A/HRC/31/57
fail to exercise due diligence obligations, with the “characteristic trait of the offence [being]
found in the nature of the act committed rather than in the status of the person who
committed it”.30 The Special Rapporteur welcomes these developments and finds that the
international humanitarian and criminal law frameworks complement the application of
international human rights law, particularly with regard to conflict situations, wherein the
control typically exercised by States in peacetime is either lacking or has been replaced by
other elements of control, such as insurgent groups or militias.
53.
States’ due diligence obligations to ensure redress remain intact when non-State
actors perpetrate conflict-related sexual violence. Gender-sensitive practices must be
employed when investigating violations during and after the armed conflict. Silence or lack
of resistance cannot be used to imply consent, which furthermore cannot be inferred from
the words or conduct of a victim who was subjected to force, threats, or a coercive
environment (A/HRC/7/3). Comprehensive assistance and reparations programmes in these
contexts often require years to be fully implemented.
F.
Domestic violence
54.
It is estimated that 35 per cent of women worldwide have experienced physical or
sexual intimate-partner or non-partner violence,31 with significantly higher figures reported
in some States. Women and girls can be victims of specific forms of violence at the hands
of their families, for instance in the form of widowhood rites or dowry-related violence,
such as bride burnings or acid attacks (A/HRC/20/16). Victims of domestic violence tend to
be intimidated by continual threats of physical, sexual or other violence and verbal abuse
and may be “effectively manipulated by intermittent kindness” (see E/CN.4/1996/53, para.
47). Fear of further assaults can be sufficiently severe as to cause suffering and anxiety
amounting to inhuman treatment.32
55.
Domestic violence can cause severe physical or mental pain and suffering,
constitutes gender discrimination, and is sometimes perpetrated with the purpose of
eliciting information, punishment or intimidation (E/CN.4/1996/53). Domestic violence
amounts to ill-treatment or torture whenever States acquiesce in the prohibited conduct by
failing to protect victims and prohibited acts, of which they knew or should have known, in
the private sphere (A/HRC/13/39/Add.5). States are internationally responsible for torture
when they fail — by indifference, inaction or prosecutorial or judicial passivity — to
exercise due diligence to protect against such violence or when they legitimize domestic
violence by, for instance, allowing husbands to “chastize” their wives or failing to
criminalize marital rape, acts that could constitute torture.
56.
Societal indifference to or even support for the subordinate status of women,
together with the existence of discriminatory laws and patterns of State failure to punish
perpetrators and protect victims, create conditions under which women may be subjected to
systematic physical and mental suffering, despite their apparent freedom to resist. In this
context, State acquiescence in domestic violence can take many forms, some of which may
be subtly disguised (A/HRC/7/3). States’ condoning of and tolerant attitude towards
30
31
32
See International Criminal Court for the Former Yugoslavia, case No. IT-96-23-T and IT-96-23/1-T,
Prosecutor v. Kunarac et al., judgement of 22 February 2001, para. 495; International Criminal
Tribunal for Rwanda, case No. ICTR-97-20-T, Prosecutor v. Semanza, judgement of 15 May 2003.
United Nations Entity for Gender Equality and the Empowerment of Women (UN-Women), “Facts
and figures: ending violence against women”.
European Court of Human Rights, application No. 3564/11, Eremia v. the Republic of Moldova,
judgement of 28 May.
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