(Routledge Research in Human Rights Law) Ronli Sifris - Reproductive Freedom, Torture and International Human Rights - Challenging The Masculinisation of Torture (2014, Routledge)

Reproductive Freedom, Torture and
International Human Rights
This book contributes to a feminist understanding of international human

rights by examining restrictions on reproductive freedom through the lens
of the right to be free from torture and other cruel, inhuman or degrading
treatment. Ronli Sifris challenges the view that torture only takes place
within the traditional paradigm of interrogation, punishment or intimida-
tion of a detainee, arguing that this traditional construction of the concept
of torture prioritises the experiences of men over the experiences of women
given that the pain and suffering from which women disproportionately
suffer frequently occurs outside this context. She does this by conceptualising
restrictions on women’s reproductive freedom within the framework of the
right to be free from torture.
The book considers the gendered nature of international law and the gender
dimensions of the right to be free from torture. It examines the extension of
the prohibition of torture in recent years to encompass situations beyond the
traditional detainee context (such as rape and female genital mutilation). It
goes on to explore in detail whether denying access to abortion and invol-
untary sterilisation constitute torture or other cruel, inhuman or degrading
treatment under international law. The book looks at whether limitations
on reproductive freedom meet the determining criteria of torture which are:
severe pain or suffering; intentionally inflicted; for a prohibited purpose;
linked in some way to a State official; whether they constitute lawful sanc-
tions; and the importance of the concept of powerlessness. In doing so, the
book also highlights how this right may be applicable to other gender-based
abuses including female genital mutilation, and how this right may be uni-
versally applied to allow women worldwide the right to reproductive freedom.
Ronli Sifris is a lecturer in the Law Faculty at Monash University and is an

Associate of the Castan Centre for Human Rights Law.
Routledge Research in Human Rights Law
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The Right of the Child to be Heard
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Litigating Transnational Human Rights Obligations

Alternative Judgements
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Reproductive Freedom, Torture and International Human Rights

Challenging the Masculinisation of Torture
Ronli Sifris
Forthcoming titles in this series include:
Jurisdiction, Immunity and Transnational Human Rights Litigation

Xiaodong Yang
This page intentionally left blank
Reproductive Freedom,
Torture and International
Human Rights: Challenging the
Masculinisation of Torture
Ronli Sifris
First published 2014
by Routledge
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Simultaneously published in the USA and Canada
by Routledge
711 Third Avenue, New York, NY 10017
Routledge is an imprint of the Taylor & Francis Group, an informa business
© 2014 Ronli Sifris
The right of Ronli Sifris to be identified as author of this work has been
asserted by her in accordance with sections 77 and 78 of the Copyright,
Designs and Patents Act 1988.
All rights reserved. No part of this book may be reprinted or reproduced or
utilised in any form or by any electronic, mechanical, or other means, now
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Trademark notice: Product or corporate names may be trademarks or
registered trademarks, and are used only for identification and explanation
without intent to infringe.
British Library Cataloguing in Publication Data
A catalogue record for this book is available from the British Library
Library of Congress Cataloging-in-Publication Data
Sifris, Ronli.
Reproductive freedom, torture and international human rights : challenging
the masculinisation of torture / Ronli Sifris.
pages cm. -- (Routledge research in human rights law)
Based on the author’s thesis (doctoral)--Monash Univeristy, 2011,
under title: Conceptualising restrictions on abortion and involuntary
sterilisation procedures as torture or cruel, inhuman or degrading
treatment.
Includes bibliographical references and index.
ISBN 978-0-415-65963-5 (hardback) -- ISBN 978-0-203-07474-9 (ebk) 1.
Reproductive rights. 2. Women (International law) 3. Torture (International
law) I. Title.
K2000.S54 2014
342.08’4--dc23
2013021846
ISBN: 978-0-415-65963-5 (hbk)

ISBN: 978-0-203-07474-9 (ebk)
Typeset in 11/12 Garamond 3 by

Servis Filmsetting Ltd, Stockport, Cheshire
Contents
Foreword xii
Dedication xii
Acknowledgements xiii
Table of abbreviations xv
1 Introduction 1
1 Background 1
2 Scope 4
(a) Reproductive rights 5
(b) Restrictions on reproductive freedom 6
3 Aims and contribution 8
4 Context: the gendered nature of international law 11
(a) Working within the system 12
(i) Gender sidestreaming 13
(ii) Gender mainstreaming 15
(iii) Working within a defective system 18
(b) Challenging the system 19
(i) Examples of the gendered nature of the international
legal system 20
(ii) A positive example 23
5 Structure and methodology 24
2 Overview of the prohibition of torture and other cruel,

inhuman or degrading treatment or punishment 29
1 The international system 29
(a) The international law approach 29
(b) The United Nations Convention against Torture and Other
Cruel, Inhuman or Degrading Treatment of Punishment 33
(c) Customary international law 37
2 The regional systems 38
(a) Europe 39
(i) European Convention for the Protection of Human
Rights and Fundamental Freedoms (ECHR) 40
viii Contents
(ii) European Convention for the Prevention of Torture
and Inhuman or Degrading Treatment or Punishment
(European Torture Convention) 42
(b) America 44
(c) Africa 47
3 Extension of the prohibition to encompass situations beyond the
traditional detainee context 49
(a) Human Rights Committee 52
(b) Committee against Torture 55
(c) Special Rapporteur on Torture and other Cruel, Inhuman or
Degrading Treatment or Punishment 60
4 Conclusion 61
3 Severe pain or suffering 62

1 Introduction 62
2 The meaning of an ‘act’ 63
3 The meaning of ‘severe’ 65
4 Restrictions on abortion 67
(a) Mental pain or suffering 68
(i) Restrictions on abortion cause mental pain and
suffering 68
(ii) Negating post-abortion syndrome 71
(iii) The stigmatising effect of restrictions on abortion 75
(b) Physical pain or suffering 77
(i) The physical effects of unsafe abortion 77
(ii) The link between safety and legality 79
(iii) The pain and suffering of childbirth 81
5 Involuntary sterilisation 83
(a) Mental pain or suffering 83
(i) Mental pain and suffering caused by infertility 83
(ii) Mental pain and suffering caused by involuntary
sterilisation 86
(b) Physical pain or suffering 89
(i) The literal approach 89
(ii) The broad approach 91
6 Conclusion 95
4 Intentionally 97
1 Introduction 97
2 The meaning of ‘intentionally’ in article 1 of CAT 98
(a) ‘Intentionally’ excludes negligent conduct 98
(b) Distinction between ‘intention’ and ‘negligence’ under
domestic law 99
(c) Broad conceptualisation of ‘intention’ pursuant to article 1
of CAT 102
Contents ix
3 Doctrine of double effect 106
4 Conclusion 109
5 Purpose: discrimination 110

1 Introduction 110
2 Restrictions on abortion 113
(a) Legal context 114
(b) Social context 119
(c) Legislative purpose 123
(d) Legislative impact 128
3 Involuntary sterilisation 131
(a) Involuntary sterilisation as discrimination against women 132
(b) Discrimination within the feminist movement 136
(c) Case studies 139
(i) China 139
(ii) Peru 141
(iii) Roma (Czech Republic) 143
4 Conclusion 146
6 Public official 147

1 Introduction 147
2 Direct state responsibility 149
(a) Restrictions on abortion 150
(b) Involuntary sterilisation 154
3 Indirect state responsibility 156
(a) Gendered dimension of the public/private distinction 156
(b) International position 159
(i) Application of the ‘due diligence’ requirement to
torture and CIDT in international human rights law 160
Approach of the HRC 160
Regional approach 162
(ii) Interpretation of the ‘public official’ requirement in
CAT 165
CAT Committee decisions 166
General comments 167
Concluding observations 169
4 Conclusion 171
7 ‘Powerlessness’ 172
1 Introduction 172
2 Additional requirement of ‘powerlessness’? 173
(a) Approach under CAT 173
(b) Intimate partner violence and rape: examples of
‘powerlessness’ from a gendered perspective 175
(i) Intimate partner violence 175
x Contents
(ii) Rape 177
(c) Non-legal literature 180
3 ‘Powerlessness’ in the context of restrictions on reproductive
freedom 182
(a) Overview 182
(b) Restrictions on abortion 184
(i) Power of the law 184
(ii) Power of medicine 189
(c) Involuntary sterilisation 192
(i) Power of the law 192
(ii) Power of medicine 194
Examples in the context of involuntary sterilisation 199
4 Conclusion 202
8 Lawful sanctions 204

1 Introduction 204
2 Drafting history of the lawful sanctions clause 205
3 Interpretation 1: ‘lawful sanctions’ equals lawful pursuant to
domestic law 208
international law 212
5 Application of the lawful sanctions clause to restrictions on
reproductive freedom 216
6 Conclusion 218
9 Cruel, inhuman or degrading treatment 219

1 Introduction 219
2 Consequences of categorising conduct as torture or CIDT 220
(a) Article 7 of the ICCPR 221
(b) CAT 222
(i) Articles 10 to 13 of CAT 223
(ii) Approach of the CAT Committee to the remaining
articles of CAT 223
(c) Universal jurisdiction 227
(d) Stigma 229
3 What is CIDT? 231
(a) Overview 231
(b) Conduct that constitutes CIDT 233
4 Distinction between torture and cruel or inhuman treatment 236
(a) Proportionality 237
(b) Distinction of severity 240
(c) Distinction of purpose 242
5 Degrading treatment 243
6 Conclusion 247
Contents xi
10 Torture, inhuman or degrading treatment? 248
1 Introduction 248
2 Current approach to conceptualising restrictions on reproductive
freedom as torture or CIDT 248
(a) Restrictions on abortion 249
(b) Involuntary sterilisation 252
3 A normative approach 254
(a) Fear of dilution 254
(b) Most appropriate category 257
4 Conclusion 260
11 Conclusion 261
1 Summary 262
(a) Overview 262
(b) Torture 263
(i) Restrictions on abortion 263
(ii) Involuntary sterilisation 266
(c) Torture or CIDT? 268
2 Directions for future research 269
3 A final word 271
Selected bibliography 272

Index 303
Foreword
Reproductive Freedom, Torture and International Human Rights:

