its racial and social condition,’ i.e., its historic subordination and the
prevalence of police violence against Afro-descendant youth.73 Accordingly,
the Court held that the extrajudicial killing of the young Afro-descendant
64 Ibid.
65 ECtHR, Kilic v. Turkey, App No 22492/93 (28 March 2000), paras 66–68.
66 Ibid., para. 66.
67 Vermeulen (n 13) 408.
68 On indigenous groups, see Sawhoyamaxa Indigenous Community v. Paraguay,
Preliminary Objections, Merits, Reparations, and Costs, Inter-American Court of
Human Rights Series C No 140 (29 March 2006).
69 Pueblo Bello v. Colombia (n 53) paras 95.25–44.
70 Ibid., paras 95.36–37 and 138.
71 Ibid., paras 138–140.
72 Ibid., para. 126.
73 Wallace de Almeida v. Brazil (20 March 2009) Case 12.440, Report No 26/09,
para. 146.
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281
No more impunity
Wallace de Almeida in the outskirts of Rio de Janeiro triggered Brazil’s
responsibility for violations vis-à-vis the social group.74
The case law reveals that the contextual element—i.e., widespread violence,
historical discrimination, military presence, and general unrest—is an essential
factor in considering the group-related risk in enforced disappearances. Two
issues must be highlighted. First, the above cases predominantly concern men:
male villagers in Pueblo Bello, Afro-descent male adolescents in Brazil, and
presumably male journalists in Turkey. Furthermore, in Pueblo Bello, a close
link is present between the State and the perpetrators, where the former facili-
tated the creation of armed groups and their passage through checkpoints. This
may have been a factor in human rights bodies’ readiness to establish state
responsibility by inaction through structural risks. The Osman test peculiarly,
does not appear to extend to violence against the female social group in similar
circumstances.
Widespread risks
Widespread risks against female groups can only be covered by the Osman
test when the group is clearly delimited (see Chapter 9). The IACtHR identi-
fied female social groups and the dangerous situation for women and girls in
Cotton Field, Veliz Franco, and Velásquez Paiz. However, the Court held that
the State could not have known that the women themselves were in a wide-
spread risk situation by virtue of belonging to the targeted social group.75
The IACtHR’s reasoning is inconsistent, as it finds no state responsibility for
structural risks of femicide, but still discusses preventive measures in respect
of the widespread context of violence.76 While one explanation for its discus-
sion of preventive measures vis-à-vis structural risks may lie in its relation
to the individual risk (for which it engaged state responsibility), this fails to
convince since the Court also discusses preventive measures with regard to the
individual risk.77 The IACtHR missed an opportunity to hold States responsi-
ble for widespread violence against women and girls (VAWG). This suggests
that the Court either views the structural risk as second-class, or it encountered
difficulties in pinning down the nature and context of widespread violence.
74 Ibid.
75 Cotton Field (n 53) para. 282; Velásquez Paiz v. Guatemala, Preliminary
Objections, Merits, Reparations, and Costs, Inter-American Court of Human Rights
Series C No 307 (19 November 2015), para. 120.
76 Velásquez Paiz v. Guatemala, ibid.
77 E.g., Cotton Field (n 53) para. 286.
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282 Conceptualizing femicide as a human rights violation
The African Commission has been most vocal about widespread risks
against female social groups. As mentioned in Equality Now:
the Respondent State had not been prosecuting perpetrators of abduction and rape.
Had it been doing so, the ripple effect of arrests and prosecution of perpetrators
could have long operated as an effective deterrent as it did when [the girl]’s abductor
was arrested the first instance.78
The Commission acknowledged that Ethiopia contributed to the creation of
the risk of forced marriage by abduction by failing to punish perpetrators. The
widespread risk affected the young female population in a province where
‘girls were under the continuing threat of being abducted, raped and forcibly
married in the area where the practice was rampant.’79 This receptivity to
group-related human rights violations may be due to the African human rights
systems’ espousal of collective human rights violations evident from its focus
on human and peoples’ rights. Accordingly, the Commission found that forced
marriage by abduction constituted a group-related threat to girls in the region
where the applicant lived,80 the widespread practice of forced marriage putting
all similarly situated Ethiopian girls in harm’s way.81 Thus, some precedents
exist which recognize widespread risks to female social groups.
Recurring risks
That the human rights violations in femicide are recurring in nature, is recog-
nized by some human rights bodies.82 Femicide is characterized by a pattern
of violence, creating ongoing risks, which should be qualified as serious and
‘immediate’ under the Osman test.83 Femicidal harm does not necessarily
follow a predictable pattern, a timeline according to which violence mate-
rializes. As Manjoo stated, ‘[w]omen subjected to continuous violence and
living under conditions of gender-based discrimination and threat are always
in fear of execution.’84 In Talpis, the ECtHR recognized that domestic violence
committed over a period of more than a year, on account of which Ms Talpis’s
son was eventually killed when he tried to intervene to protect his mother,
created a situation of a real and immediate risk to Ms Talpis and her son’s
78 Equality Now v. Ethiopia (n 53) para. 129.
79 Ibid., para. 126.
80 Ibid.
81 Swiss Asylum Law Commission, Case LCH/VEM, 9 October 2006.
82 See, most recently, Kurt v. Austria [GC] (n 7) para. 175.
83 Ebert and Sijniensky (n 57) 358–359.
84 UNGA, ‘Report of the Special Rapporteur on Violence Against Women, its
Causes and Consequences’ (16 May 2012) UN Doc A/HRC/20/16/Add., para. 31.
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283
No more impunity
right to life.85 The authorities had remained inactive regarding a domestic
violence situation, thereby ‘creating a situation of impunity conducive to
the recurrence of [domestic violence].’86 The Court placed particular value
on the series of violent acts which constitute, and the particular context of,
domestic violence.87 The Grand Chamber confirmed this in Kurt v. Austria,
where it considered ‘an increase in frequency, intensity and danger over time’
as characteristics of domestic violence.88 The Latin American Model Protocol
lays down that femicidal violence is ‘continuous and sustained over time.’89 In
the same vein, the IACtHR recognized in López Soto that a reported abduction
automatically poses a real and immediate risk.90 As human rights violations
that are committed over time and may leave lifelong wounds, acts of femicide
inevitably constitute a real and immediate risk to the victims’ rights.
Crucially, femicide cases may target a victim’s next of kin, such as their
parents, children, and other loved ones in order to harm the woman. In this
sense, those close to the targeted woman must be protected from recurring
risks. For example, the CEDAW Committee found that a child was killed
‘[in a] context of domestic violence which continued for several years.’91 The
ECtHR’s landmark case on domestic violence, Opuz v. Tukey, also concerned
violence committed not only against the applicant herself, but also against
her mother who was eventually killed by the perpetrator.92 Therefore, the risk
assessments in femicide must consider the recurring dynamics of violence in
their social contexts.
To make it more responsive to harm to women and girls, Judge Pinto de
Albuquerque of the ECtHR has proposed that the Osman test be amended, and
the immediacy requirement expanded to include ongoing risks.93 Albuquerque’s
‘present (but not yet imminent)’ risk standard conveys the message that, since
they are merely present, such risks are less serious than other non-state actor
committed violence, and less urgent as a result. However, acts of femicide are
85 Talpis v. Italy (n 4) paras 107–108.
86 Ibid., para. 117.
87 Ibid., para. 122.
88 Kurt v. Austria [GC] (n 7) para. 175.
89 UN Entity for Gender Equality and the Empowerment of Women, Latin
American Model Protocol for the Investigation of Gender-related Killings of Women
(Femicide/Feminicide) (2004), paras 132, 238 and 248.
90 Cotton Field (n 53) para. 283; Veliz Franco v. Guatemala (n 53) paras 148–149.
91 Angela Gonzalez Carreño v. Spain, Communication No 47/2012, CEDAW/
C/58/D/47/2012, 16 July 2014, para. 9.2.
92 Opuz v. Turkey (n 5) para. 153.
93 Judge Albuquerque’s Dissent in ECtHR, Valiulienė v. Lithuania, App No
33234/07 (26 March 2013).
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284 Conceptualizing femicide as a human rights violation
severe enough to meet the real and immediate risk standard by themselves.94
The Court seemed to have accepted this in Kurt v. Austria, where it confirmed
that domestic violence constitutes a continuous risk.95 The recognition of
recurring harm as meeting the Osman test represents the first step in attributing
state responsibility for structural risks.
Continuous risks of domestic violence can be discerned based on standard-
ized risk assessment tools, which flag lethal and non-violent risks for victims,
as brought to the fore by Kurt. The following indicators point to high risks of
lethal violence: separation/break-ups, previous violence, psychological prob-
lems of the perpetrator, prior restrictive measures, addictions, unemployment,
threats to abduct or kill children and/or the victim, sexual violence, access to
firearms and suicide threats.96 A reinterpreted Osman test should require States
to rely on standardized tools, including the Spousal Assault Risk Assessment
(SARA) and the Dynamic Risk Analysis System (DyRiAs), which are scientif-
ically developed and designed for persons dealing with domestic violence risk
assessments, to delimit and prevent continuous risks in domestic violence.97
These tools can also counter implicit bias on the part of domestic authorities in
domestic violence cases, and would ensure that family members, often targeted
in femicide, as well as socio-economic and cultural factors would be included.
For other acts of femicide, such as honor-based killings, forced marriage and
FGM, similar scientifically researched standards exist, and should be applied
and invoked by human rights bodies for a full understanding and prevention of
these recurring risks.98
State Contribution
The threshold for the real and immediate risk should be lowered when States
contribute to the risk of femicide. Manjoo shed light on Moldova’s contri-
bution to the risk: ‘[D]omestic violence in particular is widespread, largely
condoned by society and does not receive appropriate recognition among
officials, society, and women themselves, thus resulting in insufficient pro-
94 See Abramovich (n 33).
95 Kurt v. Austria [GC] (n 7) para. 175; See ECtHR, Volodina v. Russia (n 56) para.
86.
96 See GREVIO’s third-party submission in Kurt v. Austria [GC], ibid. paras 140
and 167.
97 See Dyrias, https:// www .dyrias .com/ en/ module/ intimate -partners .htm;
SARA, Spousal Risk Assessment Guide, https:// downloads .mhs .com/ saRA/ SARA
_TechBrochure .pdf. All online sources were accessed 30 October 2021.
98 See, e.g., Dundee and Angus Multi-Agency Protocol for Forced Marriage, http://
www .avaw .org .uk/ Fo rcedMarria geProtocol .pdf, 25–30.
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285
No more impunity
tective infrastructure for victims of violence.’99 Hence, the State’s neglect
of violence expressed through impunity amplifies violence against women
and creates the immediate risk for the female social group to be subjected to
violence.100 Relatedly, state leaders endorsing a sexist climate where VAWG is
socially acceptable, may also contribute to the risk situation. Filipino President
Duterte is infamous for his sexist remarks on rape and sexually harassing
women. Duterte is said to have ordered soldiers to mutilate female guerrillas,
has boasted of sexual assault of a housekeeper, forced a woman to kiss him
in public, and stated that ‘rape was inevitable as long as there were beautiful
women.’101 In the IACtHR’s Atenco case, high state officials publicly asserted
that female protestors had engaged in indecent behavior and that claims that
they suffered sexual violence were untrue, even before the State authorities
had investigated the facts.102 Such misogynist political cultures, normalized or
endorsed by state leaders, may contribute to the widespread risk situation.103
State Awareness
The Osman test requires that States are aware about a risk situation for state
responsibility to arise. This means that victims or their family members must
report that they are about to be killed to create state knowledge about the
dangerous situation. However, in a context of systemic violence, the onus
should not be on the victim to report such violence.104 Cultural practices, such
as FGM, may be implicitly endorsed by the judicial system, which remains
indifferent to, or fails to address harm against women and girls. Analogously,
where the State is unwilling or unable to grant protection, an asylum seeker
cannot be expected to seek said protection.105 A girl who suspects that she will
99 UNGA, ‘Report of the Special Rapporteur on Violence against Women, its
Causes and Consequences’ (8 May 2009) UN Doc A/HRC/11/6/Add.4 [hereinafter
Etürk Report 2009], 18.
100 See ibid., 67.
101 Jason Gutierrez, ‘“Duterte” infamous for his sexist jokes signs law against sexual
harassment’ New York Times (16 July 2019), www .nytimes .com/ 2019/ 07/ 16/ world/
asia/ duterte -sexual -harassment .html.
102 Women Victims of Sexual Torture in Atenco v. Mexico, Preliminary Objections,
Merits, Reparations, and Costs, Inter-American Court of Human Rights Series C No
371 (20 November 2018), para. 73.
103 See Daniela Bandelli, Feminicide, Gender and Violence: Discourses and
Counterdiscourses in Italy (Palgrave Macmillan 2017) 65–69.
