Convention on Preventing and Combatting Violence Against Women and Domestic Violence (Istanbul Convention)

System: European

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I. Introduction

The Convention is comprised of preamble paragraphs, 12 Chapters and 81 articles. It entered into force 14 August 2014 and remains open for signature by member states of the Council of Europe, non-member states which have participated in its elaboration as well as the European Union.

The purpose of this fact sheet is to explain how the important topic of “violence against women” is being used as a platform to incorporate a larger ideological agenda with a view to transforming culture, traditions and religious belief through the promotion of “gender ideology” inclusive of abortion as well as subjective attractions, feelings and lifestyles as “human rights.”

II. Historical Considerations

The term “gender” has a specific connotation in the Istanbul Convention, which fully embraces gender feminism inclusive of a larger ideological agenda. To fully understand the debate as regards the term “gender” one should have a general understanding of the controversy surrounding the issue within the United Nations System where the term was first used in the mid 1990’s. Please see the attached memorandum (Attachment I), wherein it explains how and why the term gender as a social construct has been rejected by the majority of UN Member States.

III. Istanbul Convention: 10 Problems

1. sex, gender, sexual orientation, and gender identity

This Convention characterizes gender as a “social construct” under a section of the Convention devoted to “definitions,” however, the term “social construct” is not further delineated. In particular, article 3 (c) provides: “ ‘gender’ shall mean the socially constructed roles, behaviours, activities and attributes that a given society considers appropriate for women and men.” However, one may very well query: what is a socially constructed role – motherhood?; what is a socially constructed attribute – femininity?

The fact that these questions may arise is supported by article 4.3 which discusses non-discrimination and provides a list in the following way: “sex, gender,… sexual orientation, gender identity….” Such a list does not exist in treaties within the United Nations System, because together with the social construct definition of “gender”, “sexual orientation” and “gender identity,” such a list would solidify a greater ideological platform concerning subjective attractions as human rights, which has not been accepted by UN members States. In addition, the terms “sexual orientation” and “gender identity” have not been defined in a document that binds UN member States.

2. “Violence against Women and domestic violence”

This expression comes from the title of the Istanbul Convention, however, one would think that if we were only dealing with violence against women and girls, the expression should read “violence against women, including domestic violence.” Indeed, article 2.1 provides: “ This Convention shall apply to all forms of violence against women, including domestic violence, which affects women disproportionately.” However, each expression “Violence against Women 1and domestic violence”2 is defined in the Istanbul Convention.

The former term refers to acts of violence against women while the latter notion refers to acts of violence against “victims” within a certain setting, “family or domestic unit,” or between certain persons in particular relationships, “former or current spouses or partners”. The term “victim” is defined as “any natural person, who is the subject to the conduct” and the term “women” includes girls under the age of 18. The “victim” could be a man or boy or one of the 52 genders that one currently finds on facebook.

3. Missing language about Violence Against the unborn child, especially girls

Notwithstanding the increasing levels of abortions of girl babies and/or their murder post birth and related to issues concerning human trafficking in girls and women, especially in those societies where the ratio of male to female is terribly unbalanced, the document makes no strides in this area.

For example, in the United States, 35 states currently recognize the “unborn child” or “the fetus” as a homicide victim. These laws do not apply to legally induced abortion. There is an obvious contradiction between the two sets of laws, but nonetheless, the issue of “fetal homicide” (in certain cases) has not been ignored.

4. The Scope of the Convention: Elimination of all forms of Discrimination

One of the purposes of the Convention is to contribute to the elimination of all forms of discrimination (article 1.b) and article 4 is devoted to the grounds of non-discrimination. As previously mentioned, it includes the controversial list of terms “sex, gender…sexual orientation, gender identity”. This means that the Convention has an extremely broad approach that goes well beyond stopping violence.

Indeed, the comprehensive nature of the treaty is undoubtedly intended to be used as a tool or mechanism for greater cultural change on all matters pertaining to “gender ideology”. In this regard, the participation encouraged by non-governmental organizations, national human rights institutions, regional human rights institutions together with the involvement of national parliaments (article 70) is a more aggressive attempt to bring changes to culture, traditions and religions as well as to civil and criminal laws, through one document and one monitoring committee.

5. Elimination of the foundation of human rights based on a universal human nature

The “social construct” theory of gender together with the advancement of the new and undefined terms “sexual orientation” and “gender identity” call into question the very foundation of human rights, based as it is, on the inherent and equal dignity of every human being, a human person, male and female, endowed with reason and conscience as well as freedom and responsibility (art. 1 UDHR; See also the preamble paras. of UDHR). The intention to eliminate this common sense source of human rights may be inferred from the missing reference to the bedrock document of international human rights, namely the Universal Declaration of Human Rights (UDHR), which is the first and only document to have considered the source of human rights and articulated essential characteristics of the human person.

With the missing reference to the anthropological foundations in the UDHR and attention to principles of equality and non-discrimination in article 6, the new bedrock for human rights has been set and will be determined by GREVIO.