Challenging the Masculinisation of Torture
Dr Ronli Sifris
On December 10 1948 the international community made a commitment

to upholding dignity and justice for all human beings by proclaiming the
Universal Declaration of Human Rights (the Declaration). As Elizabeth Evatt
AC has said:
“The Universal Declaration will stand forever as the first international and
universal statement of human rights principles. It expresses the essence
of humanity and reflects the need of each individual for freedom, equal-
ity, minimum standards of living and a social and international order in
which rights and freedoms can be realised”
The Declaration was a universal recognition that basic rights and fundamental
freedoms are inherent to all human beings, inalienable and equally applicable
to everyone. The Declaration was the foundation of modern international
human rights law. The Declaration’s core principle of the universality of
human rights has been reiterated in numerous international human rights
conventions.
Since the adoption of the Convention on the Elimination of All Forms of
Discrimination against Women by the United Nations General Assembly in
1979, a persuasive body of academic literature and international instruments
have challenged this assumption that modern international human rights law
impacts on men and women in the same way. The 1995 United Nations Beijing
Declaration on the Rights of Women (the Beijing Declaration) contributed to the
understanding that women’s equal enjoyment of human rights and fundamen-
tal freedoms do not occur automatically as a result of the overall protection
and promotion of human rights. The Beijing Declaration explicitly links the
violence perpetrated against women with their unequal enjoyment of rights
under international human rights law, stating that “violence against women
Foreword xiii
is an obstacle to the achievement of the objectives of equality, development
and peace”.
The definition of violence contained in the Beijing Declaration is broad,
including “any act of gender-based violence that results in, or is likely to result
in, physical, sexual or psychological harm or suffering to women, including
threats of such acts, coercion or arbitrary deprivation of liberty, whether
occurring in public or private life”. This broad definition has offered a large
scope for the international community going forward in further improving
and promoting the rights for women under international law. However, the
breadth of the definition has also created space for moral and ethical debates
about what constitutes violence against women. These debates have most
frequently focused on the sexual and reproductive rights of women, and
the argument that the denial of reproductive freedom constitutes a violence
against women.
The reproductive rights of women were an important issue at the 2013
meeting of the Commission on the Status of Women. After much debate,
the final outcome recognised that “respecting and promoting sexual and
reproductive health, and protecting and fulfilling reproductive rights… is a
necessary condition to achieving gender equality”.
It is the highly relevant topic of reproductive freedom for women that Dr
Sifris addresses in her book. However, she does not focus her attention on the
moral and ethical issues that dominate the debates of law and policy makers
at the national and international level. Rather than attempt to make a case for
a separate right to reproductive freedom for women, Dr Sifris argues for the
application of the existing, mainstream international human right prohibit-
ing torture and cruel, inhuman and degrading treatment (CIDT) to the denial
of reproductive freedom for women. Dr Sifris concentrates her legal analysis
on two aspects of reproductive rights for women: the denial of abortion rights
for women and involuntary sterilisation of certain groups of women.
Dr Sifris’ thesis that the denial of reproductive rights for women amounts
to torture or CIDT, within the meaning of international law will be confront-
ing to some. It involves the reconstruction of the traditional male-centric
conception of torture in both the legal and popular imagination. Dr Sifris
highlights that the word “torture” immediately conjures up images of detain-
ees at places like Guantanamo Bay or asylum seekers in detention. She con-
cludes that the majority of the academic literature and jurisprudence on the
international prohibition is focused on the proper application of the law in
this detainee context. She argues that the detainee context is dominated by
men, with the result that the international conventions against torture and
CIDT predominantly afford protection to men.
To combat what she terms “the masculinisation of torture”, Dr Sifris
engages in a thorough legal analysis of the prohibition against torture and
CIDT under international law and illustrates how it can apply to a con-
text that primarily affects women: the denial of abortion access and the
involuntary sterilisation of women. Over seven chapters, Dr Sifris carefully
xiv Foreword
interprets each element of torture and CIDT contained in the Convention
against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
and the International Covenant on Civil and Political Rights. Dr Sifris builds her
case in a methodical manner and supports her argument by referring to an
extensive body of national and international legal sources and literature on
torture and reproductive rights.
The final two chapters of the book place the detailed and focused analysis
in the broader context of the contentious debate at the international level
regarding the question of whether restrictions on reproductive freedom fall
within the definition of torture or CIDT. Dr Sifris responds to the norma-
tive and ethical critiques of the extension of torture and CIDT provisions to
reproductive rights with reference to the strength of her legal analysis. For Dr
Sifris, if the legal criteria for torture and CIDT are made out, then ethical or
normative concerns are irrelevant.
Dr Sifris’ work is ground-breaking in a number of respects. It expands the
discourse on torture by providing the first systematic legal analysis of how
some restrictions on reproductive freedom violate the prohibition of torture.
By focusing on abortion access and involuntary sterilisation, two areas of
reproductive rights relatively untouched by feminist analysis of the torture
discourse, Dr Sifris also makes an important contribution to the gendered
reading of international law.
Dr Sifris has produced an excellent book which provides an intelligent and
thoughtful analysis of issues that are of fundamental concern to women in
Australia and throughout the world.
The Hon Marilyn Warren AC

Chief Justice of Victoria
September 2013
For Michael Adam, my ikigai
Acknowledgements
Isaac Newton once acknowledged that ‘if I have seen further than others, it
is by standing upon the shoulders of giants.’1 Indeed, while completing this
book has in many ways been an individual, solitary endeavour, it has been
rendered possible by the support and assistance of a number of giants.
This book is based on a PhD thesis completed at Monash University’s
Faculty of Law in 2011. I was fortunate to have two extraordinary supervisors
who have also been inspirational female role models. Professor Bernadette
McSherry encouraged me to enrol in a PhD, supervised me from the start and
provided me with an abundance of wisdom and valuable guidance. Professor
Sarah Joseph contributed her expertise in the law relating to torture and, by
engaging in an intellectually rigorous critique of the argument, enabled me
to take it to the next level.
Apart from my PhD supervisors, I was fortunate to receive assistance from a
number of other people. I am indebted to the examiners of my PhD, Professors
Rebecca Cook and Manfred Nowak, for providing me with invaluable feed-
back. The anonymous referees and editorial boards of the Medical Law Review
and the Netherlands Quarterly of Human Rights provided me with worthwhile
comments and suggestions. Material in this book has been published in:
• Ronli Sifris, ‘Conceptualising Involuntary Sterilisation as “Severe Pain or

Suffering” for the Purposes of Torture Discourse’ (2010) 28(4) Netherlands
Quarterly of Human Rights, 523.
• Ronli Sifris, ‘Restrictive Regulation of Abortion and the Right to Health’
(2010) 18(2) Medical Law Review, 185.
• Ronli Sifris, ‘A Woman’s Right to Choose: Human Rights and Abortion
in Australia’ in Paula Gerber and Melissa Castan (eds), Contemporary
Human Rights Issues in Australia (Thomson Reuters, 2013) 251.
In addition, I am extremely grateful to the Honourable Marilyn Warren AC,

Chief Justice of the Supreme Court of Victoria, for writing the Foreword to
1 See, for example Clifford A Pickover, A Passion for Mathematics: Numbers, Puzzles, Madness,
Religion and the Quest for Reality (John Wiley & Sons, Hoboken, 2005) 35.
Acknowledgements xvii
this book. At Monash University, conversations around the water cooler with
colleagues too numerous to name helped me to formulate and develop my
ideas. In particular, Dr Penny Weller’s thoughtful perspective gave me much
food for thought and Dr Dale Smith’s comments on Chapter 4 were extremely
valuable. Special thanks go to Dr Vicki Vann for the hours she spent proof-
reading and for her insightful comments. Also, while many mothers support
their children’s academic endeavours, few people are so fortunate as to have
a mother who is willing and able to provide emotional and practical support
as well as to provide valuable feedback on the content of a book. So, I would
especially like to acknowledge my mum, Dr Adiva Sifris.
On that note, it is only with the support of family and friends that one
is able to find the strength and the energy required to complete such a
monumental task. I owe a debt of gratitude to my family for their constant
encouragement and to my parents for their practical support over the years
and for always encouraging me to reach for the stars. Finally, I am privileged
to have found a partner who has provided me with love, kindness, generosity,
support, intellectual stimulation, inspiration and positive energy as well as a
willingness to be my 24/7 IT Helpdesk. Thank you Michael.
Table of abbreviations
ACHR American Convention on Human Rights

CAT Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment
CAT Committee Committee against Torture
CEDAW Convention on the Elimination of All Forms of
Discrimination against Women
CEDAW Committee Committee on the Elimination of Discrimination
against Women
CERD Committee Committee on the Elimination of All Forms of
Racial Discrimination
CIDT Cruel, Inhuman or Degrading Treatment or
Punishment
CPR Civil and Political Rights
ECHR European Convention for the Protection of Human
Rights and Fundamental Freedoms
ESCR Economic, Social and Cultural Rights
European Court European Court of Human Rights
EU European Union
European Torture European Convention for the Prevention of
Convention Torture and Inhuman or Degrading Treatment or
Punishment
FGM female genital mutilation
HRC Human Rights Committee
ICCPR International Covenant on Civil and Political
Rights
Table of abbreviations xix
ICESCR Committee Committee on Economic, Social and Cultural
Rights
ICTR International Criminal Tribunal for Rwanda
ICTY International Criminal Tribunal for the former
Yugoslavia
IDT inhuman or degrading treatment or punishment
Inter-American Torture Inter-American Convention to Prevent and Punish
Convention Torture
Inter-American Inter-American Commission on Human Rights
Commission
Optional Protocol Optional Protocol to the Convention against
Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment
Special Rapporteur Special Rapporteur on torture and other cruel,
inhuman or degrading treatment or punishment
Special Rapporteur on Special Rapporteur on violence against women,
violence against women its causes and consequences
VCLT Vienna Convention on the Law of Treaties
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1 Introduction
This is an important book, the critic assumes, because it deals with