104 Cotton Field (n 53) para. 279; Velásquez Paiz v. Guatemala (n 75) para. 111.
Veliz Franco remains ambiguous about the States’ knowledge of the risk situation, but
appears to imply such knowledge. Veliz Franco v. Guatemala (n 53) para. 135.
105 Martina Caroni et al., Migrationsrecht, 4th edition (Stämpfli 2018) 449–450.
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286 Conceptualizing femicide as a human rights violation
be subjected to forced marriage, in an area where such marriages are prevalent,
may not ask the police for help because she reasonably suspects or knows that
the police will not protect her. Considering that the justice system is unlikely to
respond to their claims, and may even make a situation worse, women and girls
may be reluctant to appeal for assistance in structural contexts of violence.106
As the IACtHR has held, women and girls may have a ‘persistent mistrust in
the system for the administration of justice,’ knowing that authorities regularly
fail to respond to crimes against female members of society.107
Currently, under the Osman test, a State’s responsibility would not be
engaged for acid attacks in the streets, such as those committed by strangers
and husbands, in the absence of an individual threat.108 Accordingly, in Ebcin
v. Turkey and Tershana v. Albania, the ECtHR did not consider States respon-
sible for the substantive aspect of Article 3 ECHR in an acid attack committed
by unidentified individuals.109 Ms Ebcin had not filed a complaint about an
imminent threat or possible intimidation of which the authorities should have
had knowledge which would have allowed them to take action.110 The ECtHR
noted that Turkey therefore could not have known that she would be attacked,
despite the applicant’s attempt to adduce statistics on the prevalence of acid
attacks in south-east Turkey.111 Without having been subjected to a specific
threat prior to her ending of her relationship, Alba Chiara could not have
alerted the authorities about an imminent risk to her life.112
106 Etürk Report 2009 (n 99) 20.
107 Miguel Castro-Castro Prison v. Peru, Preliminary Objections, Merits,
Reparations, and Costs, Inter-American Court of Human Rights Series C No 160 (25
November 2006), para. 280.
108 Saeed Kamali Deghan, ‘Acid Attacks in Isfahan have nothing to do with
the Hijab, say Iranian Officials’ The Guardian (20 October 2014), https:// www
.theguardian .com/ world/ iran -blog/ 2014/ oct/ 20/ acid -attacks -isfahan -hijab -iran -young
-women -motorbikes; Human Rights Watch, ‘What Hell Feels Like, Acid Attacks in
Cambodia’ (4 February 2019), www .hrw .org/ report/ 2019/ 02/ 04/ what -hell -feels/ acid
-violence -cambodia.
109 The ECtHR found procedural violations of Articles 3 and 8 ECHR, since the
criminal and administrative investigations into the acid attacks were lengthy. ECtHR,
Ebcin v. Turkey, App No 19506/05 (11 May 2001), para. 55.
110 Ebcin v. Turkey, ibid., paras 45–47. See also Tershana v. Albania, paras 153–162.
111 Ebcin v. Turkey, ibid.
112 Valentina Avon, ‘Femminicidio, si dimette sindaco di un paese in Trentino:
impossibile ricordare la vittima’ Repubblica (24 May 2018), www .repubblica .it/
cronaca/ 2018/ 05/ 24/ news/ sindaco _tenno _trentino _femminicidio -197246726/ ; Dafne
Roat, ‘“Voglio suicidarmi”: lei accorre ma il fidanzato le spara e si uccide’ Il Corriere
della Sera (31 July 2017), www .corriere .it/ cronache/ 17 _luglio _31/ trento -colpi -pistola
-casa -trovati -due -giovani -morti -436fccb0 -75fd -11e7 -bcc9 -f72f41c1edd8 .shtml
?refresh _ce -cp; Margherita Bettoni, ‘Liebe mich oder Stirb’ (2019) 45 Reportagen
18–37.
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No more impunity
Even without police reports, States would generally be aware of group-related
risks against the female social group. In this sense, in Velásquez Rodríguez,
the IACtHR was satisfied that general knowledge of patterns of human
rights violations was enough to hold Honduras responsible for Mr Velásquez
Rodríguez’s disappearance, even though he had not previously denounced any
threats.113 Abramovich reasons that the existence of VAWG occurring over an
extensive time period and according to a pattern, ‘make[s] it impossible for
the State not to know [about widespread VAWG].’114 The argument could nat-
urally be made that States in contemporary society know about the historical
inequality underpinning violence against women and girls and the risks asso-
ciated with being female. Such an extensive approach to state responsibility
would arguably be excessively far-reaching and disproportionate. The affected
female group could instead be identified through various demographic and
ethnographic criteria.
Structural violence against an identifiable female social group could be
revealed by a States’ own statistical evidence. Having ratified CEDAW, a State
would be required to undertake some form of data collection under Article 18
CEDAW and produce reports on their compliance with CEDAW.115 Similarly,
in the inter-American context, Article 8(h) Belém do Pará Convention directs
States to gather statistics and perform research ‘relating to the causes, con-
sequences and frequency of violence against women.’116 NGOs’ ‘shadow
reports,’ providing an alternative account of the States’ human rights com-
pliance, would make the State aware of prevalent women’s rights violations.
Based on Article 8 Optional Protocol to CEDAW, the CEDAW Committee
can also undertake missions where serious human rights violations are alleged
and issue an informative report on the situation, such as its report about the
femicide in Ciudad Juarez.117 The Committee’s pronouncements on the States’
human rights compliance would ensure that a State knows about patterns of
VAWG in its territory. The IACtHR considered that Guatemala was aware
of the widespread gender-based violence against the female social group
on account of a state official having written a report about the situation in
113 Velásquez Rodríguez v. Honduras (n 1) paras 174(c) and 188.
114 Abramovich (n 33) 174.
115 Art. 18(2) CEDAW.
116 Art. 8(h) Inter-American Convention on the Prevention, Punishment and
Eradication of Violence Against Women (Belém do Pará Convention) (adopted 9 June
1994, entered into force 3 May 1995).
117 Art. 8 CEDAW. Committee on the Elimination of Discrimination Against
Women (CEDAW), Report on Mexico under Article 8 of the Optional Protocol to the
Convention, and reply from the Government of Mexico, UN Doc CEDAW/C/2005/O
8/MEXICO, 27 January 2005.
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288 Conceptualizing femicide as a human rights violation
Guatemala City and Escuintla.118 In complying with their international obli-
gations, States should even try to discover whether any widespread structural
violence occurs which targets a segment of their female population.119 Should
States not systematically register cases on the nature and extent of femicide,
should women be reluctant to report violence, and/or should the States’ sta-
tistics fail to differentiate between violence which is gender-based and other
violent acts, reputable national or international NGOs and news outlets could
draw up reports to make States aware about the situation.120 Considering
the many reports available in situations of extreme violence against women
and girls, human rights bodies should be able to establish the extent of state
awareness.
Preventive Measures
In September 2019, France’s Prime Minister, Edouard Philippe, formally
recognized that France has a femicide problem, thereby signaling the State’s
awareness that women and girls are at great risk of being harmed or killed.121
Does that mean that France bears international responsibility for the hundreds
of women who are killed under its jurisdiction? The Osman test’s response to
this question is that States which take adequate preventive measures to address
the risk, can no longer be blamed and relinquish their international responsi-
bility for femicide.122 The Prime Minister also announced that France would
implement new policies to address the issue of femicide. Among the French
emergency measures are the establishment of 1,000 shelters for women, an
‘audit of 400 police stations to see how women’s complaints are handled,’ and
the pledge to budget five million euros to tackle the issue of femicide.123 Are
France’s efforts to alleviate the dangerous situation sufficient to satisfy its obli-
gations under the Osman test? And how comprehensive must these measures
be for a State to comply with its obligations to eliminate femicide? Finally,
what if a State does not have enough financial or other resources to address
femicide? There are a few avenues States might explore, with the caveat that
the issue of preventive measures requires further exploration.
118 Velasquez Paiz v. Guatemala (n 75) para. 111.
119 See Abramovich (n 33) 174.
120 Similarly, in Velásquez Rodríguez (n 1) paras 38 and 106, the Court was satisfied
that NGO reports (by Amnesty International) testified to the practice of enforced disap-
pearance between 1981 and 1984 in Honduras.
121 AEP, ‘France Announces Anti-feminicide Measures as 100th killing recorded’
BBC (3 September 2019), https:// www .bbc .com/ news/ world -europe -49571327.
122 Osman v. UK (n 1) para. 116.
123 AEP (n 121).
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289
No more impunity
The Osman test provides vague directions about the scope of preventive
measures, mandating that States take measures to comply with their interna-
tional obligations ‘within the scope of their powers […] reasonably judged.’124
The ECtHR usually requires ‘effective criminal-law provisions to deter the
commission of offences against the person, backed up by law-enforcement
machinery for the prevention, suppression, and punishment of breaches of
such provisions.’125 The Court focuses on the existence of an adequate legal
framework, as well as specific measures designed to protect individuals
against infringements of their human rights, such as standardized risk assess-
ment tools.126 The IACtHR remains deliberately vague as preventive measures
may vary depending on specific situations,127 but did specify that States should
adopt measures on ‘juridical, political, administrative and cultural’ levels.128
A holistic response is required but the States are given the flexibility to design
their own preventive measures.129 The adoption of preventive measures can
be challenging for States as provisions on such measures, mostly relating to
discrimination as opposed to violence, are scattered throughout treaties and
case law.
Having identified the main preventive measures, I divide the minimum
measures States ought to take to prevent femicide into three categories: (1)
legislative measures; (2) policy measures; and (3) budgetary measures.130 The
proper design of the most adequate measures to prevent femicide is an area
which merits further research. Questions remain open regarding the timing
and extent of the measures which States must take to combat femicide. Is it
enough for a State to enact a single law tackling domestic violence, instead of
a generalized legal framework? At what point in time must States take preven-
tive measures? Are they required to recognize risks of violence against women
when they begin to develop, and before they materialize in individual cases?
The Osman test requires state measures which can be ‘judged reasonably’ to
mitigate the risk situation. What is reasonable could be determined in line with
states’ duty to investigate human rights violations, which is ‘an obligation of
means and not of results.’131 However, such state efforts should be conducted
124 Osman v. UK (n 1) para. 116. See General Recommendation No 28, para. 13.
125 Osman v. UK, ibid., para. 115.
126 See Kurt v. Austria [GC] (n 7) para. 172.
127 Velásquez Rodríguez v. Honduras (n 1) para. 175.
128 Veliz Franco v. Guatemala (n 53) para. 135. See also Velásquez Rodríguez, ibid.,
para. 175.
129 Velásquez Rodríguez, ibid.
130 See along similar lines, Rashida Manjoo, ‘The Continuum of Violence Against
Women and the Challenges of Effective Redress’ (2012) 1(1) International Human
Rights Law Review 1–29 at 25.
131 Veliz Franco v. Guatemala (n 53) para. 183.
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290 Conceptualizing femicide as a human rights violation
‘in a serious manner and not as a mere formality preordained to be ineffective’
and thus be well-intentioned and painstakingly designed to diminish the risk.132
Should States have taken legal, policy, and budgetary measures, well designed
to reduce a risk situation, responsibility for contextual (not necessarily individ-
ual violence) may subside immediately—even if the high-risk situation persists
in the short term.133 From the moment that domestic authorities and reputable
NGOs disseminate statistics and reports on the prevalence of femicide, States
can put their preventive campaign in motion. This implies that state responsi-
bility for widespread violence—not requiring reports of previous threats—is
triggered only when the risk relating to systemic violence against the female
social group has already materialized. In other words, violence must have
reached the required threshold of severity to engage State responsibility—i.e.,
the violence has risen to the level of torture. Moreover, for NGO reports to be
published, and statistics to be available, the violence usually will have taken
place over a substantial time period. While the State response may come rela-
tively late, States must take legal, budgetary, and policy measures to eradicate
femicide at its source. Even so, it is in the States’ interest to curb developing
violence at as early a stage as possible to avoid its international responsibility
for individual abductions and domestic violence in the future.
Other challenges include States which claim to be unable, or which are
openly unwilling, to address femicide. Concepts of unwilling and unable States
also exist in international humanitarian law (IHL) and international refugee
law. IHL, which requires States to either provide humanitarian assistance
themselves or allow international organizations to help, may inspire the deter-
mination of the conditions for when States should seek international assistance
if they cannot discharge their obligation to prevent violence.134 Asylum law
distinguishes between unwilling and unable States, whose law enforcement
and judicial systems either are unavailable to the persecuted person or fail to
properly protect the person.135 An unable State may claim to have insufficient
resources to combat femicide because of external factors, such as armed con-
flict or natural disasters. Before it can relinquish state responsibility, the State
must take every measure at its disposal to address femicide.136 Many States
should be able to cost-effectively enact relevant laws criminalizing violence
132 Velásquez Rodríguezs (n 1) para. 177; Veliz Franco v. Guatemala, ibid.
133 See Abramovich (n 33) 174.
134 Arts 17, 23, 38 and 59 Geneva Convention IV. See also Rule 55 CIL IHL.
135 Caroni et al. (n 105) 449.
136 See Statement of the CESCR, An Evaluation of the Obligation to Take Steps to
the ‘Maximum of Available Resources’ Under an Optional Protocol to the Covenant,
UN Doc E/C.12/2007/1 (2007), para. 4.
