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Council of Europe Convention on preventing and combating violence against women and domestic violence-Part 03

  7/17/2013


Chapter I – Purposes, definitions, equality and non-discrimination, general obligations

Article 1 – Purposes of the Convention

30. Paragraph 1 sets out the purposes of the Convention. Paragraph 1 (a) states as the specific purpose of the Convention the protection of women against all forms of violence, as well as the prevention, prosecution and elimination of violence against women and domestic violence. 
31. In line with the recognition contained in the preamble that there is a link between eradicating violence against women and achieving gender equality in law and in fact , paragraph 1 (b) specifies that the Convention will contribute to the elimination of all forms of discrimination against women and promote substantive equality between women and men. The drafters considered it essential to clearly state this as one of the purposes of the Convention. 
32. Paragraph 1 (c) reflects the need for a comprehensive approach to the protection of and assistance to all victims of violence against women and domestic violence. The forms of violence covered by the scope of this Convention have devastating consequences on victims. It is necessary to design a comprehensive framework to not only ensure their further safety, re-establish their physical and psychological health but to also enable them to re-build their lives. This framework should be grounded on a human-rights based approach.
33. Paragraph 1 (d) deals with international co-operation, about which Chapter VIII contains details. International co-operation is not confined to legal co-operation in criminal and civil matters but extends to the exchange of information to prevent criminal offences established under the Convention and to ensure protection from immediate harm. 
34. Eliminating violence requires extensive multi-agency co-operation as part of an integrated approach. Ensuring this approach to preventing and combating violence is stated as the final purpose of the Convention in Paragraph 1 (e). It is further developed in Chapter II and other sections of the Convention. 
35. Paragraph 2 underlines that, in order to ensure the effective implementation of its provisions by the Parties, the Convention sets up a special monitoring mechanism. This is a means of ensuring Parties’ compliance with the Convention and is a guarantee of the Convention’s long-term effectiveness (see comments on Chapter IX).

Article 2 – Scope of the Convention
36. Paragraph 1 states that the focus of this Convention is on all forms of violence against women which includes domestic violence committed against women. The drafters considered it important to emphasise that the majority of victims of domestic violence are women. 
37. The provision contained in paragraph 2 on the scope of the Convention encourages Parties to apply this Convention also to domestic violence committed against men and children. It is therefore up to the Parties to decide whether to extend the applicability of the Convention to these victims. They may do so in the manner they consider the most appropriate, taking notably account of the specific national situation and of the developments in their society. However, with a view to keeping the focus on the various forms of gender-based violence committed against women, paragraph 2 requires Parties to pay particular attention to victims of this form of violence when implementing the Convention. This means that gender-based violence against women, in its various manifestations, one of which is domestic violence, must lie at the heart of all measures taken in implementation of the Convention.
38. The basic principles of international humanitarian law and the Rome Statute of the International Criminal Court, which are referred to in the Preamble to the Convention, affirm individual criminal responsibility under international law for violence that occurs primarily (but not exclusively) during armed conflict. Article 7 of the Rome Statute (crimes against humanity committed as part of a widespread or systematic attack directed against any civilian population) and Article 8 (war crimes) include crimes of violence committed largely against women such as rape and sexual violence. However, the forms of violence covered by the present Convention do not cease during armed conflict or periods of occupation. Paragraph 3 therefore provides for the continued applicability of the Convention during armed conflict as complementary to the principles of international humanitarian law and international criminal law. 