war. This is an insignificant book because it deals with the feelings of
women in a drawing-room.1
Virginia Woolf
1 Background
In an October 1989 interview, Faye Wattleton, then President of the Planned
Parenthood Federation of America, observed that ‘[r]eproductive freedom is
critical to a whole range of issues. If we can’t take charge of this most personal
aspect of our lives, we can’t take care of anything. It should not be seen as a
privilege or as a benefit, but a fundamental human right.’2 She concluded her
interview with the point that ‘[a]ll women, rich and poor, brown, yellow,
and white, must be free to take charge of their lives and make their own
personal decisions. We have to fight for fundamental human rights so that no
woman can be denied this dignity, regardless of her station in life.’3 Indeed,
reproductive rights are human rights, as the following examples demonstrate:
Six months pregnant and feeling unwell, a poor woman goes to a state-run
clinic in Rio de Janeiro for help—and is turned away. A week later, she is
dead. Halfway around the world, in Hungary, a Roma woman is about to
undergo emergency surgery because of a miscarriage. She is asked to sign
a consent form for a C-section, but never told that she is also agreeing to
be sterilized. In Poland, a young pregnant woman is told that she will lose
her sight if she continues with the pregnancy. She seeks an abortion on
health grounds, which is allowed under Polish law, but doctors override her
judgment and refuse to give her one. She is now almost completely blind.4
1 Virginia Woolf, A Room of One’s Own (16th imp, Hogarth Press, London, 1978) 111.
2 Marcia Ann Gillespie, ‘Repro Woman’, Ms. Magazine (United States), October 1989, 50.
3 Marcia Ann Gillespie, ‘Repro Woman’, Ms. Magazine (United States), October 1989, 53.
4 Center for Reproductive Rights, Repro Rights are Human Rights http://reproductiverights.org/en/
feature/repro-rights-are-human-rights at 19 April 2013 (hyperlinks omitted).
2 Reproductive freedom, torture and IHR
The conceptualisation of reproductive rights as human rights is a relatively
recent phenomenon; restrictions on reproductive freedom, as a subset of repro-
ductive rights, may be conceptualised as violating a number of established
international human rights. For example, it is arguable that both restric-
tions on abortion and involuntary sterilisation procedures may in certain
circumstances violate the:
• right to life5
• right to health6
• right to privacy/autonomy7
• right to equality/freedom from discrimination.8
Restrictions on abortion and involuntary sterilisation procedures may also

violate the right to be free from torture and other cruel, inhuman or degrading
treatment (CIDT).9 Further, involuntary sterilisation may be conceptualised
as a violation of the right to marry and found a family.10
The relationship between unsafe abortions and high rates of maternal
mortality underpins the argument that restrictions on abortion violate the
right to life.11 In circumstances in which women who are subjected to
involuntary sterilisation procedures die as a result, such procedures may
also violate the right to life. More commonly, restrictions on reproductive
5 See for example: International Covenant on Civil and Political Rights, opened for signature 16
December 1966, 999 UNTS 171, art 6 (entered into force 23 March 1976).
6 See for example: International Covenant on Economic, Social and Cultural Rights, opened for signa-
ture 16 December 1966, 993 UNTS 3, art 12 (entered into force 3 January 1976). See Chapter
3 of this book for a discussion of the health implications of restrictions on reproductive freedom.
December 1966, 999 UNTS 171, art 17 (entered into force 23 March 1976).
December 1966, 999 UNTS 171, art 26 (entered into force 23 March 1976); Convention on the
Elimination of All Forms of Discrimination against Women, opened for signature 18 December 1979,
1249 UNTS 13 (entered into force 3 September 1981). Chapter 4 of this book discusses restric-
tions on reproductive freedom as a form of discrimination against women.
December 1966, 999 UNTS 171, art 7 (entered into force 23 March 1976); Convention against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10
December 1984, 1465 UNTS 85 (entered into force 26 June 1987).
10 International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999
UNTS 171, art 23 (entered into force 23 March 1976); Convention on the Elimination of All Forms
of Discrimination against Women, opened for signature 18 December 1979, 1249 UNTS 13, art 16
(entered into force 3 September 1981).
11 Center for Reproductive Rights, ‘Safe and Legal Abortion is a Woman’s Human Right’ (August
2004) 1; Christina Zampas and Jaime M Gher, ‘Abortion as a Human Right – International
and Regional Standards’ (2008) 8 Human Rights Law Review 249, 255–256; Rebecca J Cook,
‘Reproductive Health Law: Where Next, After Cairo and Beijing?’ (1997) 16 Medicine and Law
169; Rebecca J Cook and Mahmoud F Fathalla, ‘Advancing Reproductive Rights Beyond Cairo
and Beijing’ in Kelly D Askin and Dorean M Koenig (eds), Women and International Human
Rights Law (Volume 3) (Transnational Publishers Inc, New York 2001) 78–80.
Introduction 3
freedom injure the physical and/or mental health of the women in question
thereby violating the right to health. Further, according to Rosalind Pollack
Petchesky, ‘the very nature of reproduction – is social and individual at the
same time.’12 Thus, on the one hand, it is arguable that a woman’s right
to decide matters relating to her own body (such as the right to choose to
terminate a pregnancy or the right to choose to bear children) forms a part
of the right to privacy, right to autonomy, right to liberty, right to physi-
cal integrity, and right to decide the number and spacing of one’s children.
On the other hand, the view that laws restricting access to abortion are
frequently discriminatory, both in purpose and effect, forms the basis for the
argument that laws restricting abortion violate a woman’s right to be free
from gender-based discrimination.13 Similarly, the reality that the practice
of involuntary sterilisation disproportionately affects women lends a dis-
criminatory element to this procedure.14 In addition, as already mentioned,
restrictions on reproductive freedom may constitute torture or CIDT. The
argument that restrictions on reproductive freedom may constitute torture
or CIDT is elaborated on during the course of this book.15 Many of these
arguments are interrelated. For example, the arguments that restrictions on
reproductive freedom violate the right to life, right to health, or right to be
free from torture are all based on the notion that a woman who is denied
reproductive freedom may suffer in a way that is damaging to her physical
or mental health (or both) as a result of such denial.
As the discussion thus far demonstrates, the existing human rights frame-
work is broad enough to encompass reproductive rights. In fact, within the
international human rights regime there is growing recognition that repro-
ductive rights may fall within the existing international human rights para-
digm. Nevertheless, despite the reality that women’s reproductive freedom
continues to be restricted in numerous countries, international human rights
law has failed to recognise explicitly and unambiguously a right to reproduc-
tive freedom. For example, in approximately 70 countries, abortion is either
12 Rosalind Pollack Petchesky, ‘Beyond “A Woman’s Right to Choose”: Feminist Ideas about
Reproductive Rights’ in Nancy Ehrenreich (ed) The Reproductive Rights Reader (New York
University Press, New York, 2008) 106, 106.
13 Center for Reproductive Rights, ‘Safe and Legal Abortion is a Woman’s Human Right’
(August 2004) 3; Reva Siegel, ‘Reasoning from the Body: A Historical Perspective on Abortion
Regulation and Questions of Equal Protection’ (1992) 44 Stanford Law Review 261; Catharine A
MacKinnon, ‘Reflections on Sex Equality Under Law’ (1991) 100 Yale Law Journal 1281.
14 See for example: Betsy Hartmann, Reproductive Rights and Wrongs: The Global Politics of Population
Control (Revised ed, Harper & Row, New York, 1995) 170; Rebecca J Cook and Simone
Cusack, Gender Stereotyping: Transnational Legal Perspectives (University of Pennsylvania Press,
Philadelphia, 2010) 85; Paula Abrams, ‘Reservations About Women: Population Policy and
Reproductive Rights’ (1996) 29 Cornell International Law Journal 1, 11; Johanna E Bond,
‘Intersecting Identities and Human Rights: The Example of Romani Women’s Reproductive
Rights’ (2004) 5 Georgetown Journal of Gender and the Law 897, 906.
15 See for example: Karen Noelia Llantoy Huamán v Peru, Human Rights Committee, Communication
No 1153/2003, UN Doc CCPR/C/85/D/1153/2003 (22 November 2005).
prohibited altogether or allowed only to save a woman’s life.16 Further, in
the past decade human rights treaty bodies have expressed concern regarding
involuntary sterilisation procedures taking place in countries as diverse as
Slovakia, Peru, Brazil and China.17 Consequently, the rhetorical commitment
of international human rights law to the ideal notwithstanding, expressed in
article 1 of the Universal Declaration of Human Rights, that ‘[a]ll human
beings are born free and equal in dignity and rights’,18 the international
human rights regime has failed to safeguard adequately women’s dignity
and rights. This book considers the issue of restricting women’s reproduc-
tive freedom through the lens of the right to be free from torture and CIDT
(although the discussions in Chapters 3 and 5 are also relevant to an analysis
of restrictions on reproductive freedom as violations of the right to health and
the right to be free from discrimination respectively).
2 Scope
This book analyses the meaning of torture and CIDT under international
human rights law with a view to conceptualising these terms so as to
include issues of disproportionate concern to women, particularly restric-
tions on reproductive freedom. The focus of this book is on the United
Nations Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment19 (CAT) and, to a lesser extent, article 7 of the
International Covenant on Civil and Political Rights20 (ICCPR). The reason
for the emphasis on CAT is that, whereas there are numerous international law
instruments that demonstrate the extent of the international legal system’s
efforts to combat torture and CIDT, CAT (a multilateral treaty with almost
150 ratifications that deals specifically and soley with the issue of torture and
CIDT) is clearly the most globally significant and influential instrument.21
16 Center for Reproductive Rights, The World’s Abortion Laws (2011).

17 See for example: Committee on the Elimination of Racial Discrimination, Concluding Observations
on Slovakia, 59th sess, UN Doc A/59/18 (23 February–12 March 2004) [389]; Human Rights
Committee, Concluding Observations on Peru, 70th sess, UN Doc CCPR/CO/70/PER (15
November 2000) [76]; Human Rights Committee, Concluding Observations on Slovakia, 58th
sess, UN Doc A/58/40 (24 October 2003) [82]; Committee on Economic, Social and Cultural
Rights, Concluding Observations on Brazil, 30th sess, UN Doc E/2004/22 (5–23 May 2003) [134];
Committee on Economic, Social and Cultural Rights, Concluding Observations on China, 34th
sess, UN Doc E/2006/22 (25 April–13 May 2005) [165]; Committee on the Elimination of All
Forms of Discrimination against Women, Concluding Observations on Peru, 26th sess, UN Doc
A/57/38 (14 January–1 February 2002) [484].
18 Universal Declaration of Human Rights, GA Res 217A(III), UN GAOR, 3rd sess, 183rd plen mtg,
UN Doc A/RES/810, art 1 (10 December 1948).
19 Opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987).
20 Opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976).
21 According to Nigel S Rodley, former Special Rapporteur on torture and other cruel, inhuman
or degrading treatment or punishment, the definition of torture set out in art 1 of CAT has
largely proved to have become the benchmark: Nigel S Rodley, ‘The Definition(s) of Torture in
International Law’ (2002) 55 Current Legal Problems 467, 474. See also former Special Rapporteur
Introduction 5
Thus while this book refers to the various interpretations of the right to be
free from torture and CIDT that have developed through the regional human
rights systems and through the international criminal law process, the focus is
on the interpretation of torture and CIDT in the international human rights
realm. Accordingly, while drawing on other sources, this book concentrates
on the interpretation of article 7 of the ICCPR prohibiting torture and CIDT
and, more particularly, centres around CAT.22 Further, it should be noted
that while this book draws on the violence against women discourse at various
points, the focus is on torture discourse as opposed to the discourse surround-
ing violence against women. Accordingly, this book examines restrictions on
women’s reproductive freedom within the framework of torture discourse.
(a) Reproductive rights