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291
No more impunity
at the domestic level.137 To save costs in designing preventive policies, States
may cooperate with relevant NGOs and make a request for international
assistance to protect a female social group from femicide.138 Such international
financial assistance is likely available, as some economically stable States
list the elimination of gender-based violence as a top priority on their foreign
policy agendas—Sweden pursues a feminist foreign policy and sponsors
NGOs working on gender issues.139 States could also approach UN agencies
and/or NGOs familiar with the country’s cultural and legal context to help
address femicide.140 Accordingly, States ought to have attempted to take an
array of measures before claiming an inability to address femicide.
An unwilling State which facilitates gender-based violence or remains inac-
tive because it does not perceive structural violence against women and girls
as a priority, must be held responsible for femicide without exception. After
Russia decriminalized domestic violence in 2017, perpetrators could hit their
wives with impunity, as a result of which domestic violence rates reportedly
steeply increased.141 Despite the CEDAW Committee’s O.G. Case and the
ECtHR’s Volodina v. Russia Judgment, Russia refuses to change its legisla-
tion.142 Such overt unwillingness engages state responsibility.143
Legal framework
The international human rights law framework, including regional women’s
rights treaties, requires States to adopt criminal law and other measures in the
family and private sphere that punish perpetrators of femicide.144 For example,
137 Abramovich (n 33) 174.
138 General Recommendation No 28, para. 29.
139 Government Offices of Sweden, ‘Ministry of Foreign Affairs, Handbook,
Sweden’s Feminist Foreign Policy’, 73 and 87, https:// www .government .se/ 492c36/
contentassets/ fc1 15607a4ad4 bca913cd8d 11c2339dc/ handbook - - -swedens -feminist
-foreign -policy - - -english .pdf.
140 Ibid.
141 Human Rights Watch, ‘I could kill you and no one would stop me!’ (25 October
2018), www .hrw .org/ report/ 2018/ 10/ 25/ i -could -kill -you -and -no -one -would -stop -me/
weak -state -response -domestic -violence.
142 See Andrew Higgins, ‘Russia’s Police Tolerate Domestic Violence. Where Can
Its Victims Turn?’ New York Times (11 July 2019), www .nytimes .com/ 2019/ 07/ 11/
world/ europe/ russia -domestic -violence -european -court -of -human -rights .html.
143 Volodina v. Russia (n 56) para. 85.
144 Art. 7(c), (e) and (h) Belém do Pará Convention; Art. 18(3) Council of Europe’s
Convention on Preventing and Combating Violence against Women and Domestic
Violence (Istanbul Convention) (adopted 7 April 2011, entered into force 1 August
2014); Art. 4(b) Additional Protocol to African Charter on Human and Peoples’ Rights
(Maputo Protocol) (adopted 27 June 1981, entered into force 21 October 1986) (1982)
21 ILM 58.
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292 Conceptualizing femicide as a human rights violation
the Declaration on the Elimination of Violence Against Women (DEVAW)
stipulates that States should ‘develop penal, civil, labor and administrative
sanctions in domestic legislation to punish and redress the wrongs caused to
women who are subjected to violence.’145 Manjoo considers that these legisla-
tive measures also require States to adopt constitutional provisions on gender
equality.146 While it is evident that States must become active on the legislative
front, questions remain about the scope of these measures. A broad interpreta-
tion was used by the ECtHR in the context of domestic violence, where it held
that ‘the Court needs to be satisfied, from an overall point of view, that the
legal framework was adequate to afford protection against acts of violence by
private individuals in any given case.’147 For States to merely criminalize vio-
lence against women and girls, such as rape, or even femicide, is insufficient.
Certain acts of femicide, such as rapes and domestic criminal definitions of
killings as acts of femicide, must be defined appropriately to cover gendered
harm, which would allow States to collect data and monitor such extreme
violence. Concerning killings as acts of femicide, this would require paying
careful attention to how criminal law can identify gendered murders, e.g.,
through so-called overkilling characterized by extreme violence148 As regards
rape, non-consent—not physical resistance—should be the key element of
rape.149 The Istanbul Convention requires States to criminalize rape and man-
dates that ‘[c]onsent must be given voluntarily as the result of the person’s free
will assessed in the context of the surrounding circumstances,’ thus incorpo-
rating the International Criminal Tribunal for the former Yugoslavia (ICTY)’s
Kunarac standard on rape.150 While CEDAW itself does not define rape, in
Vertido, the CEDAW Committee recommended that the Philippines ensure
that lack of consent is the defining element of rape.151 Coercive contexts must
be adequately considered in domestic legal provisions on sexual violence and
other acts of femicide, since a victim cannot consent to sexual intercourse in
situations of widespread violence.
145 Art. 4(c) and (d) DEVAW. ECtHR, M.C. v. Bulgaria, App No 39272/98 (4
December 2003), paras 150–153.
146 Manjoo (n 130) 18.
147 Kurt v. Austria [GC] (n 7) para. 179.
148 See also on the need to define femicide domestically and to gather statis-
tics, European Institute for Gender Equality, ‘Measuring Femicide in the EU and
Internationally: An Assessment’ (2021), https:// eige .europa .eu/ publications/ measuring
-femicide -eu -and -internationally -assessment.
149 ECtHR, Z. v. Bulgaria, App No 39257/17 (28 May 2020) para. 67.
150 Art. 36 Istanbul Convention. Prosecutor v. Kunarac et al. (Judgment) ICTY-96-23
and 23/1 (11 February 2001), paras 645–646.
151 Vertido v. the Philippines, Communication No 18/2008, CEDAW/
C/46/D/18/2008, 16 July 2010 para. 8.9.b.
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293
No more impunity
Besides rape, States must also criminalize FGM and forced marriage under
the Istanbul Convention152 and the Maputo Protocol.153 The Belém do Pará
Convention identifies specific forms of violence—i.e., rape, sexual abuse,
torture, trafficking in persons, forced prostitution, and abduction—but remains
silent on States’ obligations to criminalize them.154 It is thus clear whether the
State complied with this duty to enact the necessary criminal law framework.
An example is Russia’s recent decriminalization of domestic violence, con-
trary to Russia’s obligations under CEDAW, which the State had ratified in
1981.155 Manjoo even claims that states’ failure to ratify a regional women’s
rights treaty or CEDAW constitutes a breach of its preventive legislative obli-
gations.156 Her contention must be relativized as States cannot be legally forced
to ratify treaties. However, to the extent that gender-based violence is part of
CIL, States must combat such violence regardless of prior treaty ratification.157
Should a State have ratified the relevant treaty, it must align its domestic laws
with the relevant treaty provisions.158
Moreover, the relevant legal framework might closely relate to the risk at
issue. For example, in a domestic violence case, it is crucial that domestic laws
provide for protection orders that extend to children’s schools. This was con-
sequential in Kurt v. Austria, where the domestic framework did not provide
for barring orders to automatically extend to schools, and which the Grand
Chamber regrettably failed to consider as insufficient—thereby neglecting the
nature of acts of femicide.159
However, the existence of a legal framework is not enough to prevent
femicide. For example, France’s failure to implement laws to protect women
would normally trigger its responsibility.160 The ECtHR decided in an (argu-
ably outlier) case, that Italy had implemented its legal framework and the
152 See for the definition of FGM, Art. 38(a) Istanbul Convention.
153 Arts 5(b) and 6(a) Maputo Protocol; Arts 37–38 Istanbul Convention.
154 Arts 1(b) and 7(b) Belém do Pará Convention.
155 See on ratifications of CEDAW, UN Treaty Collection, Convention on the
Elimination of All Forms of Discrimination against Women, https:// treaties .un .org/
Pages/ ViewDetails .aspx ?src = TREATY & mtdsg _no = IV -8 & chapter = 4 & clang = _en.
156 Rashida Manjoo, ‘State Responsibility to Act with Due Diligence in the
Elimination of Violence against Women’ (2013) 2(2) International Human Rights Law
Review 240–265 at 243.
157 CEDAW General Recommendation No 35 considers gender-based violence to
be CIL. However, States still condone acts of FGM and etcetera, which would mean
that gender-based violence has yet to become CIL.
158 Manjoo (n 156) 243.
159 Kurt v. Austria [GC] (n 7) paras 88 and 209–210.
160 See Monique El-Faizy, ‘A Woman is killed by her Partner or Ex every three days
in France. Activists want change’ Los Angeles Times (22 October 2021), https:// www
.latimes .com/ world -nation/ story/ 2021 -10 -22/ france -women -killed -by -partners -exes.
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294 Conceptualizing femicide as a human rights violation
police had acted speedily, thus Italian authorities had adequately responded
to a domestic violence claim.161 The Court should not have limited its analysis
to the existence of a legal framework, but examined whether Italy had taken
other preventive measures, such as policy measures, to optimally address the
underpinning culture fueling acts of femicide.
Policy measures
Policy measures should attempt to neutralize sexist and patriarchal societal
contexts.162 Article 2 CEDAW mandates that States ‘pursue a policy to end
discrimination,’ and Article 5(a) CEDAW obligates States to:
modify the social and cultural patterns of conduct of men and women, with a view
to achieving the elimination of prejudices, and customary and all other practices,
which are based on the idea of the inferiority or the superiority of either of the sexes,
or on stereotyped roles for men and women.163
Similarly, the three regional human rights treaties relevant to VAWG require
States to address social and cultural patterns through educational measures,
including teaching materials on the equality between women and men.164 The
Istanbul Convention and the Maputo Protocol consider the cultural context of
violence to be rooted in discrimination; the Belém do Pará Convention explic-
itly recognizes that the cultural context ‘legitimize[s] or exacerbate[s] violence
against women.’165
Another theme which policy measures can address, is the disregard with
which law enforcement and the judiciary treat reports about crimes against
women. To combat impunity, States should adopt a gender perspective in
designing policy measures relating to the investigation of crimes against
women.166 The Istanbul Convention speaks of ‘gender sensitive policies,’
required to ‘implement policies of equality between women and men.’167 Under
the ‘right to sustainable development,’ the Maputo Protocol obliges States to
include a gender perspective in national development plans.168 The Belém do
161 ECtHR, Rumor v. Italy, App No 72964/1024 (May 2014), paras 64 and 76.
162 Manjoo (n 130) 17.
163 Art. 5(a) CEDAW; General Recommendation No 28, para. 9.
164 Art. 1(2) Maputo Protocol; Art. 8 Belém do Pará Convention; Arts 12 and 14
Istanbul Convention.
165 Art. 8(b) Belém do Pará Convention.
166 Dos Erres Massacre v. Guatemala, Preliminary Objections, Merits, Reparations,
and Costs, Inter-American Court of Human Rights Series C No 211 (24 November
2009), para. 141. See Concurring opinion Judge Ramón Cadena Rámila.
167 Art. 6 Istanbul Convention.
168 Arts 1(c) and 9(a) Maputo Protocol.
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No more impunity
Pará Convention does not discuss the gender perspective, but the IACtHR has
put forward criteria for investigations into potentially gender-based acts, such
as the consideration of sexual violence and the ways women and girls were
killed.169 A gender perspective also means that States train police officers and
judges to effectively identify and respond to acts of VAWG.170 Similarly, the
dynamics of gender-based violence must be borne in mind at all times. For
example, coordination between different agencies, such as child protection
authorities, the police, the health care, educational facilities and social workers
are crucial to prevent domestic violence.171 Overall, States have considerable
flexibility in designing their own policies and programs to prevent VAWG.172
While domestic authorities may be best placed to assess what policy measures
are effective in their territory, this national discretion may overwhelm States
without the financial means to design their own policy measures.
Budgetary measures
Financial means are indispensable to effectuate legal and policy change.
Underfunded agencies and programs combatting VAWG may be ineffec-
tive.173 A potential tool to ensure that legal and policy measures are undertaken
in a serious manner, is gender budgeting, which considers ‘the manner in
which governments’ revenues and expenditures affect “women and men,
girls and boys.”’174 The term gender budgeting can also be understood to
refer to the feminist method, the woman question: what is the impact of the
State’s financial plan on issues mainly affecting the female social group?175
Once femicide as an issue concerning women and girls is reflected in States’
budgets, resources may be allocated towards the protection of the female social
group.176
169 See among others, Velásquez Paiz v. Guatemala (n 75) para. 196. Dos Erres
Massacre v. Guatemala (n 166) para. 141; Gladys Espinoza Gonzáles v. Peru,
Preliminary Objections, Merits, Reparations, and Costs, Inter-American Court of
Human Rights Series C No 289 (20 November 2014), para. 281; Cotton Field (n 53)
para. 455.