6. Reservations must be constantly justified by the State Party

The possibility for entering reservations is very limited per article 78. Therefore, reservations on the legal interpretation of the definition of “gender” in article 3 and the inclusion of “gender”, “sexual orientation” and “gender identity” in article 4.3 cannot be entered. In addition, any valid reservation according to article 79 of the Convention is renewed every five years and with the onus on the State Party to notify of its intention to maintain the reservations, and give justifications for them to GREVIO, upon request. By contrast, articles 19-23 of the 1969 Vienna Convention on the Law of Treaties provide a very different regime as regards reservations and one which gives much respect to the Sovereignty of State Parties.3

7. Comprehensive effort to change culture, custom, religion and tradition

According to article 12.5 “Parties shall ensure that culture, custom, religion and tradition or co-called “honor” shall not be considered as justifications for any acts of violence covered by the scope of the Convention.” Within the United Nations System, because violence may be defined broadly to include psychological pressure and so forth, agreed upon language has focused on “harmful traditional practices”.4 Obviously, this new wording may be used to promote radical ideologies which could reject marriage between one woman and one man as a form of patriarchal violence, on the one hand, or as a type of heterosexual elitism, on the other hand. Similar concerns are raised in article 12.1 where State Parties are obliged to “promote changes in the social and cultural patterns of behaviour of women and men with a view to eradicating prejudices, customs and traditions.” Again there is missing language as regards “harmful traditional practices” and therefore, one might well query: whether marriage between one man and one woman is a tradition that is born of prejudices or causes them.

8. The Monitoring Mechanism (GREVIO) that will Dictate Culture Changes

Article 66 creates a body of independent experts: the Group of Experts on Action against Violence against Women and Domestic Violence (GREVIO), which in accordance with article 68, will evaluate the Report of a State Party prepared in response to the questionnaire prepared by GREVIO taking into consideration a broad range of informational sources (article 68.5-8). Moreover, GREVIO in co-operation with national authorities may also organize country visits (article 68.9), conduct inquiries (article 68.14) and make general recommendations on implementation of the Convention (article 69).

It is noteworthy that treaty bodies established under the 10 core treaties negotiated within the United Nations Systems have proven to be extremely problematic. One need only consider the ongoing treaty reform process within the United Nations System5 and the statements by State Parties on the topic.6 In addition, one need

only peruse the recent statement filed by the Holy See with the Committee on the Rights of the Child, which complained, among other things, about the treaty body’s inaccurate statements; lack of impartiality; failure to respect the text of treaties; creation of new terms and principles; lack of respect for religious freedom and general principles of international law; and promotion of negative stereotyping and manifestations of intolerance against members of the Catholic religion.7

9. Missing Language about the Rights and Duties of Parents

According to article 14, State Parties shall insert “non-stereotyped gender roles” into the formal and informal education settings. However, no mention is made of the prior rights of parents to educate their child according to their moral and religious conventions as found in the International Bill of Human Rights.

10. Competing notions of Gender in the Istanbul Convention

Article 66.2 requires that “gender” should be considered when composing GREVIO, but given the definition of “gender” in article 3.c, the reference to “gender” in this context makes little sense. In other words, when considering membership, does one consider the “socially constructed roles, behaviours, activities and attributes” in a society where a given candidate resides? One might very well query whether this article was drafted with another definition of “gender” in mind, namely that used as a synonym for male and female? (see attached memo).

This idea of gender as a synonym for male and female seems to be also at the basis of the term “gender-sensitive policies”, in article 6, in regard to the implementation of policies of equality between women and men.

In addition, if one considers the definition of “gender” in the Rome Statute of the International Criminal Court, it is firmly based on male and female and does not juxtapose “sex” with “gender” or include terms such as “sexual orientation” and “gender identity” (see attached memorandum). Indeed, the “social construct” theory of gender has been consistently rejected within the United Nations system during Beijing 1995 as well as +5, +10, +15 reviews due to its radical nature (see attached memorandum). However, the Rome Statute of the International Criminal Court (2002) is cited in the preamble of the Convention, without qualification as to how the different meanings of gender will be reconciled between gender as defined in the Rome Statute and the various uses of “gender” in the Istanbul Convention.


20/10/2014


[1] “violence against women” is understood as a violation of human rights and a form of discrimination against women and shall mean 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;

[2] “domestic violence” shall mean all 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;

[3] 1969 Vienna Convention on the Law of Treaties, available at http://legal.un.org/ilc/texts/instruments/english/conventions/1_1_1969.pdf (last access 20/10/2014).

[4]  United Nations, Fact Sheet 23: Harmful Traditional Practices Affecting the Health of Women and Children available at http://www.ohchr.org/documents/publications/factsheet23en.pdf (By way of explanation, a non-binding fact sheet prepared by one of the administrative organs within the United Nations describes the commonly used phraseology in a fairly balanced way: “Traditional cultural practices reflect values and beliefs held by members of a community for periods often spanning generations. Every social grouping in the world has specific traditional cultural practices and beliefs, some of which are beneficial to all members, while others are harmful to a specific group, such as women…. they are all consequences of the value placed on women and the girl child by society. They persist in an environment where women and the girl child have unequal access to education, wealth, health and employment.”)

[5] OHCHR, Treaty Body Strengthening: Reports available at http://www.ohchr.org/EN/HRBodies/HRTD/Pages/TBStrengthening.aspx (last accessed 20/10/2014)

[6] OHCHR, Treaty Body Strengthening; submissions by States parties, available at http://www.ohchr.org/EN/HRBodies/HRTD/Pages/StatesPartiesSubmissions.aspx (last accessed 20/10/2014)

[7] Comments of the Holy See on the Concluding Observations of the Committee on the Rights of the Child available at http://www.vatican.va/roman_curia/secretariat_state/2014/documents/rc-seg-st-20140205_concluding-observations-rights-child_en.html (last accessed 20/10/2014)

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