The question may arise: what is meant by ‘restrictions on reproductive free-
dom’? Or, more broadly, what is meant by ‘reproductive rights’? When
discussing reproductive rights, the focus is generally on women as physiology
dictates that only women experience pregnancy and childbirth. Therefore, the
discussion necessarily has a gendered dimension. The Report of the United
Nations International Conference on Population and Development describes
the concept of reproductive rights as follows:
[R]eproductive rights embrace certain human rights that are already

recognized in national laws, international human rights documents and
other relevant United Nations consensus documents. These rights rest on
the recognition of the basic right of all couples and individuals to decide
freely and responsibly the number, spacing and timing of their children
and to have the information and means to do so, and the right to attain
the highest attainable standard of sexual and reproductive health. It also
includes the right of all to make decisions concerning reproduction free
of discrimination, coercion and violence as expressed in human rights
documents.23
Examples of reproductive rights include:
• the right to birth control

• the right to terminate a pregnancy
• the right to access assisted reproductive technology
Manfred Nowak and Elizabeth McArthur who categorise CAT as the ‘[m]ost important among
all international instruments’ dealing with torture: Manfred Nowak and Elizabeth McArthur,
The United Nations Convention against Torture: A Commentary (Oxford University Press, Oxford /
New York, 2008) vi.
23 United Nations Population Division, Report of the International Conference on Population and
Development, UN Doc A/CONF.171/13 (18 October 1994) [7.3].
• the right to choose the method of childbirth (eg vaginal or caesarean)
• the right to accurate sex education
• the right to adequate reproductive health care
• the right to be free from all forms of coercion (such as coerced abortion or
coerced sterilisation)
• the right to decide the number and spacing of one’s children
• the right to refuse any medical procedure or form of medical inter-
vention.
Accordingly, reproductive rights include the freedom to decide whether,

when and how to have children. They include the right to access adequate
reproductive health care and all relevant information as well as treatment
that is respectful of the individual. They also include the right to be free from
sexual violence and other forms of violence that encroach on the reproductive
sphere. Discussions relating to reproductive rights encompass issues relating
to abortion, sterilisation, surrogacy, assisted reproductive technology, court-
ordered caesareans and so on. Further, it must be acknowledged that ‘women’
are not a homogenous group. Individual women may face different challenges
in the reproductive rights realm and specific groups of women may be dis-
proportionately affected by violations of particular reproductive rights. For
example, adolescent girls may face different challenges from disabled women
who may, in turn, have differing concerns to indigenous women or asylum
seekers. This is one of the reasons why this book considers both restrictions on
abortion and involuntary sterilisation.
(b) Restrictions on reproductive freedom

As previously mentioned, this book does not examine reproductive rights in
general but focuses on restrictions on reproductive freedom. Although it is
possible to identify a number of different types of restriction on reproductive
freedom, the specific restrictions on reproductive freedom considered are
legal restrictions on access to abortion and involuntary sterilisation proce-
dures. Therefore, references to ‘restrictions on reproductive freedom’ should
be interpreted as references to legal restrictions on access to abortion and
involuntary sterilisation procedures and not to other forms of restriction on
reproductive freedom. When this book discusses legal restrictions on access
to abortion, it is referring to laws that restrict women from accessing abor-
tion services. For example, laws prohibiting abortion in all circumstances,
laws prohibiting abortion in all circumstances other than to save the life of
the woman and laws prohibiting abortion except where the woman’s health
is endangered. However, it should be noted that the focus of this discussion
is on legal restrictions on access to abortion and not whether States have a
positive obligation to provide access to abortion services. A consideration
of issues such as whether States are obligated to provide funding for abor-
tion services and whether States are obligated to establish abortion clinics in
Introduction 7
geographically remote areas, while significant, is simply beyond the scope of
this book.24
Another issue that lies beyond the scope of this book concerns the moral
and/or legal rights of the foetus. Discussion of the issue of abortion invariably
gives rise to questions relating to the rights of the foetus as well as the rights
of the woman and raises questions regarding the resolution of a possible con-
flict of rights between the woman and the foetus. The focus of this book is on
the specific rights of the woman and whether a woman’s right to be free from
torture and CIDT is violated when she is restricted from legally terminating
her pregnancy. Discussion of the rights of the foetus and the appropriate
process for resolving a conflict of rights between the woman and the foetus,
should this prove necessary, is, likewise therefore, beyond the scope of this
book.
Reference in this book to involuntary sterilisation procedures refers to the
involuntary sterilisation of women. Therefore, in accordance with the fact
that this book is in part aimed at challenging the male-centric orientation
of international law generally and torture discourse in particular, the specific
restrictions on reproductive freedom considered are restrictions on reproduc-
tive freedom that specifically affect women. The terms ‘forced’ sterilisation,
‘coerced’ sterilisation, ‘compulsory’ sterilisation and ‘involuntary’ sterilisation
are often wrongly used interchangeably in the literature. ‘Forced’ sterilisa-
tion refers to circumstances in which women are physically compelled, or
compelled by force, to submit to sterilisation. ‘Coerced’ sterilisation refers
to circumstances in which either threats or inducements compel a woman to
consent to sterilisation, thereby negating her consent. ‘Compulsory’ sterilisa-
tion generally refers to circumstances in which a law or policy of the State
requires sterilisation in certain situations.
Reference to ‘involuntary’ sterilisation is to a sterilisation procedure that is
performed on a woman who has legal capacity to consent, without that wom-
an’s providing full informed consent.25 For example, where a woman consents
to a sterilisation procedure after being told by the relevant medical personnel
that it constitutes a form of temporary (as to opposed to permanent) contra-
ception, such consent will not be regarded as full informed consent. Thus
included in the concept of ‘involuntary sterlisation’ are ‘forced’ sterlisation,
‘coerced’ sterilisation and ‘compulsory sterilisation’. It should be noted that
this book does not consider the sterilisation of women who lack the capacity
24 For a discussion of the need to secure ‘reproductive justice’ for all women rather than simply
‘reproductive choice’ see: Nancy Ehrenreich, ‘Introduction’ in Nancy Ehrenreich, (ed), The
Reproductive Rights Reader (New York University Press, New York, 2008) 1.
25 ‘Informed consent’ has been defined as ‘consent to act after being given full or adequate dis-
closure.’ See: Peter Butt, Butterworths Concise Australian Legal Dictionary (3rd ed, LexisNexis
Butterworths, Chatswood, 2004) 222. In Rogers v Whitaker (1992) 175 CLR 479 the High Court
of Australia established that in order for a medical procedure to avoid being categorised as the
tort of battery, the patient must consent to the nature, scope, site and purpose of the physical
contact as well as any major risks associated with it.
to consent. For instance, there is significant debate surrounding the ethics,
morality and legality of sterilising women with severe intellectual disabili-
ties.26 Rather, we confine ourselves here to considering the circumstances of
women who have the capacity to consent but who are nevertheless subjected
to involuntary sterilisation procedures.27
In addition, it is worth noting that while this book is essentially a legal
analysis, it also considers and incorporates material from a range of other
disciplines. Indeed, it would be difficult to consider the numerous complex
issues raised in this book without drawing on aspects of philosophy, sociol-
ogy, history and anthropology. Similarly, a consideration of the impact of
restrictions on reproductive freedom that failed to discuss the medical and
psychology literature would be deficient. Thus, for example, Chapter 3 draws
on medical and psychological literature in its consideration of the pain and
suffering caused by restrictions on reproductive freedom, Chapter 4 consid-
ers aspects of philosophy when discussing the meaning of ‘intention’ and
sociology is invoked as part of Chapter 7’s discussion of ‘powerlessness’. That
said, the author makes no claim to be an expert in all these fields and relies
for much of this information on the expertise of those who have specialist
knowledge in the various relevant disciplines.
3 Aims and contribution

The primary goal of this book is to contribute to a feminist conceptualisation
of international human rights by examining restrictions on reproductive free-
dom through the lens of the right to be free from torture and CIDT. It does
this by examining each element of the definition of torture set out in article
1 of CAT and by analysing whether restrictions on abortion and involuntary
sterilisation satisfy each element. It then proceeds to consider the concept of
CIDT and the distinction between torture and CIDT.
This book focuses on the right to be free from torture and CIDT for two
main reasons. First, the prohibition of torture is ‘different’ from other interna-
tional human rights norms because it is a jus cogens norm; it is binding on all
States, irrespective of whether they have ratified a specific treaty prohibiting
torture.28 Juan Méndez, the United Nations Special Rapporteur on torture
26 See for example: Leanne Dowse and Carolyn Frohmader, Moving Forward: Sterilisation and
Reproductive Health of Women and Girls with Disabilities (Women With Disabilities Australia, Rosny
Park, 2001); Law Reform Commission of Canada, Sterilization: Implications for Mentally Retarded
and Mentally Ill Persons, Working Paper No 24 (1979); Commonwealth Department of Family and
Community Services, Sterilization of Women and Young Girls with an Intellectual Disability, Report
to the Senate (6 December 2000); Jeff Goldhar, ‘The Sterilization of Women with an Intellectual
Disability’ (1991) 10 University of Tasmania Law Review 157; Susan M Brady, ‘Sterilization of Girls
and Women with Intellectual Disabilities’ (2001) 7(4) Violence against Women 432.
27 For example, circumstances in which involuntary sterilisation is utilised as a mechanism of
population control.
28 For a discussion of the status of the prohibition of torture as a peremptory norm of international
law see: Peter Kooijmans, Report of the Special Rapporteur on Torture and Other Cruel,
Introduction 9
and other cruel, inhuman or degrading treatment or punishment (Special
Rapporteur), has emphasised the absolute nature of the prohibition of torture
and CIDT when discussing the benefits of using this framework to combat
abuses in the health care setting. According to Méndez, ‘[i]n the context of
health-related abuses, the focus on the prohibition of torture strengthens
the call for accountability and strikes a proper balance between individual
freedom and dignity and public health concerns.’29
Further, when discussing religious extremism and harmful traditional
practices in her capacity as (former) Special Rapporteur on violence against
women, its causes and consequences (Special Rapporteur on violence against
women), Radhika Coomaraswamy posed the following question and answer:
How do we fight laws and practices that are violent towards women
while respecting the dignity of the people who have come to see these
practices as tradition? The Special Rapporteur suggests that we use jus
cogens, principles of international law that cannot be derogated from by
States because they form the basis of international consensus. States are
bound whether they give their express consent or not since the norm
is of universal applicability. The prohibition against torture is one of
these norms. In this context, cultural practices that are irreversible and
cause ‘severe pain and suffering’ must be seen as torture and universally
condemned.30
Hilary Charlesworth and Christine Chinkin have noted that ‘the concept of
jus cogens is not a properly universal one as its development has privileged
the experiences of men over those of women, and it has provided a protec-
tion to men that is not accorded to women.’31 Thus this book contributes to
redressing the gendered development of the concept of jus cogens by analysing
restrictions on reproductive freedom through the prism of the right to be free
from torture and CIDT.
Second, this book challenges the essentialism that ‘sees torture as having
a fixed set of characteristics, unaffected by differences in context that may be
Inhuman or Degrading Treatment or Punishment, UN Doc E/CN.4/1986/15 (19 February