170 Art. 8(c) Belém do Pará; 8(d) Maputo Protocol; Art. 15 Istanbul Convention.
171 Kurt v. Austria [GC] (n 7) paras 177–180.
172 Volodina v. Russia (n 56) para. 79; Mudric v. Moldova, App No 74839/10 (16
July 2013), para. 48; Kurt v. Austria [GC] (n 7) para. 182.
173 Manjoo (n 130) 18.
174 Ashwanee Budoo, ‘Gender Budgeting as a Means to Implement the Maputo
Protocol’s Obligations to Provide Budgetary Resources to Realise Women’s Human
Rights in Africa’ (2016) 9(3) African Journal of Legal Studies 199–219 at 208.
175 Katharine Bartlett, ‘Feminist Legal Methods’ (1990) 104(4) Harvard Law
Review 828–888 at 837 and 852.
176 Budoo (n 174) 215.
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296 Conceptualizing femicide as a human rights violation
Financial resources must be allocated to the prevention of gender-based
violence under regional VAWG treaties. Under Article 4(i) Maputo Protocol,
States should establish ‘adequate budgetary and other resources for the imple-
mentation and monitoring of actions aimed at preventing and eradicating
violence against women.’ More specifically, Article 10(3) Maputo Protocol
mandates that States ‘take the necessary measures to reduce military expend-
iture significantly in favour of spending on social development in general,
and the promotion of women in particular.’ Particularly vocal on economic
measures to combat violence against women and girls, the Protocol also clar-
ifies in Article 26 that States must take budgetary measures to address every
right enshrined in the Convention. Article 8 Istanbul Convention specifically
asks States to ‘allocate appropriate financial and human resources for the
adequate implementation of integrated policies, measures, and programmes to
prevent and combat all forms of violence.’177 The Belém do Pará Convention
does not expressly mention budgetary measures, yet its educational and
awareness-raising measures as well as its specialized services for victims
inevitably require a sufficient budget.178 The amount required to combat femi-
cide is case-specific and depends on the policy and legal measures enacted.
Femicide may also compete with other pressing issues, such as climate and
other disasters as well as pandemics. Further studies are needed to investigate
how States could prioritize their resources in such circumstances and whether
state responsibility would be engaged if a State’s good faith budget does not
achieve the end objective.
CONCLUDING REMARKS
Does state responsibility extend to femicide? Most acts of femicide (FGM,
forced marriage, rape, and others) are committed by non-state actors. Across
the world, family members, (ex-)partners, terrorist organizations, and private
militia harass, rape, sell, and kill members of the female social group.
Although international law has traditionally closed its eyes to these acts, States
are directly responsible under international law when they remain passive in
such cases. The Osman test limits state responsibility to situations where the
State had been aware about a risk situation for women and girls, and failed to
take preventive measures to address that risk. The argument that the risk in
femicide is ‘real and immediate’ is far from implausible since acts of femicide
are serious and continuous on the one hand, and widespread and group-related
on the other hand. The real and immediate threshold should be low because
177 Art. 8 Istanbul Convention.
178 E.g., Art. 8 Belém do Pará Convention.
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297
No more impunity
States contribute to the risk situation in femicide by either failing to prevent
and punish crimes against women or creating a socio-political climate where
violence against the female social group is normalized. Furthermore, state
awareness can be triggered based on official statistics as well as NGOs’ reports
which show that an identifiable female social group is being targeted.179 Such
a reinterpretation of the Osman test entails the critical consequence that victims
or their family members would no longer be required to report that they are
individually at risk. Furthermore, the respective State would be required to
adopt adequate legal, policy, and budgetary measures to prevent femicide.
This reinterpretation of the Osman standard for widespread risks could
easily be adopted by human rights bodies. To ensure that States do not merely
pay lip service to their international obligations, human rights bodies should
inquire whether States have adopted immediate measures designed to mit-
igate the risk situation, and if necessary, whether they sought international
assistance.180 As such, state responsibility could be established through human
rights bodies exposing a crime to be part of a larger pattern of widespread
violence against the female social group. This would cover the specific ways
in which women and girls are victimized in femicide, namely without previous
threats, as part of a historically marginalized and discriminated group. Finally,
the proposed approach to Osman could serve advocates, survivors, and family
members in their search for justice.
179 See on the need to gather data on femicide: European Institute for Gender
Equality, ‘Measuring Femicide in the EU and Internationally: An Assessment’ (2021),
30 https:// eige .europa .eu/ publications/ measuring -femicide -eu -and -internationally
-assessment.
180 See General Recommendation No 28, para. 29.
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CONCLUSION TO PART III
The proposed human rights-centred concept of femicide combines a doctrinal
analysis of select cases with feminist legal theory. I have taken human rights
bodies’ and scholars’ most daring thoughts about feminism and the law to
propose this concept. Femicide should be conceptualized in human rights
law for many reasons. For one, the social and historical phenomenon of
femicide continues unabashed. The term femicide ‘denote[s] an old practice
in its modern development,’ as Lemkin mentioned with respect to genocide.1
The analysis in this book has revealed that femicide consists of widespread
and serious violence which targets a female social group on the basis of their
gender, in order to objectify, humiliate, and/or instil fear in women and girls,
ultimately placing them in a subordinate social status, where such violence
remains unpunished by the State. Femicide has four main aspects: (1) the
human rights violations in femicide are widespread and gender-based; (2) they
rise to the level of torture and/or killings; (3) they concern the female social
group; (4) state authorities fail to react to femicide, creating impunity.
The proposed femicide concept resembles the crime of genocide in terms
of its group-related goal and draws on crimes against humanity as regards the
kinds of femicidal violence. Femicide consists of many gender-based acts,
such as forced marriage, sexual slavery, and rape. These underlying acts form
a widespread context, created by state impunity for crimes against women and
girls. Consequently, this element is crucial in establishing state responsibility
for femicide. The female social group is the exclusive victim of femicide. This
social group is not static, but rather a malleable unit greatly influenced by crite-
ria such as race, ethnicity, nationality, sexual orientation, geography, and other
factors. Men and boys are likely to benefit from the aim of femicide, the social
subordination of the female social group, but women and girls can commit
sex-selective killings and FGM as well. The aim of femicide, the subordination
of women and girls to a social status where their lives and/or physical and
mental integrity are considered worthless, is achieved via objectifying, humili-
ating and/or inflicting fear in the female social group. The violence in femicide
1 See Raphael Lemkin, Axis Rule in Occupied Europe, Laws of Occupation,
Analysis of Government, Proposals for Redress (Rumford Press 1944) 79.
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Conclusion to Part III
is used to ensure that women and girls remain in their socially assigned role.
The social context––i.e., post-conflict violence, economic harm, sexist polit-
ical climates, and armed conflict––may contribute to misogynist violence,
which serves to keep the existing power (im)balance intact.
My second finding is that femicide falls within the bounds of international
law. To clarify that States are indeed responsible for acts of femicide, even if
the acts are committed by non-state actors, the Osman test can be reinterpreted
to encompass structural, group-related risks, affecting female social groups.
I reinterpret the Osman test in such a way that the risk in femicide would
always be real and immediate as femicide is (1) an ongoing human rights
violation and (2) a widespread human rights violation. As a State contributes
to the structural risk in cases of femicide, at least by failing to stop such vio-
lence, it should be held responsible. States may relinquish this responsibility
by taking preventive legal, policy, and budgetary measures. Adequate legal
measures criminalize violence and include a consent-based rape definition
which takes account of coercive circumstances. The sexist culture underlying
femicide can be dismantled by policy measures. Finally, financial means must
be made available to prevent femicide. Only after they have tried to neutralize
the risk situation, States may claim inability to address femicide.
This work has demonstrated that the international community ought to
urgently and adequately respond to femicide to protect the lives and social
existence of women and girls as equal human beings to men and boys. The
book should be seen as a resource for States and human rights bodies to
address, prevent and potentially adjudicate femicide. Finally, through this
research, I hope to have made a contribution to the protection of women and
girls worldwide.
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abductions
African human rights system 232–5
Inter-American human rights system
169–70, 171, 175, 178–80,
193–209
Inter-American human rights
system, sexual torture and
rape 209–15
Inter-American human rights
system, state passivity 195–6,
199, 201, 204, 205–6, 208–10
Nigeria, Boko Haram abductions
and enslavement 5, 19–20,
55–6, 61, 76, 102, 248, 279
social groups/political activists/
journalists 279–80
state responsibility issues, ending
impunity for femicide 279
see also forced marriage; rape;
sexual slavery
abortion
African human rights system 228
compulsory sterilization and
abortion as violence 115, 116
forced abortion as human rights
violation 262
see also children; contraception;
reproductive capacity
Abramovich, V. 274–5, 284, 287, 288,
290, 291
acid attacks, state responsibility issues
165, 253, 270, 286
adverse life conditions, inflicting 73,
88–9
see also degrading treatment
Africa, Economic Community of West
African States (ECOWAS),
Hadijatou Mani Koraou v. Niger
226
Africa, Maputo Protocol 97, 170, 222,
223, 227–9, 233, 242, 250, 252,
272, 294, 296
African Charter on Human and People’s
Rights 14, 222, 223, 225–7, 233
African Commission on Human and
People’s Rights 222–3, 227, 248
Echaria v. Kenya 223
Equality Now v. Ethiopia 223, 224,
229, 232–5, 236, 248, 263,
264, 277, 282
Interrights v. Egypt 223, 224,
230–31, 235, 242, 263
see also International Criminal
Tribunal for Rwanda (ICTR)
African Court on Human and Peoples’
Rights 222, 223–4, 227
APDF & IHRDA v. Mali 224
African human rights system 222–38
abduction and rape 232–5
abortion 228
contraception and women’s control
over their reproductive
capacity 227, 228
cultural and traditional rights 225–6
customary laws as obstacles 229
degrading treatment 230, 231, 232
discrimination and gender-based
violence 224, 228–9, 231,
233
early or forced marriage 225–6,
228–9, 232–5
female genital mutilation (FGM)
228, 229
gender stereotypes 228, 230–31
harmful traditional practices 225–6,
228–9, 232–5
HIV 227
honor offences 231
matriarchal systems 226
non-discrimination provisions 226–7
political protests 229–31
political violence and forced
marriage 229–35
reproductive rights 227
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right to protection of the family unit
226–7
rights to life, integrity and security
of persons 228, 229
sexual harassment 230–31
sexual slavery 226
state responsibility 226, 230–31,
234–5
women and children as equals 226
women’s honor violation 231
see also human rights violations;
individual countries
Ahmed, A. 257, 261
Albania, ECtHR, Tershana v. Albania
165, 253, 286
Ali, M.-R. 18, 88
Alvarez, A. 8, 102
American Convention on Human Rights
(ACHR) 14, 167, 179
see also Inter-American Court of
Human Rights
Amnesty International 207
Ashe, M. 12, 119
Ashraph, S. 17, 18, 88
Askin, K. 8, 38, 39, 42, 43, 44, 45, 47,
48, 50, 71, 72, 85, 254
asylum seekers and migration
human rights violations 94, 267–8,
285, 290
human trafficking 114
attribution, state responsibility issues
194, 203, 272–7, 280, 284
Austria 4
cases see under UN Convention
on the Elimination of
Discrimination Against
Women; European Court of
Human Rights
Bandelli, D. 4, 27, 132, 243, 245, 285
Bartlett, K. 10, 11, 12, 95, 119, 175, 295
Bassiouni, B. 59, 60, 61
Bejarano, C. 22, 58, 88, 99, 114, 244,
257, 258
Belém do Pará Convention 97, 168,
170–71, 172, 176, 179, 184, 193,
208, 212, 227–8, 237, 250, 265,
272, 293, 294–5, 296
see also Inter-American Court of
Human Rights
Bender, L. 10, 246, 249
Benesch, S. 244, 245
