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There is one form of gender-specific custody used especially in Asian countries
(Bangladesh, India, Sri Lanka, China) called ‘Safe custody’ or ‘Re-education custody’ or
‘labour camp’, which are being used as a mechanism of ‘protection’ of women and
children who have no other place to go.It includes victims of trafficking, abducted women,
refugees, women rescued from brothels, women who left their homes due to domestic
violence. They are kept there as captives. To detain such women is unjust and opens the
door to numerous abuses. It is of course positive that the state provides shelter for people
who otherwise would be on the streets. But so-called ‘Safe custody’ places are often
dangerous places where women are abused or even killed (Special Rapporteur on
Violence 1998).
Geographically isolated camps, overcroweded camps, poor services and facilities, poorly lit
and unlocked sleeping and washing facilities facilitate sexual violence. Furthermore lack of
police protection, general lawlessness, such as officials being bribed for not investigating
complaints or themselves involved in abuse and exploitation, leave women in these camps
without real protection.
State-responsibility
Does the State have the responsibility for violations of women’s human rights in medical
settings and detention –like situations?
As interesting differentiation is made in the UN declaration in the third context of
Gender-violence, between State-perpetrated and State-condoned violence. The
Declaration does not define clearly the difference between these two action patterns.
However, it would not be wrong to assume that State-perpetrated violence may clearly fall
under the general Torture Convention, whereas the concept of State-condoned violence
has an undifferentiated status.
An example: Police officers witness passively atrocities committed by a group of citizens
against a minority group in a European country. The police itself does not perpetrate
violence but its passivity singalises allowance to the crowd.
The concept of “condoned violence” is useful in describing the intriguing cases where a
violation in a given State may be strictly prohibited by law – thus is illegal – but is
widespread in the practice of State officials and met with impunity. This is the case with
torture occurring in numerous countries despite ratification of the Convention and
Prohibition by law.
The term condone means to: “overlook, disregard, let pass, turn a blind eye to, excuse,
Pardon, forgive, make allowances for, forget. Opposites to condone are: Condemn,
Punish” (Concise Oxford Thesaurus. 1995) Oxford University Press, Market House Books
1995. Another meaning is according to the Cambridge Dictionary (1995) “the approval of
a behaviour (that some people consider wrong) so that such behaviour is encouraged in
the future.”
It is evident that the behaviours included in the concepts ‘perpetrated’ and ‘condoned’
demand different action. The perpetrating State is not necessarily in conflict with itself. It
tortures and sanctions the torture, granting impunity to the perpetrators. Condoning a
conduct implies a conflict where the State (agents on different levels) chooses sides
Against legality and ensures an illegal impunity for the perpetrators but does not like to
admit it.
However, it would after my opinion be wrong to assume that the role of the State
psychologically is active in perpetration but passive in condoning. Condoning an illegal
atrocity is an active process, as is perpetrating it. It is active in the sense that it includes
knowledge about the violation, many times even the presence of State agents, evaluation
of the severity and the results of the violation, the decision about whether to condone or to
punish, and finally it also has a purpose. Not necessarily a vicious one. The reasons for
passivity might be lack of resources to intervene, lack of expertise, conflicts of interests
etc.
The basis for State-condoned violence against women might also include the purpose to
maintain gender-discrimination. The Gender discrimination might be unlawful = Rape is
strictly prohibited but can still be ethically tolerated and therefore legitimate = is condoned
and punished minimally.
In such instances the state is, according to the Special Rapporteur on violence against
women, directly responsible for violations of human rights of these women kept in the
camps on behalf of the State.
The responsibility follows from the ratification of international Law that imposes a duty
upon states to respect and ensure respect for human rights laws, including the law to
prevent and investigate violations. It includes the duty to take appropriate action against
violators and to afford remedies and reparation to those who have been injured as a
consequence of such violations. (P.18 E/CN.4/2000/68).
Of course, as mentioned before, one thing is Human rights law and another is human
rights practice. The enforcement of international laws is very different from country to
country.
With respect to State responsibility it seems that the legal concept due diligence standard
is gaining international prominenace. (Benniinger-Budel & Lacroix 1998, p.33). States
must in ‘due diligence standard’ employ all means of legal, political, administrative and
cultural nature to promote the protection of Human Rights. The principle of due diligence
standard has been mentioned in reports of the Special Rapporteur on Torture, on the use
of mercenaries as a means of violating human rights, reports of the Secretary General, by treaty bodies as CEDAW, the Committee on the Elimination of All forms of Racial
Discrimination, by expert group meetings, in resolutions and Declarations particularly on
violence against women and writings by publicists.
In concluding: Sexual torture and sexual violence against women is widespread during
armed conflicts, in custodial and semi-custodial settings. Prevention of torture of female
suspects and detainees is mandatory. I will return to the subject of prevention. In the next
Section I will analyse the experience of torture relationship and the psychological
consequences of torture.
Posted on 2002-11-11
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