1986) [3]; Manfred Nowak and Elizabeth McArthur, The United Nations Convention against
Torture: A Commentary (Oxford University Press, Oxford/New York, 2008) vi, 8; Manfred
Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary (2nd ed, N P Engel Verlag,
Kehl, 2005) 157. The jus cogens status of the prohibition of torture was also acknowledged by
the International Criminal Tribunal for the former Yugoslavia in Prosecutor v Furundžija Case No
IT-95-17/1-T (10 December 1998) (Judgment).
29 Juan Méndez, Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, UN Doc A/HRC/22/53 (1 February 2013) [83].
30 Radhika Coomaraswamy, Report of the Special Rapporteur on Violence against Women, its Causes and
Consequences, UN Doc E/CN.4/2003/75/ (6 January 2003) [67].
31 Hilary Charlesworth and Christine Chinkin, ‘The Gender of Jus Cogens’ (1993) 15 Human Rights
Quarterly 63, 65.
political, social, economic, and cultural as well as gendered’.32 In other words,
this book challenges the view that torture only takes place within the tradi-
tional paradigm of interrogation, punishment or intimidation of a detainee.33
This traditional construction of the concept of torture prioritises the experi-
ences of men over the experiences of women given that, while women may
also be tortured in this paradigmatic form, the pain and suffering from which
women disproportionately suffer occurs outside of this traditional construct.
It occurs through abuses such as rape, severe domestic violence, female genital
mutilation (FGM), honour killings and interference with reproductive free-
dom. Therefore, this traditional paradigm is inadequate to encompass those
forms of violations of dignity and physical integrity that are most relevant to
the lived experiences of women.
To this end, this book considers the extension of the prohibition of torture
and CIDT to encompass situations beyond the traditional detainee context. It
notes that there has been a gradual move towards extending the prohibition
to encompass situations, such as rape and FGM, which are of greater rel-
evance to women. Further, it notes that references to restrictions on women’s
reproductive freedom in the context of violations of the right to be free from
torture and CIDT are discernible at the international human rights level.34
However, these references have not been developed into a comprehensive,
rigorous analysis and explanation of the conceptualisation of restrictions on
reproductive freedom as torture or CIDT. Therefore, there is a lack of clarity
regarding:
• whether restrictions on reproductive freedom may constitute torture,

inhuman treatment or degrading treatment
• the circumstances in which restrictions on reproductive freedom do (and
do not) constitute torture or CIDT
• the interpretation of the requirements integral to a determination of
whether conduct constitutes torture or CIDT and their application to
restrictions on reproductive freedom.
In other words, there have been indications at the international human rights
level that at least some restrictions on reproductive freedom violate the pro-
hibition of torture or CIDT. However, there has been no thorough, system-
atic analysis of how, why and which restrictions on reproductive freedom
constitute torture or CIDT. This book extends the current trajectory along
its logical path and provides such a comprehensive, systematic analysis by
engaging in a detailed examination of each element of the definition of torture
32 Rhonda Copelon, ‘Recognizing the Egregious in the Everyday: Domestic Violence as Torture’
(1994) 25 Columbia Human Rights Law Review 291, 299.
33 See: Nigel Rodley and Matt Pollard, The Treatment of Prisoners under International Law (3rd ed,
Oxford University Press, Oxford, 2009) 8–11.
34 See for example: discussion in Part 3 of Chapter 2 of this book.
Introduction 11
contained in article 1 of CAT, as well as the international human rights
concept of CIDT.
Further, in addition to challenging the essentialism that conceptualises
torture through a male-centric lens, this book also challenges ‘feminist essen-
tialism’, that being the positing of a ‘woman’s perspective’ without consid-
eration of ‘different racial, class, cultural and sexual positions that transform
gender and define differences among women’.35 Whereas Western feminists
have traditionally focused on the right to abortion, the right to be free
from sterilisation has traditionally been of greater concern to non-Western
women.36 Discussion of both these forms of restrictions on women’s repro-
ductive freedom in this book is in many ways a response to the critique of
third world feminists who have condemned both international law for its
structural bias against third world women and feminist approaches which fail
to address issues of particular relevance to third world women.37 Further, it
is worth noting that restrictions on abortion and the involuntary sterilisation
of women are essentially two sides of the same coin: coerced pregnancy on the
one side and coerced infertility on the other. Consequently, while the scholar-
ship to date has traditionally viewed these different forms of restrictions on
women’s reproductive freedom as completely separate issues, to be addressed
in different ways and fora, this book adds to the literature by demonstrating
the commonalities between both of these forms of restrictions on reproduc-
tive freedom and by considering both of these restrictions on reproductive
freedom through the lens of the right to be free from torture and CIDT.
4 Context: the gendered nature of international law

In the words of Hilary Charlesworth, ‘international law has a gender’ and
that gender is male.38 The gendered nature of international law has been the
subject of much discussion and debate. The key criticism of international
law from a gendered perspective is that it is a system prioritising issues that
concern men such that issues that disproportionately concern women are
largely neglected.39 Since the early 1990s, feminist scholarship critiquing the
36 Hilary Charlesworth, Christine Chinkin and Shelley Wright, ‘Feminist Approaches to
International Law’ (1991) 85 American Journal of International Law 613, 619.
37 See for example: Karen Engle, ‘International Human Rights and Feminisms: When Discourses
Keep Meeting’ in Doris Buss and Ambreena Manji (eds), International Law: Modern Feminist
Approaches (Hart Publishing, Oxford, 2005) 47, 58; Alice Edwards, ‘The “Feminizing” of Torture
Under International Human Rights Law’ (2006) 19 Leiden Journal of International Law 349, 353.
38 Hilary Charlesworth, ‘The Hidden Gender of International Law’ (2002) 16 Temple International
and Comparative Law Journal 93, 94.
39 See for example: Rebecca J Cook, ‘Introduction’ in Rebecca J Cook (ed), Human Rights of
Women: National and International Perspectives (University of Philadelphia Press, Philadelphia,
1994) 10; Christine Chinkin, Shelley Wright and Hilary Charlesworth, ‘Feminist Approaches
to International Law: Reflections from Another Century’ in Doris Buss and Ambreena Manji
gendered nature of international law and international legal institutions has
developed such that it now appears to be an accepted part of the legal academy
and there is now a sustained feminist presence in the international realm.40 In
the sphere of international human rights, women have been remarkably suc-
cessful at drawing attention to questions of gender.41 There are two primary
mechanisms by which feminists have sought to challenge the male-centric
nature of international law. The first is by working within the international
legal system to bring about change. The second is by challenging the structure
and content of the system itself.
(a) Working within the system

Feminists who advocate working within the existing international legal
system to challenge the gendered nature of international law typically empha-
sise the need to increase women’s representation and participation in interna-
tional legal institutions. They also tend to focus on the need to increase the
attention given to issues that disproportionately affect women, either through
‘gender sidestreaming’ or ‘gender mainstreaming’ or both. Thus this approach
to challenging the male-centric nature of international law has invoked as
its focus not the law itself but the way in which the law is implemented and
enforced. Consequently, this approach assumes that as women’s involvement
with international law increases and as women’s issues are incorporated into
the existing structure of international law, the gendered nature of interna-
tional law will begin to dissipate.42
Hilary Charlesworth and Christine Chinkin have noted that ‘the absence of
women in international law has distorted the discipline’s boundaries.’43 In so
far as the participation of women in international law is concerned, it is clear
that over the past few decades the representation of women in international
institutions has significantly increased.44 This is obviously a positive develop-
ment. However, despite increased female representation, the numbers remain
(eds), International Law: Modern Feminist Approaches (Hart Publishing, Oxford, 2005) 17; Hilary
Charlesworth, ‘The Hidden Gender of International Law’ (2002) 16 Temple International and
Comparative Law Journal 93.
40 Doris Buss and Ambreena Manji, ‘Introduction’ in Doris Buss and Ambreena Manji (eds),
International Law: Modern Feminist Approaches (Hart Publishing, Oxford, 2005) 1, 1–4.
41 Christine Chinkin, Shelley Wright and Hilary Charlesworth, ‘Feminist Approaches to
International Law: Reflections from Another Century’ in Doris Buss and Ambreena Manji (eds),
International Law: Modern Feminist Approaches (Hart Publishing, Oxford, 2005) 17, 25.
42 Karen Engle, ‘International Human Rights and Feminisms: When Discourses Keep Meeting’
in Doris Buss and Ambreena Manji (eds), International Law: Modern Feminist Approaches (Hart
Publishing, Oxford, 2005) 47, 51–52.
43 Hilary Charlesworth and Christine Chinkin, The Boundaries of International Law (Manchester
University Press, Manchester, 2000) 23.
Introduction 13
unequal, particularly in high-level positions. For example, there has never
been a female secretary-general of the United Nations.45 Further, the involve-
ment of women in international institutions is disproportionately apparent
in ‘soft’ areas tackling issues such as human rights and international criminal
law and is notably lacking in more traditional international law spheres such
as the law of the sea.46 Thus it seems that while there is some cause for opti-
mism in so far as the strengthening of women’s participation in international
law is concerned, the continuing lack of full equality in participation rates,
particularly at the highest levels of the United Nations, suggests a cau-
tious optimism as opposed to a full celebration. Another cause for cautious
optimism has been the move to include women’s issues within the existing
framework of international law. This move began in the form of a ‘gender
sidestreaming’ approach.47 The current approach is to combine a ‘gender
sidestreaming’ approach with a ‘gender mainstreaming’ approach.
(i) Gender sidestreaming

When it became clear that ‘universal human rights’ would not, in practice,
include ‘women’s human rights’, women began to advocate for a specialist
approach to protecting women’s human rights.48 The strategy of challenging
the gendered nature of international law by creating specialised instruments
and institutions aimed at addressing issues that disproportionately affect
women is best exemplified by the Convention on the Elimination of All
Forms of Discrimination against Women49 (CEDAW). CEDAW was opened
for signature in 1979 and came into force in 1981. As the name suggests, it
focuses on the specific issue of discrimination against women. Another exam-
ple of gender sidestreaming is the appointment of a Special Rapporteur on
violence against women in 1994. As part of her role, the Special Rapporteur
seeks, receives and responds to information on violence against women; she
45 United Nations, Secretary-General http://www.un.org/sg/formersgs.shtml at 19 April 2013.