Benninger-Budel, C. 29, 256, 274
Berster, L. 82, 97, 100
Besson, S. 131, 132, 262
Bettinger-Lopez, C. 164–5, 177, 184,
198
Bettoni, M. 257, 286
Brazil 58
cases see under Inter-American
Court of Human Rights
Maria Da Penha Law 177
Brownmiller, S. 38, 40, 55, 257–8
Budoo, A. 222, 223, 224, 227, 229, 295
Buergenthal, T. 5, 118
Bulgaria, cases see under European
Court of Human Rights
Buss, D. 10, 13
Cambodia, Extraordinary Chamber in the
Courts of Cambodia (ECCC) 75–6
Canada, Quipu Project 80
Caputi, J. 54, 55
Caroni, M. 285, 290
Cassese, A. 57, 83, 90, 92, 95, 100
Cespedes, L. 25, 26
Cetorelli, V. 17, 88
Charlesworth, C. 2, 5, 6, 7, 8, 10, 38,
54, 56, 85, 86, 91, 110, 114, 157,
173, 256
Cházaro, A. 16, 245, 261, 266
Chertoff, E. 52, 76
children
child marriage 109
Iraq, ISIS, Yazidi women and girls
17–19, 61, 88, 248, 249,
259–60
Native American children, forced
transfer 90
Nigeria, Boko Haram abductions
and enslavement 5, 19–20,
55–6, 61, 76, 102, 248, 279
rights of child 192–3, 196, 201–2
women and children as equals,
African human rights system
226
see also abortion; domestic violence
Chile 25, 26
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Chinkin, C. 5, 6, 7, 8, 14, 31, 38, 46, 48,
54, 56, 63, 85, 86, 91, 99, 110,
114, 116, 173, 207, 215, 256
civilian population attacks see under
crimes against humanity
coercion
forced marriage see forced marriage
rape 11, 64, 65, 66–7, 68, 121–2,
161, 251–2, 292, 299
Colombia
constitution change 32
IACtHR, Pueblo Bello v. Colombia
221, 277, 280, 281
consciousness-raising 11, 12, 128
consent, rape, consent consideration 11,
64, 65–8, 70, 104, 121–2, 252,
292
European human rights system
160–62, 163–4
contraception, African human rights
system 227, 228
see also abortion
Cook, R. 4, 29, 176, 244
Copelon, R. 40–41, 42, 43, 44, 45, 46,
48, 49, 87, 88, 137
Costa Rica 24–5, 26, 211–12
Council of Europe (CoE) 24, 127
Istanbul Convention 27, 97, 124,
127–30, 132, 135, 148–9,
151–2, 163–5, 170, 202, 228,
237, 250, 252, 272, 292–4
see also ‘Europe’ headings
Craker, L. 13, 14, 31
Crenshaw, K. 188, 247
crimes against humanity 52–78
civilian population attacks 53–7
civilian population attacks, any
civilian population 56–7
civilian population attacks, attack
reference 53–6
context 57–9
forced marriage 74–6
non-state actors 59, 60–62
peacetime occurrences 54
persecution based on gender 76–7
policy requirement 59–63
policy through inaction 62–3
political message of femicide 54–6
public displacement of bodies 55
rape 63–8, 70–71
rape, coercive context 11, 64, 65,
66–7, 68, 121–2, 161, 251–2,
292, 299
rape, consent consideration see
consent
rape, men wrongly accused 68
sexual slavery 68–74, 75–6
sexual slavery, comfort women
(Japan) 69
sexual slavery, deprivation of liberty
70
systematic plan as premeditated 59
terrorist or mafia organizations 61
widespread attack element 58, 60
World War II, Nazi atrocities 81, 82,
84–5, 89, 92, 96, 100
see also genocide
Croatia
cases see under European Court of
Human Rights (ECtHR)
domestic violence 39
see also International Criminal
Tribunal for the former
Yugoslavia (ICTY)
Cusack, S. 4, 176, 244
customary international law (CIL) 60,
98, 115, 272, 293
Darfur Commission 97
De Beauvoir, S. 57, 102, 247, 258
De Brouwer, M. 8, 46, 50, 65, 67, 68, 83,
84, 90, 91
De Weck, F 135, 136
death threats
European human rights system 138,
141, 142, 145, 146, 151–2,
276
UN Convention on the Elimination
of Discrimination Against
Women 119, 124
degrading treatment 44
adverse life conditions, inflicting
73, 88–9
African human rights system 230,
231, 232
European human rights system 131,
135, 136, 137, 139, 145
genocide, femicide as 101–2, 103
Inter-American human rights system
172, 183, 190
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UN Convention on the Elimination
of Discrimination Against
Women (CEDAW) 115, 116
see also sexual violence; social
destruction
Deller Ross, S. 83, 88, 101, 127, 225,
229, 249, 251
discrimination
African human rights system 224,
226–7, 228–9, 231, 233
European human rights system
132–4, 143, 146, 151
human rights violation 264–5
Inter-American human rights
system, state passivity 202,
203
right to non-discrimination 171, 172
domestic violence 4, 6, 39
European human rights system
see European human rights
system, domestic violence
human rights violation 242, 243,
248, 250, 251, 253, 254, 264
indicators 284
Inter-American human rights system
see Inter-American human
rights system, domestic
violence
Inter-American human rights
system, state passivity 198
protection orders 122, 133, 150,
151, 155, 293
and slow-death violence 142, 155–6
state responsibility issues 282–4,
291, 292, 293–4
UN Convention on the Elimination
of Discrimination Against
Women (CEDAW) 115,
119–20, 122–5, 283, 293
see also children; rape; sexual
violence
dowry-related killings 6, 19, 22, 62, 78,
102, 253, 256
UN Convention on the Elimination
of Discrimination Against
Women (CEDAW) 110, 112,
115
see also forced marriage; honor
offences
duty to investigate, Inter-American
human rights system, state
passivity 182, 185, 196, 199–200
duty to prevent violence
human rights violation 242
Inter-American human rights system
171, 176, 184, 198
Dworkin, A. 7, 80, 101, 102, 258
Dynamic Risk Analysis System
(DyRiAs) 284
Ebert, F. 58, 243, 278, 282
Edwards, A. 2, 72, 85, 112, 113, 116,
189, 262, 263
effective protection provisions, rape and
European human rights system
160–62
Egypt, African Commission, Interrights
v. Egypt 223, 224, 230–31, 235,
242, 263
El Salvador 25, 26, 39
Engle, K. 11, 13
Ethiopia, African Commission, Equality
Now v. Ethiopia 223, 224, 229,
232–5, 236, 248, 263, 264, 277,
282
ethnicity
and genocide 87, 88, 90–91, 92–4,
101
and laws of war 40
Etienne, M. 40, 261
European Commission
Greek 136
Jalloh v. Germany 136
European Convention on Human Rights
(ECHR) 14, 127, 130–42, 164
European Court of Human Rights
(ECtHR)
A. v. Croatia 132, 133, 138, 142,
146–7, 241
Avsar v. Turkey 279–80
Aydin v. Turkey 130, 136, 137,
157–8, 184, 185, 190,
211–12, 255, 270
Balsan v. Romania 134, 135, 147
Bevacqua and S. v. Bulgaria 131,
139
Branko Tomašić and Others v.
Croatia 132, 141, 142, 255
Câmpeanu v. Romania 130
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Choreftakis and Choreftaki v.
Greece 279
Chowdury and Others v. Greece 130
Civek v. Turkey 141
Demir and Baykara v. Turkey 135
Durmaz v. Turkey 141
E.B. v. Romania 139, 162–4, 251
Ebcin v. Turkey 130, 139, 253, 286
Eren v. Turkey 157, 159
Gonzalez Carreño v. Spain 119,
155, 255
Hajduová v. Slovakia 131, 134, 138
Ireland v. UK 135
Jankovich v. Croatia 138
J.D. and A. v. UK 135
Kalucza v. Hungary 131, 133, 138
Kilic v. Turkey 280
Kontrova v Slovakia 132, 141, 144
Kowal v. Poland 138
Kurt v. Austria 129, 132, 141, 142,
150–56, 248, 270, 278–9,
282, 283, 284, 289, 292, 293,
295
Levchuk v. Ukraine 130, 138, 142
M. and Others v. Bulgaria 131
Maslova and Nalbandov v. Russia
137
Mastromatteo v Italy 269, 279
M.C. v. Bulgaria 131, 137, 139,
160–62, 163, 165, 166, 259,
267, 292
Mudric v. Moldova 133, 137, 295
Muntenau v. Romania 130, 132, 142
Opuz v. Turkey 114, 127, 130, 132,
133, 134, 143–5, 147, 155,
241, 249, 270, 283
Osman v. UK 118, 120, 123, 141,
144–5, 153, 156, 163, 165,
169, 174, 179, 195, 198–9,
214, 221, 234–6, 269–70,
273, 276–90passim, 297, 299
Raninen v. Finland 136
Rumor v Italy 149, 293–4
Selmouni v. France 137
Soering v. UK 136
Talpis v. Italy 27, 140, 141–2,
147–9, 152, 154, 155, 249,
255, 256, 264, 269, 270, 278,
282–3
Tershana v. Albania 165, 253, 286
T.M.and C.M. v. Moldova 154
Valiuliene v. Lithuania 137, 139–40,
154, 283
Vasiliauskas v. Lithuania 98
Volodina v. Russia 133, 140, 142,
155, 241, 251, 266, 278, 291,
295
X and Y v. the Netherlands 131, 138,
166
Z. v. Bulgaria 292
European human rights system 127–66
death threats 138, 141, 142, 145,
146, 151–2, 276
degrading treatment 131, 135, 136,
137, 139, 145
gender stereotypes and police
passivity 133, 144, 149
gender-based violence 131–5
inhuman treatment 135, 136
and Istanbul Convention see under
Council of Europe
men’s experiences as standard 132
non-discrimination principle 132–4,
143, 146, 151
non-state actors 140–42, 143–4,
145, 148, 160–64
private murders and right to life
140–42, 143–4, 148
rape, consent consideration 160–62,
163–4
right to privacy and identity 137–40,
146
severe violence 135–7, 139, 146–9
time-barred cases 159
unequal treatment based on sex
133–5, 144–5, 149
unequal treatment based on sex,
and proportionality principle
134–5
see also human rights violations;
individual countries
European human rights system, domestic
violence 4, 127, 128–30, 131–5,
137, 138, 139–40, 141, 142–56
protection orders 122, 133, 150,
151, 155, 293
risk assessment 130, 145, 151,
152–4, 156
role of ‘secondary’ victims 150–52,
154–6
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Index
state obligations 143–4, 145, 146–7,
148–9, 154
European human rights system, rape 127,
128, 131, 132, 135, 136–7, 138–9,
156–64
and clarification of facts 163–4
classified as torture 156–8
and due diligence obligation to
prevent ill-treatment by
private individuals 163
and effective protection provisions
160–62
and frozen-fright syndrome 161
physical resistance requirements,
stance against 156–7, 161–2,
163, 165, 166
state actors 157–9
and use of force or threats 160–61
European Institute for Gender Equality
23
Every Woman Treaty Coalition 267
exclusions, female social groups 248–9
fair trial and access to justice right 2,
171, 175, 184, 186, 188, 204–5,
210, 218–19, 241, 272
family members’ rights 172, 186, 206
family unit protection right 6, 7, 171,
172, 226–7
Fein, H. 84
female genital mutilation (FGM) 3
African human rights system 228,
229
genocide, femicide as 101
human rights violation 242, 249–50,
251
state responsibility issues 271, 284,
285, 293
UN Convention on the Elimination
of Discrimination Against
Women (CEDAW) 112, 115
female social groups see human rights
violation, female social groups
femicide definition 21–3, 241–2
Finland, ECtHR, Raninen v. Finland 136
force, use of, rape and European human
rights system 160–61
forced abortion see abortion
forced marriage
African human rights system 225–6,
228–35
crimes against humanity 74–6
genocide, femicide as 91, 102
human rights violation 242, 243,
250–53, 254, 255
Iraq and ISIS, Yazidi women and
girls 17–19, 61, 88, 248, 249,
259–60
marriage contracts 30–31, 232, 233,
260
Nigeria, Boko Haram abductions
and enslavement 5, 19–20,
55–6, 61, 76, 102, 248, 279
state responsibility issues 279, 282,
284, 285–6, 293
UN Convention on the Elimination
of Discrimination Against
Women (CEDAW) 114, 115,
117, 233–4
see also abductions; coercion;
dowry-related killings; honor
offences; rape; sexual slavery
forced nudity 74, 130, 159, 270–71
Inter-American human rights system
171, 183, 184, 216
forced prostitution see prostitution
forced sterilization, human rights
violation 250
forced transfer of Native American
children 90
formal equality, human rights violation,
structural inequality issues 262–3
France 288, 293
domestic violence 4, 248
ECtHR, Selmouni v. France 137
Fredman, S. 132, 241, 262, 263–4
Fregoso, R.-L. 22, 58, 88, 99, 114, 244,
258
frozen-fright syndrome, rape and
European human rights system
161
future direction and women’s rights
movements 266–8
Gardam, J. 38, 43, 45, 47
gender, persecution based on gender,
crimes against humanity 76–7
gender bias, and human rights violation
242
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gender definition 14–15
gender identity, LGBT2Q+ groups 14,
91, 96
gender stereotypes
African human rights system 228,
230–31
European human rights system 133,
144, 149
and human rights violation 244
Inter-American human rights system
176, 196–7, 202–3, 206–7,
213, 214–15, 218
international humanitarian law
(IHL) 44–5, 47
gender-based violence 3
customary international law (CIL)
and gender-based violence,
state responsibility issues 272
discrimination and gender-based
violence, African human
rights system 224, 228–9,
231, 233
European human rights system
131–5
human rights violation 250–53
Inter-American human rights system
168–9, 172
Inter-American human rights
system, sexual torture and
rape 216–17
right to be free from 171, 178, 184,
193, 227, 228, 229, 241, 272
UN Convention on the Elimination
of Discrimination Against
Women (CEDAW) 109–10,
111–12, 114–17, 120, 187,
193, 207, 241, 244, 250–51,
272
gender-sensitive investigation,
Inter-American human rights
system 175–6, 183, 190
gendercide 91, 98–9
gendered conflict dynamics, laws of war
37–41
Geneva Conventions 43, 44–7
Geng, J. 227, 229
genocide, femicide as 7–8, 79–103
adverse life conditions, inflicting
73, 88–9
female genital mutilation (FGM)
101
forced marriage and sexual slavery
91, 102
forcibly transferring children to
another group 90
gendercide 91, 98–9
genocide definitions 81–91
human rights violations 258–9
inflicting adverse life conditions
88–9
intent to destroy 82, 85, 86–7, 98,
100–101
killing members of a group 83–4
and laws of war 40–41
LGBT2Q+ groups 91, 96
and mental harm 3, 84–8
prostitution 85, 91
rape and sexual violence 82–3,
84–8, 89, 90–91, 92, 100, 101
rape and sexual violence, and
ethnicity 87, 88, 90–91, 101
serious bodily or mental harm 84–8
slow-death violence 84, 89
see also crimes against humanity
genocide, femicide as, protected gender
groups 91–9
and customary law 98
national, ethnic, racial, and religious
groups 92–4
permanency requirement 96–7
protection expansion possibility
94–8
and Vienna Convention on the Law
of Treaties (VCLT) 94–6
Gentili 42
Germany
European Commission, Jalloh v.
