Warning: this article contains graphic descriptions of sexual abuse and torture. Relevant sections are marked and can be skipped by sensitive readers.
“I was 24 years old, it was a long time ago. But I can tell you I continue suffering from the result of my torture, incest and trafficking to this day”. These were the words of Jeanette Westbrook, a human trafficking survivor and now defender, who bravely shared her story at a panel on Non-State Torture (NST) in New York last month. Westbrook and women like her are telling their stories because abuse committed in the private sphere is not yet considered an international human rights violation, thus exempting the state from any responsibility in these acts.
Currently, human rights violations are only considered as such when performed by State actors, such as the police or the military. When similar treatment befalls people by the hand of private individuals, it is considered a human rights abuse, and not a violation, and cannot be brought to an international tribunal.
Even when the state is involved, for example, if a woman is tortured by her partner after filing a complaint with police which gets ignored, the case can be brought to an international tribunal only if the country in which the abuse takes place has signed one of three international regional treaties.
What is Non-State Torture?
NST is defined as “torture committed in the private or domestic sphere.” This includes incest, ritual abuse-torture (such as acid burning and FGM) and commercial-based torture (such as trafficking, torture porn and prostitution), but is broader than the common understanding of torture as State-sponsored punishment.
The UN Convention Against Torture (CAT), has a definition for torture that includes any intentional act whereby severe physical or mental pain and suffering is inflicted for purposes such as punishment, intimidation, coercion, or on a discriminatory basis, and the State must be aware, consent or acquiesce to such acts. international law is also unclear on whether NST falls under the definition of torture. Non-State Torture activists maintain that sexual exploitation, incest and other forms of violence against women should be recognised as torture and human rights violations, even though there is no involvement of the state.
What is at stake?
Though there is an instinct to downplay the gravity of NST compared to a dictatorship’s torture of dissidents or mass rape as a weapon of war, the testimony of those who have been through it shows us that be it state-sponsored or not, the abuse and sexualization of torture remain the same for women.
Two extracts follow, recounting the experiences of two women: the first is a victim of sexual violence during the conflict in Kosovo, the second is a victim of incest who was sold into prostitution.
**Warning: the following passages contain graphic imagery of sexual abuse and torture.
“There were three or four rooms in that house. It was a two-story house. They would point the finger and order you to enter (…) they all wore masks so I could not recognize any of them. (…) And then he said, excuse my language, “These (…) women are good for sucking it.” (…) And then they tore my clothes, they ripped them lengthwise. I started to scream and cry; I cried and screamed. (…) I just cannot describe what we went through. They would not leave us in one place for over three days, moving us from one place to another. That sexual violence was worse than death. I’d rather they killed us, slaughtered us to death, decapitated us, or mutilated us by cutting an arm or a leg, whatever, but not have us experience that. That was horrible.”
“(…) described being electric shocked, beaten, cut, and burned with cigarettes and candles, and having hot light bulbs forced into her vagina for more times than she can record. Always terrified, she reported being forced to swallow drugs that left her paralyzed ,(…) raped, and tortured. Caged, suspended by her limbs with a looped cord around her neck, and stretched on a torture rack in the little room in (…) basement, (…) also speaks of being forced to cut herself and forced to endure bestiality.”
If current international law were followed, only the first woman would be considered to have endured a human rights violation which concerns the UN. The second is seen merely as the victim of a crime enshrined in domestic legislation, and the only way for her to report her torture to an international human rights body would be to prove the State was somehow involved.
Human rights violations also happen at home
Though the international human rights system privileges human rights violations that happen in the public sphere, almost 60% of murders of women are committed by partners or family members. Being perpetrated privately, these acts are not usually considered human rights violations, but without proper prosecution, prevention and protection, States are actively enabling such acts and failing to protect the human rights of the victims.
Sexual abuse and exploitation happen on a massive and systematic scale worldwide, but specific cases of abuse and exploitation are still considered to be disconnected from each other: one thing is the daughter abused by her father, another thing is the woman forced to prostitute herself by a pimp, another thing is a girl raped by a mob.
Most human rights bodies consider that a State might prevent one situation from happening, but not all of them; the same way a State would not be responsible for every robbery or fraud committed by private individuals, it cannot be responsible for stopping all forms of violence against women. Without a binding human rights treaty tackling all forms of violence against women, it is very hard to hold states accountable for failing to correctly address this type of violence.
Why the state should be responsible
In all these cases, systematic problems recur such as law enforcement not believing victims, poorly executed prosecution, negligent protection of the victims and victim-blaming and shaming.
Whether in rural India or Lisbon, victims of sexual exploitation and abuse are constantly being robbed of their human rights by the offenders and, later, by the State. In fact, in terms of long-lasting impact, the criminal justice system can do the most damage, drawing out the suffering of the victim for months and years with bureaucratic procedures, whilst perpetrators often end up with no conviction or light sentencing.
While sexual violence in conflict has been gaining more attention in recent years (though there is still much to be done, as the negotiations for the latest UN Resolution demonstrate) it is still unclear how violence against women can be fought through international human rights treaties.
Indeed, the only Human Rights Conventions that specifically refer to violence against women are regional, ratified by less than half of the UN Member states. Activists are thus advocating, through the Every Woman Treaty campaign, for a global human rights treaty, that can address all forms of violence against women. This would recognize different forms of sexual violence and would cover the life cycle of all women (from childhood to old age), vulnerable groups, prevention and implementation.
Recognizing the experience of victims of “private” forms of violence against women as non-state torture would mean finally considering that what happens in the private sphere is just as political as what happens in the public sphere. “The personal is political” has been a feminist motto for decades – it’s time international human law embraced it as well.