International Law: Modern Feminist Approaches (Hart Publishing, Oxford, 2005) 17, 20–21. It was
only in 2011 that the first female judge was appointed to the International Tribunal for the Law
of the Sea. See: International Tribunal for the Law of the Sea, General Information: Judges http://
www.itlos.org/start2_en.html at 4 April 2013.
47 The term ‘gender sidestreaming’ is used by Hilary Charlesworth to describe the creation of
specific norms and institutions applicable only to women; ‘the notion of specializing in issues of
gender’. It is used in contrast to the term ‘gender mainstreaming’ discussed below. See: Hilary
Charlesworth, ‘Not Waving but Drowning: Gender Mainstreaming and Human Rights in the
United Nations’ (2005) 18 Harvard Human Rights Journal 1, 1.
48 Dianne Otto, ‘Disconcerting “Masculinities”: Reinventing the Gendered Subject(s) of
International Human Rights Law’ in Doris Buss and Ambreena Manji (eds), International Law:
Modern Feminist Approaches (Hart Publishing, Oxford, 2005) 105, 117.
49 Opened for signature 18 December 1979, 1249 UNTS 13, (entered into force 3 September
1981).
also recommends ways to eliminate violence against women and to remedy its
consequences.50
A number of positive effects have flowed from this approach to the inclu-
sion of issues that disproportionately affect women within the international
legal system. For example, CEDAW has been widely ratified thereby dem-
onstrating the (at least in principle) support of many States to the elimination
of discrimination against women.51 Further, pursuant to the Optional
Protocol to the Convention, the Committee responsible for administering
CEDAW is empowered to hear individual complaints.52 This adds some teeth
to the Convention’s bite. The Special Rapporteur on violence against women
has been instrumental in raising the global profile of the widespread, multi-
faceted problem of gender-based violence and other mechanisms such as the
Commission on the Status of Women have also served to raise international
awareness of issues that disproportionately affect women.
However, gender sidestreaming has been criticised on a number of bases.
For example, it has been criticised for repeating the marginalising representa-
tions of women that proliferate the mainstream international law approach.53
It has also been criticised for further distancing women’s human rights from
the mainstream.54 As Hilary Charlesworth states: ‘[T]he price of creating
separate institutional mechanisms for women has been the building of a
“women’s ghetto” with less power, resources, and priority than the “gen-
eral” human rights bodies.’55 Thus while creating mechanisms specifically to
address issues that disproportionately affect women meant that something,
rather than nothing, was done to address such issues, this approach also cre-
ated a culture in which the male-centric nature of international law flourished
while women’s issues were sidestreamed and concomitantly sidelined. Once it
became clear that the specialist approach to protecting women’s human rights
was not achieving its objectives, many feminists began to advocate a gender
mainstreaming approach.
50 Office of the United Nations High Commissioner for Human Rights, Special Rapporteur on violence
against women, its causes and consequences http://www2.ohchr.org/english/issues/women/rapporteur/
at 19 April 2013.
51 As at 4 April 2013 there were 187 parties to the Convention.
52 Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women,
GA Res 54/4, UN GAOR, 54th sess, 28th plen mtg, UN Doc A/RES/54/4 (15 October 1999).
55 Hilary Charlesworth, ‘Not Waving but Drowning: Gender Mainstreaming and Human Rights
in the United Nations’ (2005) 18 Harvard Human Rights Journal 1, 1.
Introduction 15
(ii) Gender mainstreaming

In order to overcome the limitations posed by the creation of separate,
specialised institutions focusing on women’s issues, in the 1990s the inter-
national system began moving towards an approach that supplemented
the female-centric organisations with a gender mainstreaming approach.56
The 1993 Vienna Declaration and Programme of Action adopted by the
World Conference on Human Rights recognised violence against women
as a human rights issue and set in motion the process of integrating (or
mainstreaming) issues of women’s rights and gender equality into the inter-
national system at all levels.57 At the Fourth World Conference on Women
held in Beijing in 1995, gender mainstreaming was embraced as a global
strategy for promoting gender equality.58 A broad-based and system-wide
United Nations gender mainstreaming mandate was created through the
adoption of the Economic and Social Council’s Agreed Conclusions in 1997
and through the Secretary-General’s communication to management that
same year.59
The United Nations Economic and Social Council has provided the follow-
ing definition of gender mainstreaming:
Mainstreaming a gender perspective is the process of assessing the impli-

cations for women and men of any planned action, including legislation,
policies or programmes, in all areas and at all levels. It is a strategy for
making women’s as well as men’s concerns and experiences an integral
dimension of the design, implementation, monitoring and evaluation of
policies and programmes in all political, economic and societal spheres so
that women and men benefit equally and inequality is not perpetuated.
The ultimate goal is to achieve gender equality.60
The idea of this approach is to shift the focus from ‘women’s issues’ to ‘gender
issues’ thereby shifting the responsibility for addressing such issues from
women-specific organisations to the United Nations as a whole, guided by the
56 Sari Kouvo, ‘The United Nations and Gender Mainstreaming: Limits and Possibilities’ in Doris
Buss and Ambreena Manji (eds), International Law: Modern Feminist Approaches (Hart Publishing,
Oxford, 2005) 237, 242.
57 Rhonda Copelon, ‘International Human Rights Dimensions of Intimate Violence: Another
Strand in the Dialectic of Feminist Lawmaking’ (2003) 11 American Journal of Gender, Social
Policy and the Law 865, 867.
58 See: United Nations, Report of the Fourth World Conference on Women, UN Doc A/CONF.177/20
(17 October 1995).
Oxford, 2005) 237, 238.
60 United Nations, Report of the Economic and Social Council for the Year 1997, UN Doc A/52/3/Rev.1
(18 September 1997) 27.
women-specific organisations.61 Thus while all United Nations structures and
institutions are obligated to mainstream a gender perspective, it is the insti-
tutions that specialise in women’s issues, together with interagency networks
and gender focal points, that are charged with enabling the mainstreaming
efforts within the United Nations system.62
The success of the gender mainstreaming approach to addressing questions
of gender in the international law realm is highly contested. The concept
of gender mainstreaming has gained widespread acceptance throughout the
international arena and in some respects it seems to have met with success.
For example, in addition to the laudable work of the Special Rapporteur on
violence against women, the mainstream human rights apparatus now also
addresses violence against women as a human rights violation.63 Further, this
move to combat violence against women has ‘spilled over into other areas of
international law, notably humanitarian law, criminal law and refugee law’.64
Thus according to Dianne Otto: ‘[T]here can be little doubt that feminist
ideas have spread throughout the United Nations system in the last decade,
in the wake of official commitments to system-wide gender mainstreaming.’65
Similarly, Karen Engle notes that articles on human rights frequently refer
to women and questions of gender have become increasingly institutional-
ised within international organisations.66 In Hilary Charlesworth’s words:
‘[T]oday, the vocabulary of gender mainstreaming is omnipresent in the inter-
national arena. Almost all U.N. bodies and agencies have formally endorsed
it.’67 This widespread acceptance of the concept of gender mainstreaming has
encouraged widespread recognition of women’s rights as human rights.
However, the Office of the Special Adviser on Gender Issues has identi-
fied a number of persistent constraints that are hampering the implementa-
tion of gender mainstreaming in the United Nations system. These include
‘conceptual confusion, inadequate understanding of the linkages between
Oxford, 2005) 237, 246.
Oxford, 2005) 237, 244.
International Human Rights Law in Doris Buss and Ambreena Manji (eds), International Law:
65 Dianne Otto, ‘The Exile of Inclusion: Reflections on Gender Issues in International Law over the
Last Decade’ (2009) 10(1) Melbourne Journal of International Law 11, 13.
Publishing, Oxford, 2005) 47, 47.
Introduction 17
gender perspectives and different areas of the work of the United Nations
and gaps in capacity to address gender perspectives once identified’.68 Hilary
Charlesworth has been critical of the way in which gender mainstreaming has
been conceptualised and implemented. In her view, the strategy of gender
mainstreaming ‘rests on an insipid and bland concept of gender that has little
cutting edge’.69 Sari Kouvo echoes Charlesworth’s concerns in her statement
that:
[W]hile the UN woman-centred institutions promote a social construc-

tionist approach to gender, this definition remains controversial and
cannot be said to be widely supported or accepted within the UN system.
The preference for equating gender with sex … weakens the notion of
gender and consequently its potential as an analytical tool at the heart of
UN equality politics.70
Even disregarding the conceptualisation of gender which forms the basis

of this approach, the reality that the widespread rhetoric of gender main-
streaming has not lived up to its promise in practice has been a source of
much disappointment.71 Fiona Beveridge and Sue Nott observe that gender
mainstreaming strategies are ‘strategies that everybody can understand,
although no-one is sure what they require in practice’.72 Moreover, accord-
ing to Charlesworth, gender mainstreaming has become a meaningless term
as the concept is simultaneously too broad and too narrow to be useful. The
definition of the United Nations Economic and Social Council provided above
is so wide and inclusive that it is difficult to envisage how it could be effec-
tively implemented in practice. At the same time, it is narrow in its concep-
tion of the meaning of equality between men and women in that ‘it reads as
if animated by the conception of equality as equal treatment of women and
men, assuming symmetry of position between women and men.’73 Thus it
is arguable that policies of gender mainstreaming, while laudable in their
68 Office of the Special Adviser on Gender Issues, Gender Mainstreaming: An Overview, United
Nations Department of Economic and Social Affairs (2002) vi.
Oxford, 2005) 237, 249.
in the United Nations’ (2005) 18 Harvard Human Rights Journal 1, 6–11. See also Sari Kouvo,
‘The United Nations and Gender Mainstreaming: Limits and Possibilities’ in Doris Buss and
Ambreena Manji (eds), International Law: Modern Feminist Approaches (Hart Publishing, Oxford,
2005) 237, 246–247.
72 Fiona Beveridge and Sue Nott, ‘Mainstreaming, A Case for Optimism and Cynicism’ (2002) 10
Feminist Legal Studies 299, 308.
ambitions, have in reality resulted in a gulf of unfulfilled expectation. While
the concept has met with some success in relation to certain discrete areas, an
overall assessment reveals that integration of women’s concerns in theory has
not translated into an integration of women’s concerns in practice. Certainly,
integration, even in its rhetoric, has not come close to transformation of the
system.
(iii) Working within a defective system