Germany 136
Nazi atrocities 81, 82, 84–5, 89, 92,
96, 100
see also International Military
Tribunal in Nuremberg (IMT)
Gillespie, A. 41, 43
Goldblatt, B. 2, 14, 247, 261
Grabenwarther, C 134, 135
Greece, cases see under European Court
of Human Rights (ECtHR)
Greve, K. 38, 45, 46
Grigoryan, A. 87, 90
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Grotius, H. 42
group members, killing, and genocide
83–4, 100–101
group-related risk, state responsibility
issues 279–81
Grover, L. 81, 91
Guatemala 26, 27, 41
cases see under Inter-American
Court of Human Rights
(IACtHR)
Femicide Law 25
Sepur Zarco 73–4
Guilfoyle, D. 58, 92, 93, 95, 243
Hagay-Frey, A. 8, 45, 46, 47, 52, 57, 62,
63, 72, 83, 85, 86, 90, 93, 94, 97,
100
Haglund, J. 31, 32
Hague Conventions 43, 44
Hall, R. 18, 19
Halley, J. 68
harmful traditional practices, African
human rights system 225–6,
228–9, 232–5
Hernández Guzmán, D. 219, 251
hierarchies, female social groups 248,
263–4
Hirsi Ali, A. 7
HIV, African human rights system 227
Holmaat, R. 109, 112, 113, 233
Holmes, H. 6, 33, 256
Honduras 80
IACtHR, Velásquez Rodríguez v.
Honduras 29, 174–5, 195,
269, 273–6, 287–90
honor offences 22, 23, 62, 104, 284
African human rights system 231
laws of war 43–7
state responsibility issues 284
women’s honor stereotypes 44–5, 47
see also dowry-related killings;
forced marriage
human rights, and UN Convention on
the Elimination of Discrimination
Against Women (CEDAW)
107–8, 115–16, 267
human rights law 5–7, 12–13, 30, 32–3
human rights violations 2–3, 11, 240–68
contextual elements 244–5
domestic violence 27–8, 242, 243,
248, 250, 251, 253, 254, 264
duty to prevent violence 242
enforced disappearance 28–9
female genital mutilation (FGM)
242, 249–50, 251
femicide concept 241, 247–8
femicide definition 241–2
forced abortion 262
forced marriage 242, 243, 250–53,
254, 255
forced sterilization 250
future direction and women’s rights
movements 266–8
and gender bias 242
and gender stereotyping 244
gender-based acts 250–53
and impunity treatment 265–6
and impunity treatment, passiveness
from state authorities 266
mental harm 253, 255
migration and asylum seekers 94,
267–8, 285, 290
multilateral treaty, need for 266–7
non-state actors 242, 254
political climate effects 245–6
rape 242, 250, 251–2, 254, 255, 256,
261, 262
rights, specific see ‘right’ headings
sexual slavery 242, 243, 250, 251–3,
254, 255, 259–60
sexual violence 251–3
and slow-death measures 255–6
universal treaty on VAWG, need
for 267
violence as torture 242
widespread violence 242–6, 252
see also African human rights
system; European human
rights system; Inter-American
human rights system
human rights violations, female social
groups 245, 246–50
common social factors 247–8
definition 248
exclusions 248–9
hierarchies 248, 263–4
members and common multiple
oppression 247–9
perpetrators 249–50
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and racial hierarchy 247
risk of being targeted 247–8
structural violence against, and state
responsibility issues 287
human rights violations, severe violence
253–6
inequality 261–2
killings and right to life 255–6
sexual torture 254–5
slow-death measures 255–6
torture as discrimination 255
human rights violations, structural
inequality issues 243–4, 245–6,
249–50, 256–65
discrimination 264–5
formal equality 262–3
genocide comparison 258–9
humiliation of female social group
259
objectification 259–60
substantive equality 263–5
human trafficking 114
see also asylum seekers and
migration
Hungary, ECtHR, Kalucza v. Hungary
131, 133, 138
impunity, ending see state responsibility
issues, ending impunity for
femicide
indigenous females, military violence
against see Inter-American human
rights system, military violence
against indigenous females
integrity, right to 168, 171–2, 178, 186,
189, 192, 196, 198, 201–2, 206,
208, 210, 214, 216, 228–9, 241
intent to destroy, genocide, femicide as
82, 85, 86–7, 98, 100–101
Inter-American Commission on Human
Rights (IACHR) 16, 167, 168,
170–71, 176
Inter-American Commission of Women
(ICW) 168
Inter-American Convention to Prevent
and Punish Torture (IACPPT)
173, 200
Inter-American Court of Human Rights
(IACtHR) 167–8, 241–2, 248
Barbara de Sousa and Others v.
Brazil 168
Castro-Castro Prison v. Peru
170, 171, 172, 173, 183–6,
211–12, 216, 221, 254, 286
Dos Erres v. Guatemala 180, 181–2,
221, 244, 294, 295
Espinoza Gonzáles v. Peru 172, 183,
186–8, 220, 221, 266, 295
Fernandez Ortega et al. v. Mexico
173, 174, 189–91, 192, 213,
254
González et al. v. Mexico (Cotton
Field Case) 3, 4, 15–17, 114,
168–71, 174, 176, 193–200,
203, 204–5, 207, 210, 221,
243–5, 248, 268, 277, 281,
283, 285, 295
Hacienda Verde Workers v. Brazil
211
J. v. Peru 183
Lenahan v. the United States 167,
176–7, 178–80
López Soto v. Venezuela 168, 172,
173–4, 175, 200, 209–15,
220, 252, 253, 254, 255, 259,
270, 283
Maria da Penha v. Brazil 114, 171,
176, 177–8, 184
Plan de Sánchez v. Guatemala 180,
181, 221
Pueblo Bello v. Colombia 221, 277,
280, 281
Rosendo Cantú v. Mexico 173,
191–3, 213, 244
Sawhoyamaxa Indigenous
Community v. Paraguay 280
Velásquez Paiz v. Guatemala 168,
172, 174–5, 180, 193–4,
205–10, 221, 248, 259, 265,
281, 285, 287–8, 295
Velásquez Rodríguez v. Honduras
29, 174–5, 195, 269, 273–6,
287–90
Veliz Franco et al. v. Guatemala
174–6, 180, 193–4, 201–5,
207, 210, 221, 249, 277, 281,
285, 289
V.P.C.and Others v. Nicaragua 188
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Index
Wallace de Almeida v. Brazil
280–81
Women Victims of Sexual Torture in
Atenco v. Mexico 159, 174,
186, 215–19, 254, 255, 285
see also American Convention on
Human Rights; Belém do
Pará Convention; human
rights violations
Inter-American human rights system
167–221
abductions 169–70, 171, 175,
178–80, 193–209
degrading treatment 172, 183, 190
duty to prevent violence 171, 176,
184, 198
family members’ involvement 172
gender stereotypes 176, 196–7,
202–3, 206–7, 213, 214–15,
218
gender-based violence 168–9, 172
gender-based violence, right to be
free from 171, 178, 184, 193
gender-sensitive investigation 175–6
gendered harm as torture 173
non-state actors 169, 174, 176, 183,
198, 199–200, 220
and ostracization 180, 192
prostitution 201, 202, 206, 207, 215,
218
rape and severe violence 172–4
rape as torture 169, 173–4
right to equality 176–8
right to fair trial and judicial
protection 171, 175
right to family life and honor 171,
172
right to integrity 168, 171–2, 178,
186, 189, 192, 196, 198,
201–2, 206, 210, 214, 216
right to life 171, 178, 182
right to non-discrimination 171, 172
risk assessment 174–5
sexual massacres and mass rapes
180–82
sexual violence as violation of
personal integrity 169
and states’ responsibilities 169, 173,
175–6, 178, 179–82
tolerance of violence against
women, issues over 172
see also human rights violations;
individual countries
Inter-American human rights system,
domestic violence 176–80
‘private’ rape 185
restraining orders 178–80
and right to equality 177–8
Inter-American human rights system,
military violence against
indigenous females 188–93
family rights to personal and moral
integrity 189
language issues 189, 190
prohibition of torture 192
rape as torture 189–90, 192
right to be free from torture 189
right to dignity and privacy 192
right to honor and dignity 189
right to judicial protection and fair
trial 189, 191, 192
right to personal integrity 192
right to private life 190
rights of the child 192–3
Inter-American human rights system,
sexual torture and rape 209–19
abductions 209–15
gender stereotypes 213, 214–15, 218
gender-based harm 216–17
right to be free from sexual slavery
210
right to be free from torture 210
right to be recognized as a person
before the law 210
right to equal access to justice 210
right to freedom of movement 210
right to humane treatment 210
right to integrity 214, 216
right to judicial protection and fair
trial 210, 218–19
right to personal liberty 210
right to privacy 216
sexual slavery 210–11
social control to intimidate and
silence women 217–19
state actors, criminal responsibility
212
state agents 215–19
state responsibilities 211–14, 218
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state responsibility for private acts
213
three-prong test 212–13
waiting times for missing persons
and investigation delays
209–10
Inter-American human rights system,
sexual violence in state custody
183–8
family members’ rights to personal
integrity 186
forced nudity 171, 183, 184, 216
rape as torture 183, 184–5, 186–7
and right to be free from (rape)
torture 184
and right to be free from violence
184
and right to humane treatment 184
and right to judicial protection and
fair trial 184, 186, 188
and right to life 183–4
right to personal integrity and
dignity 186
right to personal liberty 186
Inter-American human rights system,
state passivity 193–209
and domestic violence 198
duty to investigate 182, 185, 196,
199–200
family members’ rights to access to
justice 206
and gender stereotypes 196–7,
202–3, 206–7
gender-based violence 196, 203–4,
205, 208–9
non-discrimination right 202, 203
and prevention of human rights
violations 198, 199–200
rape as torture 200
right to equal access to justice and
fair trial 204–5
right to judicial protection and due
diligence 196, 199, 204
right to life 196, 201, 206, 208
right to personal integrity and
personal liberty 196, 201,
202, 206, 208
rights of the child 196, 201–2
social class issues 193–4, 198,
206–7
waiting period for missing persons
and investigation delays
195–6, 199, 201, 204, 205–6,
208–10
and widespread risk consideration
194–5, 198–9, 203–4, 207–8
women’s right to be free from
gender-based violence 193
International Court of Justice (ICJ) 95
Corfu Channel 273
Liechtenstein v. Guatemala
(Nottebohm) 92
US v. Iran 273–4
International Covenant on Civil and
Political Rights (ICCPR) 5
International Covenant on Economic,
Social and Cultural Rights
(ICESCR) 5
International Criminal Court (ICC) 50,
79, 202, 252
Elements of Crimes (EoC) 58, 60,
61, 62, 66, 67, 68, 70, 76,
86, 90
Prosecutor v. Bashir 92
Prosecutor v. Bemba 56, 61
Prosecutor v. Katanga 54, 56, 59,
60, 61, 67, 70–73
Prosecutor v. Ntaganda 67, 73
Prosecutor v. Ongwen 75, 252
Rome Statute 50, 53, 54, 58, 60, 63,
74, 76, 77, 86, 91–2, 94, 97
international criminal law (ICL) 7–8, 11,
12–13, 80, 93
crimes against humanity provision
7, 8
genocide 8
and policy element 60
rape 64, 65
International Criminal Tribunal for the
former Yugoslavia (ICTY) 49–50,
79, 100–101
Prosecutor v. Delalic 65
Prosecutor v. Furundžija 65, 66–7,
86, 128, 173, 184, 251
Prosecutor v. Kordic 56, 58
Prosecutor v. Krstic 84, 86, 92, 93,
100, 254–5
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Index
Prosecutor v. Kunarac 50, 53, 54,
56, 58, 59, 60, 65–7, 69, 122,
161, 163, 164, 220, 251, 252,
267, 292
Prosecutor v. Kupreskic 76
Prosecutor v. Kvocka 74
Prosecutor v. Mucic (Čelebići) 50,
65
Prosecutor v. Sainovic 77
Prosecutor v. Tadić 44, 50, 54, 56,
60–61, 64
see also Croatia
International Criminal Tribunal for
Rwanda (ICTR) 50, 60, 64, 79,
96–7
Prosecutor v. Akayesu 64, 67, 74,
84, 85, 88, 89, 90, 92, 93, 96,
97, 100, 101, 173, 184, 219,
251, 254, 255
Prosecutor v. Gacumbitsi 84, 86, 91,
93, 100
Prosecutor v. Muhimana 85, 87
Prosecutor v. Musema 86
Prosecutor v. Nahimana 244–5
Prosecutor v. Niyitegeka 87
Prosecutor v. Nyiramasuhuko et al.