Article 3 – Definitions
39. Article 3 provides several definitions which are applicable throughout the Convention. 
Definition of “violence against women”
40. The definition of “violence against women” makes clear that, for the purpose of the Convention, violence against women shall be understood to constitute a violation of human rights and a form of discrimination. This is in line with the purpose of the Convention set out in Article 1 (b) and needs to be borne in mind when implementing the Convention. The second part of the definition is the same as contained in Council of Europe Recommendation Rec(2002) 5 of the Committee of Ministers to member states on the protection of women against violence, the CEDAW Committee General Recommendation No. 19 on violence against women (1992), as well as in Article 1 of the United Nations Declaration on the Elimination of All Forms of Violence against Women. The drafters have, however, expanded it to include the notion of “economic harm” which can be related to psychological violence.
Definition of “domestic violence”
41. Article 3 (b) provides a definition of domestic violence that covers acts of physical, sexual, psychological or economic violence between members of the family or domestic unit, irrespective of biological or legal family ties. In line with what is mentioned in paragraph 40, economic violence can be related to psychological violence. Domestic violence includes mainly two types of violence: intimate-partner violence between current or former spouses or partners and inter-generational violence which typically occurs between parents and children. It is a gender neutral definition that encompasses victims and perpetrators of both sexes.
42. Domestic violence as intimate-partner violence includes physical, sexual, psychological or economic violence between current or former spouses as well as current or former partners. It constitutes a form of violence which affects women disproportionately and which is therefore distinctly gendered. Although the term “domestic” may appear to limit the context of where such violence can occur, the drafters recognised that the violence often continues after a relationship has ended and therefore agreed that a joint residence of the victim and perpetrator is not required. Inter-generational domestic violence includes physical, sexual, psychological and economic violence by a person against her or his child or parent (elderly abuse) or such violence between any other two or more family members of different generations. Again, a joint residence of the victim and perpetrator is not required.
Definition of “gender”
43. As the Convention places the obligation to prevent and combat violence against women within the wider framework of achieving equality between women and men, the drafters considered it important to define the term “gender”. In the context of this Convention, the term gender, based on the two sexes, male and female, explains that there are also socially constructed roles, behaviours, activities and attributes that a given society considers appropriate for women and men. Research has shown that certain roles or stereotypes reproduce unwanted and harmful practices and contribute to make violence against women acceptable. To overcome such gender roles, Article 12 (1) frames the eradication of prejudices, customs, traditions and other practices which are based on the idea of the inferiority of women or on stereotyped gender roles as a general obligation to prevent violence. Elsewhere, the Convention calls for a gendered understanding of violence against women and domestic violence as a basis for all measures to protect and support victims. This means that these forms of violence need to be addressed in the context of the prevailing inequality between women and men, existing stereotypes, gender roles and discrimination against women in order to adequately respond to the complexity of the phenomenon. The term “gender” under this definition is not intended as a replacement for the terms “women” and “men” used in the Convention.
Definition of “gender-based violence against women”
44. The term “gender-based violence against women” is used throughout the Convention and refers to violence that is directed against a woman because she is a woman or that affects women disproportionately. It differs from other types of violence in that the victim’s gender is the primary motive for the acts of violence described under lit.a. In other words, gender-based violence refers to any harm that is perpetrated against a woman and that is both the cause and the result of unequal power relations based on perceived differences between women and men that lead to women’s subordinate status in both the private and public spheres. This type of violence is deeply rooted in the social and cultural structures, norms and values that govern society, and is often perpetuated by a culture of denial and silence. The use of the expression “gender-based violence against women” in this Convention is understood as equivalent to the expression “gender-based violence” used in the CEDAW Committee General Recommendation No. 19 on violence against women (1992), the United Nations General Assembly Declaration on the Elimination of Violence against Women (1993) and Recommendation Rec(2002)5 of the Committee of Ministers of the Council of Europe to member states on the protection of women against violence (2002). This expression is to be understood as aimed at protecting women from violence resulting from gender stereotypes, and specifically encompasses women.
Definition of “victim”
45. The Convention contains a large number of references to victims. The term “victim” refers to both victims of violence against women, and victims of domestic violence, as defined in Article 3 (a) and Article 3 (b) respectively. While only women, including girls, can be victims of violence against women, victims of domestic violence may include men and women as well as children. In line with other international human rights treaties, the term “child” shall mean any person under the age of eighteen years. The term “victim” should be understood in accordance with the scope of the Convention. 
Definition of “women”
46. Conscious of the fact that many of the forms of violence covered by the Convention are perpetrated against both women and girls, the drafters did not intend to limit the applicability of the Convention to adult victims only. Lit.f. therefore clearly states that the term “women” includes girls under the age of eighteen years. 
47. This Convention is an agreement between states, which would create obligations only for them. The provisions contained in Articles 3 and 4 do not create any new rights but clarify existing human rights. Any obligations for individuals would follow from such legislative and other measures which Parties adopt in accordance with the Convention.







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