Both gender sidestreaming and gender mainstreaming have contributed to
a rethinking of international law from a gendered perspective. The current
approach of combining gender sidestreaming with gender mainstreaming
(discussed earlier) has much to commend it. Such an approach goes some
way towards addressing the key criticisms of gender sidestreaming, such as
the marginalisation and segregation of women’s issues. It also avoids wom-
en’s issues being swallowed up by the general mechanisms by maintaining
the specialist institutions to provide guidance to the generalist institutions.
However, this approach alone does not go far enough in responding to the
global subordination of women.74 In fact, gender mainstreaming ‘detracts
attention from the ways that sexed and gendered inequalities are woven into
the international system.’75 Although the international legal system has sig-
nificantly increased its attention to gender issues, the system itself remains
infused with gender bias. In the words of Sari Kouvo:
Within the UN system there seems to have been a tendency to promote

integrative mainstreaming strategies, which only implies moving issues
from the margins. Thus, integrative mainstreaming may well give the
appearance of successful mainstreaming – and a system that takes gender
seriously – but this is achieved without insisting on transformation or on
thorough changes within the system.76
Thus while the widespread adoption of gender mainstreaming policies to

supplement the existing specialist mechanisms has signified a victory of sorts
for those challenging the gendered nature of international law, ultimately
real transformation (as opposed to mere integration) cannot occur while the
system is defective. The framework, the laws and the interpretation of the
laws of the international regime must be challenged.
74 Hilary Charlesworth, ‘Cries and Whispers: Responses to Feminist Scholarship in International

Law’ (1996) 65 Nordic Journal of International Law 561, 564.
Oxford, 2005) 237, 251.
Introduction 19
(b) Challenging the system

The international legal regime was developed primarily by men in a male-
dominated world. It continues to be ‘constructed upon particular male
assumptions and experiences of life where “man” is taken to represent the
“human”.’77 Thus, for example, the law relating to torture was constructed
on the paradigm of interrogating, punishing or intimidating detainees, a
paradigm more relevant to the lived experiences of men than of women.
Women continue to be globally subordinated and women’s voices continue
to be obscured by the international legal order.78 The gendered nature of
the concepts and categories of international law render them unsuitable to
dealing with the realities of women’s lives and the structural disadvantages
of sex and gender.79 Indeed, the very choice and categorisation of matters
deemed appropriate for international regulation reflects male priorities.80 As
a result, international legal instruments fail adequately to address women’s
experiences of injustice and, in general, have not been interpreted in a gender
sensitive way.81 Consequently, as noted by Rebecca J Cook, international
human rights must be reconceptualised and recharacterised such that wom-
en’s human rights become a central component of the international human
rights agenda.82 This is not to negate the gains made through working within
the system. But such gains are inadequate as they fail to transform the reality
that international law privileges men over women; the system itself is struc-
turally biased against women.83 As Christine Chinkin, Shelley Wright and
Hilary Charlesworth observe:
We must be cautious about overstating the advances that have been

achieved. The guarantee of women’s human rights goes well beyond
adopting a new instrument, adding a new institution, ensuring the
inclusion of women in the composition of decision – or policy-making
committees, or extending the jurisdiction of an institution such as the
University Press, Manchester, 2000) 1–4.
81 Rebecca J Cook, ‘Introduction’ in Rebecca J Cook (ed), Human Rights of Women: National and
International Perspectives (University of Philadelphia Press, Philadelphia, 1994) 10.
82 Rebecca J Cook, ‘Introduction’ in Rebecca J Cook (ed), Human Rights of Women: National and
International Perspectives (University of Philadelphia Press, Philadelphia, 1994) 10.
University Press, Manchester, 2000) 218; Karen Engle, ‘International Human Rights and
Feminisms: When Discourses Keep Meeting’ in Doris Buss and Ambreena Manji (eds),
inclusion of crimes against women in the international criminal tribunals.
It requires challenging the structural inequalities and power imbalances
that make continued violations inevitable.84
Fitting a round peg into a square hole does not change the shape of the hole
in the same way as fitting women’s issues within a male construct does not
change the maleness of the construct.
There are numerous examples of the way in which international law pri-
oritises men’s experiences over women’s experiences. While acknowledging
the importance of recognising differences among women, the reality is that
‘patriarchy, and the devaluing of women, although manifested differently
within different societies, are almost universal.’85 Thus it is possible to con-
sider the gendered nature of international law and the structural bias of the
international legal regime which fails adequately to address issues of particu-
lar relevance to women while at the same time acknowledging differences
among women.86 Examples from international human rights law of the way
in which international law prioritises men’s experiences over women’s experi-
ences include: the public/private distinction; the primacy of civil and political
rights (CPR) over economic, social and cultural rights (ESCR); the concep-
tualisation of the meaning of equality from a male perspective; the gendered
coding of binary oppositions and the gendered interpretation of rights.
(i) Examples of the gendered nature of the international legal system

The public/private dichotomy that runs through international law is perhaps
the most frequently cited example of the gendered nature of international
law.87 Hilary Charlesworth has noted that the dependence of international

International Law: Reflections from Another Century in Doris Buss and Ambreena Manji (eds),
International Law: Modern Feminist Approaches (Hart Publishing, Oxford, 2005) 17, 25–26.
85 Hilary Charlesworth, ‘What are “Women’s International Human Rights”?’ in Rebecca J Cook
(ed), Human Rights of Women: National and International Perspectives (University of Philadelphia
Press, Philadelphia, 1994) 58, 62.
86 Differences among women include (but are not limited to) differences based on race, nationality,
class, culture, religion and disability.
87 See for example: Rebecca J Cook, ‘State Responsibility for Violations of Women’s Human
Rights’ (1994) 7 Harvard Human Rights Journal 125; Alice Edwards, ‘The “Feminizing” of
Torture Under International Human Rights Law’ (2006) 19 Leiden Journal of International Law
349, 355; Rhonda Copelon, ‘Recognizing the Egregious in the Everyday: Domestic Violence
as Torture’ (1994) 25 Columbia Human Rights Law Review 291; Catharine A MacKinnon, ‘On
Torture: A Feminist Perspective’ in Kathleen E Mahoney and Paul Mahoney (eds), Human Rights
in the Twenty-First Century: A Global Challenge (Martinus Nijhoff Publishers, Dordrecht, 1993)
26; Hilary Charlesworth and Christine Chinkin, The Boundaries of International Law (Manchester
University Press, Manchester, 2000) 232; Hilary Charlesworth, Christine Chinkin and Shelley
Wright, ‘Feminist Approaches to International Law’ (1991) 85 American Journal of International
Law 613, 638–643; Hilary Charlesworth, ‘Feminist Methods in International Law’ (1999) 93
American Journal of International Law 379, 382.
Introduction 21
human rights law on various distinctions between public and private worlds
represents a major limitation of the system.88 Indeed, international law regu-
lates the public world, in which issues that disproportionately affect men
are paramount, and shies away from regulating the private world, in which
issues that disproportionately affect women abound. There are numerous
illustrations of this dichotomy. For instance, CEDAW’s limited recogni-
tion of oppression within the private sphere and its contribution to women’s
inequality is one illustration.89 The confinement of the right to ‘just and
favourable conditions of work’90 to work in the public field (thereby exclud-
ing women’s unpaid domestic work) together with the androcentric nature
of the international economic system as a whole is another illustration.91
The public/private distinction is also apparent in the law relating to torture.
Chapter 6 of this book examines the public/private distinction in greater
detail and analyses it in the context of the law relating to torture. Therefore,
this introductory chapter merely flags the issue as one of significance to any
analysis of the gendered nature of international law.
The gendered coding of binary oppositions is another interesting example
of the gendered nature of international law. Hilary Charlesworth has observed
that ‘international law depends for its force on a series of binary opposi-
tions: order/chaos, logic/emotion, legal/political, binding/non-binding and
so on.’92 She notes that the fact that the first and the stronger of each pair is
traditionally associated with male characteristics and that the second of each
pair is traditionally associated with female characteristics influences the value
placed on the different characteristics. Accordingly, ‘using the vocabulary of
objectivity, logic, and order positions a person as being manly, which imme-
diately gives their words a higher value. The use of subjective, emotional, or
“disordered” discourse is coded as feminine, and thus devalues a statement or
argument.’93 Similarly, Dianne Otto bemoans the reality that the masculine
subject of international law ‘continues to rely for its universality on the
88 Hilary Charlesworth, ‘Whose Rule? Women and the International Rule of Law’ in Spencer
Zifcak (ed), Globalisation and the Rule of Law (Routledge, New York, 2005) 83, 86.
Zifcak (ed), Globalisation and the Rule of Law (Routledge, New York, 2005) 83, 85.
90 Article 7 of the International Covenant on Economic, Social and Cultural Rights states that
‘[t]he States Parties to the present Covenant recognize the right of everyone to the enjoyment of
just and favourable conditions of work.’ See: International Covenant on Economic, Social and Cultural
Rights, opened for signature 16 December 1966, 993 UNTS 3, art 7 (entered into force 3 January
1976).
Zifcak (ed), Globalisation and the Rule of Law (Routledge, New York, 2005) 83, 86; Hilary
Charlesworth, Christine Chinkin and Shelley Wright, ‘Feminist Approaches to International
Law’ (1991) 85 American Journal of International Law 613, 640.
contrast with feminised particularities’ and suggests that perhaps ‘we should
be searching for ways to conceptualise gender as something other than a
dichotomy.’94
Further, as already stated, another example of the gendered nature of
international law is the primacy accorded to CPR over ESCR. CPR consist
of ‘negative’ rights such as the right to vote, right to liberty and right to
freedom of association.95 ESCR include ‘positive’ rights such as the right to
food, right to housing, right to health and right to education.96 In theory,
these two sets of rights are ‘indivisible and interdependent and interrelated.’97
However, in practice CPR have been accorded priority over ESCR. As Philip
Alston states:
[T]he reality is that civil and political rights (CPR) have dominated the
international agenda while economic, social, and cultural rights (ESCR)
have been accorded second-class status. This is not to say that ESCR have
not been the subjects of long and noisy rhetorical campaigns championed
in particular by developing countries, or that the UN and other actors
have not mounted a significant number of initiatives designed to promote
and enhance the status of these rights. The bottom line remains, however,
that ESCR continue to enjoy an inferior status and that endeavors to
enhance that status have often been blocked.98
The primacy traditionally accorded to CPR is directed towards the protection

of men within the public sphere and their relationship with government.99
Whereas women are also protected by CPR, the rights that are most rel-
evant to the everyday lives of most women are ESCR.100 Thus by prioritising
CPR over ESCR the international system prioritises those rights that are
particularly important to men above those rights that are particularly impor-
tant to women. This reality was acknowledged by the United Nations High