(Butare) 249
Prosecutor v. Rutaganda 85
Prosecutor v. Semanza 60, 86
Prosecutorv. Seromba 255
see also African Commission on
Human and People’s Rights
international financial assistance, and
state responsibility issues 291
international humanitarian law (IHL)
37–50
and female civilian populations
37–9, 43, 44–5
Geneva Conventions 43, 44–7
Hague Conventions 43, 44
prisoners of war 45–6
rape and sexual violence issues 38,
44–5, 46, 47–8, 49–50
women as vulnerable and weak 43,
46
women’s honor stereotypes 44–5, 47
International Labour Organization
(ILO), Violence and Harassment
Convention 110–11
International Military Tribunal Charter
82
International Military Tribunal for the
Far East in Tokyo (IMTFE) 48–9
International Military Tribunal in
Nuremberg (IMT) 47–8, 60, 96
see also Germany
international state responsibility, laws of
war 41
Iran, Militia Attack on US Embassy
273–4
Iraq, ISIS, Yazidi women and girls
17–19, 61, 88, 248, 249, 259–60
Israel, Attorney-General of Israel v.
Adolf Eichmann 89
Istanbul Convention 27, 97, 124, 132,
135, 148–9, 151–2, 163–5, 170,
202, 228, 237, 250, 252, 272,
292–4, 12730
see also European human rights
system
Italy, cases see under European Court of
Human Rights (ECtHR)
Japan 32
comfort women 49, 52, 69
International Military Tribunal
for the Far East in Tokyo
(IMTFE) 48–9
Jarvis, M. 69, 83, 86
Jessberger, F. 92, 93, 95, 96, 97
Jones, A. 83–4, 99
Jones, J. 99, 127, 128, 129
judicial protection and due process right
163, 196, 199, 204, 242
justice access and a fair trial right 2, 171,
175, 184, 186, 188, 204–5, 210,
218–19, 241, 272
Kapur, R. 13, 158, 210
Kennedy, D. 55, 233, 258, 261
Kenya
African Commission, Echaria v.
Kenya 223
Tatu Kamau v. Attorney General
112, 229
Kerr, V. 74, 76
Kravetz, D. 210, 213, 214, 217
Kress, C. 77, 79, 93, 258
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Lagarde, M. 7, 16, 22, 57, 243, 248, 266
language issues, Inter-American human
rights system, military violence
against indigenous females 189,
190
laws of war 37–51
and ethnicity 40
femicide as modern crime 47–50
gendered conflict dynamics 37–41
genocide and femicide comparison
40–41
historical legitimacy of rape during
war 43–4
honor offences 43–7
international state responsibility 41
military leadership roles 38
military violence against indigenous
females see Inter-American
human rights system, military
violence against indigenous
females
peacetime and wartime rapes,
relationship between 39–41
prisoners of war 45–6
prostitution 44, 45, 46, 47, 50
rape inflicted under orders 41
sexual violence 40, 41–3
sexual violence, war-related
approaches to 41–50
Lemkin, L. 57, 81, 92, 95, 100, 258–9,
298
Levit, N. 2, 10, 128
LGBT2Q+ groups 14, 91, 96
liberal state concept 29–30
liberty, right to 70, 186, 196, 201, 202,
206, 208, 210, 241
life, right to see right to life
Lithuania, cases see under European
Court of Human Rights (ECtHR)
Londono, P. 138, 139
López, A. 4, 16, 17
MacKinnon, C. 6, 7, 11, 33, 39, 40, 48,
67, 68, 87, 89, 99, 100, 107, 108,
164, 186, 246, 256, 260, 262, 263,
264
McQuigg, R. 140, 143, 164, 167
Mali, African Court, APDF & IHRDA v.
Mali 224
Manjoo, R. 5, 29, 31, 32, 39, 108, 111,
114, 116, 117, 125, 126, 284–5,
289, 292, 293, 294, 295
Manne, K. 100, 243–4, 249, 256, 260
Maputo Protocol 97, 170, 222, 223,
227–9, 233, 242, 250, 252, 272,
294, 296
see also ‘Africa’ headings
Mariño, F. 3, 7, 52, 58, 80, 247
marriage
forced see forced marriage
rape in 111
Matfess, H. 55, 102
matriarchal systems, African human
rights system 226
Melzer, N. 254, 255
mental harm
and genocide 3, 84–8
human rights violations 253, 255
UN Convention on the Elimination
of Discrimination Against
Women (CEDAW) 115, 117
Messuti, A. 7, 22, 32, 52, 57, 80, 88, 99,
101
Mexico 16–17, 26
cases see under Inter-American
Court of Human Rights
(IACtHR)
Meyersfeld, B. 27, 28, 57, 59, 62, 77,
142, 169, 171, 188, 197, 225, 226,
229, 236, 248, 251, 253, 271, 278
migration see asylum seekers and
migration
Mikhail, D. 18, 19, 260
military leadership roles, laws of war 38
military violence against indigenous
females see Inter-American
human rights system, military
violence against indigenous
females
Miller, A. 2, 8, 220, 253
Moldova, cases see under European
Court of Human Rights (ECtHR)
Morales Trujillo, H. 5, 25, 74, 257
Muñoz Vargas, O. 193, 201
Murad, N. 1, 17
Nadji, D. 45, 46, 107, 108, 112, 116,
117, 267
Nassali, M. 225, 228, 229
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Index
national, ethnic, racial, and religious
groups, protected gender groups
92–4
Netherlands, ECtHR, X and Y v. the
Netherlands 131, 138, 166
NGO involvement, state responsibility
issues 287, 288, 290, 291
Nicaragua 25, 26
IACtHR, V.P.C.and Others v.
Nicaragua 188
Niger, ECOWAS, Hadijatou Mani
Koraou v. Niger 226
Nigeria, Boko Haram abductions and
enslavement 5, 19–20, 55–6, 61,
76, 102, 248, 279
non-discrimination see under
discrimination
non-state actors 28–9, 30
crimes against humanity 59, 60–62
European human rights system
140–42, 143–4, 145, 148,
160–64
human rights violations 242, 254
Inter-American human rights system
169, 174, 176, 183, 198,
199–200, 213, 220
state responsibility issues 271, 274,
276, 283–4
UN Convention on the Elimination
of Discrimination Against
Women (CEDAW) 117–18
Nussbaum, M. 102, 260
Ogg, K. 13, 14, 31
O’Keefe, R. 50, 254
Oliveira, M. 55, 101, 246, 256
omissions as wrongful conduct, state
responsibility issues 270–72
Oosterveld, V. 15, 63, 70, 74, 77, 92
Orago, N. 225, 228, 229
Organization of American States (OAS)
23, 167
Oriola, T. 19, 55–6
ostracization, Inter-American human
rights system 180, 192
Ott, L. 28, 246
Otto, D. 10, 11
Pan-American Association for the
Advancement of Women 168
Paraguay, IACtHR, Sawhoyamaxa
Indigenous Community v.
Paraguay 280
Pateman, C. 30, 243–4, 246, 260
patriarchy see structural inequality
peacetime occurrences, crimes against
humanity 54
peacetime and wartime rapes,
relationship between, laws of war
39–41
permanency requirement, genocide and
protected gender groups 96–7
Peru 25, 26
cases see under Inter-American
Court of Human Rights
(IACtHR)
Quechua sterilizations 79–80
Philippines, CEDAW, Vertido v. the
Philippines 120–22, 126, 251, 292
physical resistance requirements, stance
against, European human rights
system, rape 156–7, 161–2, 163,
165, 166
Poland, ECtHR, Kowal v. Poland 138
police officials, rape committed by 173
police passivity, European human rights
system 133, 144, 149
policy requirement, crimes against
humanity 59–63
policy through inaction, crimes against
humanity 62–3
political activists, enforced
disappearances cases 279–80
political climate effects, human rights
violation 245–6
political message of femicide, and crimes
against humanity 54–6
political protests, African human rights
system 229–31
political science and international policy
approaches 21–4
political violence and forced marriage,
African human rights system
229–35
premeditation concept, crimes against
humanity 59
preventive measures
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314 Conceptualizing femicide as a human rights violation
Inter-American human rights
system, state passivity 198,
199–200
state responsibility issues 275–6
state responsibility issues, ending
impunity for femicide 288–96
UN Convention on the Elimination
of Discrimination Against
Women (CEDAW) 117–18
prisoners of war 45–6
see also laws of war
privacy, right to 137–40, 146, 183, 184,
186, 189, 190, 192, 216, 241, 242
private actors see non-state actors
private/public divide and women’s
citizenship 30–31
prohibition of torture see under torture
proportionality principle, European
human rights system 134–5
prostitution
genocide, femicide as 85, 91
Inter-American human rights system
201, 202, 206, 207, 215, 218
laws of war 44, 45, 46, 47, 50
UN Convention on the Elimination
of Discrimination Against
Women (CEDAW) 114
protected gender groups see genocide,
femicide as, protected gender
groups
protection orders 122, 133, 150, 151,
155, 178–80, 293
see also domestic violence
racial hierarchy, female social groups
247
Ramelsberger, A. 19, 249
Ramji-Nogales, J. 14, 246, 247
rape 7, 11
African human rights system 232–5
coercive context 11, 64, 65, 66–7,
68, 121–2, 161, 251–2, 292,
299
consent consideration see consent
crimes against humanity 63–8,
70–71
and genocide, femicide as 82–3,
84–8, 89, 90–91, 92, 100, 101
human rights violation 242, 250,
251–2, 254, 255, 256, 261,
262
Inter-American human rights system
172–4, 180–82
Inter-American human rights
system, domestic violence
185
international humanitarian law
(IHL) 38, 44–5, 46, 47–8,
49–50
laws of war 39–41, 43–4
state responsibility issues 285, 292
as torture see torture, rape as
UN Convention on the Elimination
of Discrimination Against
Women (CEDAW) 111, 116,
117, 120–22
see also abductions; domestic
violence; forced marriage;
sexual slavery; sexual
violence
rape as torture
committed by police officials and
military personnel 173
European human rights system
156–8
Inter-American human rights system
169, 173–4
Inter-American human rights
system, military violence
against indigenous females
189–90, 192
Inter-American human rights
system, sexual torture see
Inter-American human rights
system, sexual torture and
rape
Inter-American human rights
system, state passivity 200
Rees, M. 14, 31
Refugee Convention 94
religious groups, protected gender groups
92–4
reproductive capacity 19, 20, 32, 63, 69,
89, 114, 258
see also abortion
reproductive rights, African human rights
system 227, 228
restraining orders see protection orders
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Index
Richards, D. 31, 32
right of access to justice and a fair trial
2, 171, 175, 184, 186, 188, 204–5,
210, 218–19, 241, 272
right to be free from gender-based
violence 171, 178, 184, 193, 227,
228, 229, 241, 272
right to be free from sexual slavery 210
right to be free from torture 184, 189,
210, 241
right to be recognized as a person before
the law 210
right to equality 176–8
right to freedom of movement 210
right to humane treatment 184, 210
right to integrity 168, 171–2, 178, 186,
189, 192, 196, 198, 201–2, 206,
208, 210, 214, 216, 228–9, 241
right to judicial protection and due
process 163, 196, 199, 204, 242
right to liberty 70, 186, 196, 201, 202,
206, 208, 210, 241
right to life 2–3, 14
African human rights system 228,
229
European human rights system
140–42, 143–4, 148
human rights violation 241, 242
Inter-American human rights system
171, 178, 182, 183–4, 196,
201, 206, 208
and UN Human Rights Committee
108, 256
right to non-discrimination 171, 172
right to privacy 137–40, 146, 183, 184,
186, 189, 190, 192, 216, 241, 242
right to protection of the family unit 6, 7,
171, 172, 226–7
rights of the child 192–3, 196, 201–2
Rimmer, S. 55, 56, 84
risk assessment
European human rights system,
domestic violence 130, 145,
151, 152–4, 156
human rights violation, female
social groups 247–8
Inter-American human rights system
174–5
Inter-American human rights
system, state passivity 194–5,
198–9, 203–4, 207–8
state responsibility issues 278–84,
279–81
Romania, cases see under European
Court of Human Rights (ECtHR)
Romany, C. 6, 29, 30, 31, 117, 164, 250,
271
Russell, D. 21, 54, 55, 249, 255
Russia
cases see under European Court
of Human Rights (ECtHR);
UN Convention on the
Elimination of Discrimination
Against Women (CEDAW)
decriminalization of domestic
violence 291, 293
Rwanda 39–40
Tribunal see International Criminal
Tribunal for Rwanda
Saidel, R. 85, 89
Salgado, E. 69, 83, 86
Sarkin, J. 1, 240, 266, 269, 277
Schabas, W. 53, 56, 58, 60, 61, 63, 76,
97, 100, 101
secondary victims, role of, European
human rights system, domestic
violence 150–52, 154–6
Sedgwick, J. 48, 49, 83
Segato, R. 55, 80, 198, 261, 266
severe violence
European human rights system
135–7, 139, 146–9
as human rights violation see human
rights violation, severe
violence
Inter-American human rights system
172–4
and state responsibility issues 290,
292
see also torture
sex definition 14–15
sexual contract 30
sexual exploitation and murder 15–17
sexual harassment, African human rights
system 230–31
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316 Conceptualizing femicide as a human rights violation
sexual massacres and mass rapes,
Inter-American human rights
system 180–82
sexual slavery 17–19
African human rights system 226
crimes against humanity 68–74, 70,
75–6
and genocide, femicide as 91, 102
human rights violation 242, 243,
250, 251–3, 254, 255, 259–60
Inter-American human rights system
210–11
Nigeria, Boko Haram abductions
and enslavement 5, 19–20,
55–6, 61, 76, 102, 248, 279
UN Convention on the Elimination
of Discrimination Against
Women (CEDAW) 114
see also forced marriage; rape
sexual violence 41–50
abortion as 115, 116
elimination focus 31–2
European human rights system,
rape 127, 128, 131, 132, 135,
136–7, 138–9, 145, 156–64
and genocide, femicide as 82–3,
84–8, 89, 90–91, 92, 100, 101
human rights violation 251–3
Inter-American human rights system
169, 171
international humanitarian law
(IHL) 38, 44–5, 46, 47–8,
49–50
laws of war 40, 41–3
right to be free from violence 184
in state custody see Inter-American
human rights system, sexual
violence in state custody
see also degrading treatment;
domestic violence; rape;
torture, rape as
Sierra Leone see Special Court for Sierra
Leone (SCSL)
Sijniensky, R. 58, 243, 278, 282
Simmons, B. 31–2, 109, 111
Sjöholm, M. 9, 28, 129, 130, 136, 138,
144, 146, 160, 165, 166, 234, 262
Slovakia, cases see under European
Court of Human Rights (ECtHR)
slow-death measures 21
and domestic violence 142, 155–6
and genocide 83–4, 88–9
and human rights violations 255–6
social class issues, Inter-American
human rights system 193–4, 198,
206–7
social contexts 15–20
social control, Inter-American human
rights system, sexual torture and
rape 217–19
social destruction
and genocide, femicide as 101–2,
103
and human rights violations 256–65
see also degrading treatment
social groups, targeted, and state
responsibility issues 281–2
Sosa, L. 9, 170, 194, 247
South Africa, Jezile v. S and Others 226,
229
Spain
CEDAW, Gonzalez Carreño v.
Spain 122–3, 125, 126, 155,
283
ECtHR, Gonzalez Carreño v. Spain
119, 155, 255
Special Court for Sierra Leone (SCSL)
69–70, 252
Prosecutor v. Brima 70, 74–5
Prosecutor v. Sesay, Kallon and
Gbao 70, 252
Spousal Assault Risk Assessment
(SARA) 284
Sri Lanka, Tamil Liberation Tigers 39
state actors
European human rights system, rape
157–9
Inter-American human rights system
215–19
Inter-American human rights
system, sexual torture and
rape 212
state custody, sexual violence in see
Inter-American human rights
system, sexual violence in state
custody
state passivity see Inter-American human
rights system, state passivity
state responsibility
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317
Index
African human rights system 226,
230–31, 234–5
domestic criminal law 24–7
domestic implementation concerns
13–14
European human rights system,
domestic violence 143–4,
145, 146–7, 148–9, 154
human rights violations 266
Inter-American human rights
system 169, 173, 175–6, 178,
179–82, 211–14, 218
laws of war 41
UN Convention on the Elimination
of Discrimination Against
Women (CEDAW) 117–18,
119–25
state responsibility issues 29–30, 269–97
abduction/kidnapping 274-6
see also Inter-American Court of
Human Rights, Velásquez
Rodríguez v. Honduras
acid attacks 165, 253, 270, 286
active and passive conduct 270–71
attribution 194, 203, 272–7, 280,
284
authorities’ knowledge of real and
immediate risk to the life
276-7, 278
see also European Court of Human
Rights (ECtHR), Osman v.
UK
customary international law (CIL)
and gender-based violence
272, 293
domestic violence 282–4, 291, 292,
293–4
domestic violence, indicators 284
enforced disappearances cases
against social groups/political
activists/journalists 279–80
female genital mutilation (FGM)
271, 284, 285, 293
forced marriage 282, 284, 285–6,
293
honor-based killings 284
and international financial assistance
291
NGO involvement 287, 288, 290,
291
non-state actors 271, 274, 276,
283–4
omissions as wrongful conduct
270–72
preventive duties 275–6
private persons committing acts of
femicide 271
prohibition of torture 272
rape 285, 292
right of access to justice/fair trial
272
right to be free from gender-based
violence 272
right to life 272
and severity of violence (torture
level) 290, 292
structural violence against an
identifiable female social
group 287
unwilling and unable states 290–91
state responsibility issues, ending
impunity for femicide 277–96
abduction and forced marriage 279
group-related risk 279–81
and human rights violation 265–6
preventive measures 288–96
preventive measures, budgetary
measures 295–6
preventive measures, legal
framework 291–4
preventive measures, policy
measures 294–5
real and immediate risk 278–84
recurring risks 282–4
state awareness 285–8
state contribution 284–5
widespread risks and targeted social
groups 281–2
structural inequality
human rights violations see human
rights violations, structural
inequality issues
UN Convention on the Elimination
of Discrimination Against
Women (CEDAW) 113,
256–7, 287
structural violence against an identifiable
female social group 287
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318 Conceptualizing femicide as a human rights violation
substantive equality versus formal
equality approach, UN
Convention on the Elimination of
Discrimination Against Women
(CEDAW) 112–13, 264
Swartz, O. 52, 69, 83, 251
Switzerland
domestic violence 4
UN Convention Against Torture
(CAT), V.L. v. Switzerland
173
Syria 5, 38–9
Tamale, S. 12, 31, 264
three-prong test, Inter-American human
rights system 212–13
time-barred cases, European human
rights system 159
Toledo, P. 25, 27
tolerance of violence against women,
Inter-American human rights
system 172
torture
human rights violations 242
Inter-American human rights system
173, 192
prohibition 3, 6–7, 14, 192, 272
right to be free from 184, 189, 210,
241
severity, and state responsibility
issues 290, 292
state responsibility issues 272, 282,
290
UN Convention on the Elimination
of Discrimination Against
Women (CEDAW) 116
see also severe violence
torture, rape as
European human rights system
see European human rights
system, rape
Inter-American human rights system
see Inter-American human
rights system, sexual torture
and rape
Inter-American human rights
system, military violence
against indigenous females
189–90, 192
Inter-American human rights
system, sexual violence in
state custody 183, 184–5,
186–7
Inter-American human rights
system, state passivity 200
see also rape; sexual violence
tradition
harmful practices, African human
rights system 225–6, 228–9,
232–5
UN Convention on the Elimination
of Discrimination Against
Women (CEDAW) 113–14
Turkey, cases see under European Court
of Human Rights (ECtHR)
UK, cases see under European Court of
Human Rights (ECtHR)
Ukraine, ECtHR, Levchuk v. Ukraine
130, 138, 142
UN Commission on the Status of Women
(CSW) 109
UN Convention Against Torture (CAT)
7, 136–7, 212
V.L. v. Switzerland 173
UN Convention on the Elimination of
Discrimination Against Women
(CEDAW) 16, 17, 31–2, 97, 105,
107–26, 129, 144, 170, 172, 196,
203, 294
child marriage 109
compulsory sterilization and
abortion 115, 116
death threats 119, 124
degrading treatment 115, 116
domestic violence 115, 119–20,
122–5, 283, 293
dowry-related killings 110, 112, 115
female genital mutilation (FGM)
112, 115
forced marriage 114, 115, 117,
233–4
gender-based violence 109–10,
111–12, 114–17, 120, 187,
193, 207, 241, 244, 250–51,
272
and human rights 107–8, 115–16,
267
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319
Index
human trafficking, exploitation and
prostitution 114
mental harm and threat of harm 115
non-state actors 117–18
preventive obligations 117–18
rape 116, 117, 120–22
rape in marriage 111
sexual slavery and enforced
prostitution 114
state responsibility recognition
117–18, 119–25
structural inequality 113, 256–7, 287
substantive equality versus formal
equality approach 112–13,
264
torture prohibition 116
transformative equality and
traditional roles and patterns
113–14
unequal societies, response to
111–14
UN Convention on the Elimination of
Discrimination Against Women
(CEDAW), complaint cases
118–25
Goekce et al. v. Austria 119–20,
121, 125, 248, 270
Gonzalez Carreño v. Spain 122–3,
125, 126, 155, 283
O.G. v. Russia 123–5, 291
Vertido v. the Philippines 120–22,
126, 251, 292
UN Convention on Enforced
Disappearance 28
UN Declaration on the Elimination
of Violence against Women
(DEVAW) 109–10, 231, 256, 265,
292
UN General Assembly (UNGA) 23, 98,
109, 110, 167
UN Genocide Convention 79, 82, 83–4,
91, 93, 95, 96, 97, 266
UN Human Rights Committee 108, 256
UN Latin American Model Protocol 23
UN Security Council 110
UN Special Rapporteur on the Rights of
Women 168
UN Special Rapporteur on Violence
Against Women 17, 23, 110, 133,
165
UN World Conferences’ 1995 Beijing
Declaration and Platform for
Action 110
unequal societies, response to, UN
Convention on the Elimination of
Discrimination Against Women
(CEDAW) 111–14
unequal treatment based on sex,
European human rights system
133–5, 144–5, 149
Universal Declaration of Human Rights
(UDHR) 5, 33, 167
non-discrimination clause 108
universal treaty on femicide, need for
267
unwilling and unable states, state
responsibility issues 290–91
Uruguay, anti-genocide legislation 94
US
Civil War and Lieber Code 42–3, 44
federal guidelines on domestic
violence 177
IACtHR, Lenahan v. the United
States 167, 176–7, 178–80
Native American children, forced
transfer 90
Town of Castle Rockv. Jessica
Gonzales 179
Venezuela, IACtHR, López Soto v.
Venezuela 168, 172, 173–4, 175,
200, 209–15, 220, 252, 253, 254,
255, 259, 270, 283
Verchick, R. 2, 10, 128
Vermeulen, M. 271, 280
Vienna Convention on the Law of
Treaties (VCLT) 94–6
Viljoen, F. 226, 227, 229
violence
sexual see sexual violence
widespread see widespread violence
Von Joeden-Forgey, E. 83, 84
waiting period for missing persons
and investigation delays,
Inter-American human rights
system 195–6, 199, 201, 204,
205–6, 208–10
war, laws of see laws of war
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320 Conceptualizing femicide as a human rights violation
Warren, M. 80, 98–9, 102
Weinberger, L. 154, 156
Werle, G. 92, 93, 95, 96, 97
widespread risk consideration
Inter-American human rights
system, state passivity 194–5,
198–9, 203–4, 207–8
targeted social groups, and state
responsibility issues 281–2
see also risk assessment
widespread violence
crimes against humanity 58, 60
human rights violation 242–6, 252
Wimmer, S. 19, 249
witch craze 4
women and children as equals, African
human rights system 226
women’s rights movements and future
direction 266–8
Wood, E. 39, 41, 51
World Conference on Women, Beijing
Platform for Action 125, 265
World Health Organization (WHO) 22
World War II, Nazi atrocities, crimes
against humanity 81, 82, 84–5, 89,
92, 96, 100
Yugoslavia see International Criminal
Tribunal for the former
Yugoslavia (ICTY)
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