Modern Feminist Approaches (Hart Publishing, Oxford, 2005) 105, 107 and 126.
95 See: arts 9, 22 and 25 of the International Covenant on Civil and Political Rights, opened for
signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976).
96 See: arts 11, 12 and 13 of the International Covenant on Economic, Social and Cultural Rights,
opened for signature 16 December 1966, 993 UNTS 3 (entered into force 3 January 1976).
97 See: United Nations, ‘The Vienna Declaration and Programme of Action’ in Report of the
World Conference on Human Rights: Report of the Secretary-General, UN Doc A/CONF.157/24 (13
October 1993) [5].
98 Philip Alston, ‘Putting Economic, Social and Cultural Rights Back on the Agenda of the
United States’ in William F Schulz (ed), The Future of Human Rights: US Policy for a New Era
(University of Pennsylvania Press, Philadelphia, 2008) 120, 120.
Introduction 23
Commissioner for Human Rights in her June 2008 report to the Economic
and Social Council, which states that ‘the lesser priority given to the protec-
tion of economic, social and cultural rights is a burden often carried dis-
proportionately by women in developing and developed societies alike.’101
Moreover, it should be noted that not only does the High Commissioner
acknowledge the reality that CPR retain primacy over ESCR despite rhetoric
to the contrary, and not only does she recognise the disproportionate impact
of violations of ESCR on women, but she also identifies the gender-based dis-
crimination inherent in the way in which ESCR are interpreted.102 Further,
it should be noted that, in addition to being accorded primacy over ESCR,
CPR (including the right to be free from torture) have also traditionally been
interpreted through a gendered lens.103
(ii) A positive example

The examples discussed here are merely a few examples of international law’s
structural bias. Nevertheless, it should be noted that in a few areas of inter-
national law, decades of feminist critique and advocacy have led to changes
in the system. For example, the overt inclusion of sexual violence in interna-
tional criminal law is an exception to the general proposition that integration
has not equalled transformation.104 One of the fundamental shifts that has
occurred in international criminal law is the transition from viewing instances
of sexual violence as constituting crimes against honour to viewing them as
crimes grave enough to fall within the categories of genocide, crimes against
humanity and war crimes.105 Further, pursuant to the International Criminal
Court’s Rules of Procedure and Evidence, in cases of sexual violence: corrobo-
ration is not required, the availability of the defence of consent is limited,
evidence of other sexual conduct of the victim is inadmissible and in camera
hearings are available to decide the admissibility/relevance of evidence.106
Moreover, in a number of judgments the ad hoc international criminal tribu-
nals have adopted an expansive approach to rape and other forms of sexual vio-
101 United Nations High Commissioner for Human Rights, Report to the Economic and Social Council,
UN Doc E/2008/76 (6 June 2008) [2].
102 United Nations High Commissioner for Human Rights, Report to the Economic and Social Council,
UN Doc E/2008/76 (6 June 2008).
103 See for example: Hilary Charlesworth and Christine Chinkin, The Boundaries of International Law
(Manchester University Press, Manchester, 2000) 233–236; Rebecca J Cook, ‘Introduction’ in
Rebecca J Cook (ed), Human Rights of Women: National and International Perspectives (University
of Philadelphia Press, Philadelphia, 1994) 12.
Publishing, Oxford, 2005) 47, 50.
105 See for example: arts 7 and 8 of the Rome Statute of the International Criminal Court, opened for
signature 17 July 1998, 2187 UNTS 90 (entered into force 1 July 2002).
106 See rules 63, 70, 71 and 72 of the Rules of Procedure and Evidence of the International Criminal Court
(adopted 3–10 September 2002).
lence, addressing many of the criticisms that feminists have directed towards
both domestic and international criminal law.107
One goal of this book is to contribute to the scholarly material arguing for
such a transformation to occur with respect to the international human rights
conceptualisation of torture and CIDT. Thus my argument that restrictions
on women’s reproductive freedom may be viewed through the prism of torture
and CIDT is part of a much broader argument that norms that are currently
gendered in definition, interpretation and implementation may be conceptu-
alised so as to address adequately issues that disproportionately affect men and
women alike. As previously stated, the traditional construction of the prohibi-
tion of torture and CIDT has been notably male centric. This book challenges
this male-centric paradigm by arguing that the law relating to torture and
CIDT must be conceptualised in a way that adequately embraces those issues,
such as restrictions on reproductive freedom, which disproportionately affect
women. By providing a comprehensive, systematic analysis of each aspect of
the law relating to torture and CIDT, the book builds on indications that the
international human rights regime is moving in this direction and provides
an approach to the interpretation of torture and CIDT that situates these
concepts within a gender-sensitive paradigm. It should be noted that this
book does not challenge the existing definition of torture, although this is a
potential sphere for future research. Rather, it challenges the way in which
the existing definition has traditionally been interpreted and implemented.
5 Structure and methodology

This book takes as its starting point the definition of torture in article 1 of
CAT. Pursuant to article 1 of CAT:
[T]he term ‘torture’ means any act by which severe pain or suffering,
whether physical or mental, is intentionally inflicted on a person for
such purposes as obtaining from him or a third person information or a
confession, punishing him for an act he or a third person has committed
or is suspected of having committed, or intimidating or coercing him or a
third person, or for any reason based on discrimination of any kind, when
such pain or suffering is inflicted by or at the instigation of or with the
consent or acquiescence of a public official or other person acting in an
official capacity. It does not include pain or suffering arising only from,
inherent in or incidental to lawful sanctions.108
107 See for example: Prosecutor v Akayesu Case No ICTR-96-4-T (2 September 1998) (Judgment);
Prosecutor v Sylvestre Gacumbitsi Case No ICTR-2001-64-T-A (7 July 2006) (Appeal Judgment);
Prosecutor v Dusko Tadic Case No. IT-94-1-T (7 May 1997) (Judgment); Prosecutor v Furundžija
Case No IT-95-17/1-T (10 December 1998) (Judgment); Prosecutor v Kunarac, Kovač and Vuković
Case No IT-96-23 and IT-96-23/1-A (12 June 2002) (Judgment); Prosecutor v Dragan Zelenović
Case No. IT-96-23/2-S (April 4, 2007) (Judgment).
108 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened
for signature 10 December 1984, 1465 UNTS 85, art 1(1) (entered into force 26 June 1987).
Introduction 25
This definition of torture provides the structure for a large component of the
book as Chapters 3 to 8 each examine an element of the definition of torture
and its application to restrictions on reproductive freedom.
Chapter 2 provides an overview of the approach of both the international
and regional systems to torture and CIDT. It discusses the nature and interp-
retation of the law relating to torture and CIDT at both the international
and regional levels and illustrates the way in which the concept of both
torture and CIDT has been extended from the traditional detainee context to
encompass other contexts. Accordingly, Chapter 2 provides the framework
for the ensuing discussion as to whether restrictions on reproductive freedom
may constitute torture or CIDT under international law.
The definition of torture set out in article 1 of CAT requires that the
victim be subjected to an ‘act’ which causes ‘severe pain or suffering, whether
physical or mental’. Chapter 3 discusses this requirement in the context of
restrictions on reproductive freedom. This chapter is divided into four parts.
Part 1 begins with a brief discussion of the meaning of an ‘act’ and argues
that both involuntary sterilisation and restrictive regulation of abortion can
be categorised as an ‘act’ that may or may not constitute an act of torture,
depending on whether the other elements of the definition can be established.
Following this discussion, the remainder of the chapter focuses on the mean-
ing of ‘severe pain or suffering, whether physical or mental’ and the applica-
tion of this element to restrictions on reproductive freedom. Part 2 introduces
the concept of the relative intensity of pain or suffering; in other words, it
introduces the concept of severity. Part 3 considers ‘severe pain or suffer-
ing’ in the context of restrictions on abortion and Part 4 considers ‘severe
pain or suffering’ in the context of involuntary sterilisation. Ultimately, it is
concluded that the requirement for an ‘act’ that causes ‘severe pain or suffer-
ing’ is frequently satisfied in the context of both restrictions on abortion and
involuntary sterilisation procedures.
In order to establish that certain conduct amounts to torture, it is neces-
sary to demonstrate not only that the conduct caused severe pain or suffering
but also that such pain or suffering was ‘intentionally inflicted’. Accordingly,
Chapter 4 of this book considers this element of the definition of torture
in the context of restrictions on reproductive freedom. Neither restrictions
on abortion nor involuntary sterilisation typically involves circumstances in
which severe pain and suffering is deliberately inflicted. However, it is argued
that in both of these circumstances, intention can nevertheless be established
if intention is interpreted to encompass foresight of pain and suffering. The
chapter presents the view that severe pain and suffering is a foreseeable con-
sequence of both restricting a woman’s access to abortion and sterilising
a woman without her full informed consent. Therefore, both restrictions
on abortion and involuntary sterilisation frequently entail the intentional
infliction of severe pain and suffering.
The definition of torture set out in article 1 of CAT requires not only
that an act that causes severe pain or suffering be intentionally inflicted on
a person, but that such pain or suffering is inflicted for one of the enumer-
ated purposes (or at least a comparable purpose). These purposes include
the extraction of information, punishment, intimidation, ‘or for any reason
based on discrimination of any kind’. Chapter 5 of this book posits that both
restrictions on abortion and involuntary sterilisation procedures frequently
constitute discrimination against women. This chapter is divided into two
parts. Part 1 focuses on the discriminatory nature of restrictions on abortion.
It examines the legal and social context of restrictions on access to abortion
before considering the purpose and impact of laws that restrict access to abor-
tion services. Part 2 focuses on involuntary sterilisation. It explores the notion
of involuntary sterilisation as a form of discrimination and invokes a number
of case studies to illustrate the point that involuntary sterilisation frequently
constitutes discrimination against women.
The final element of the article 1 definition of torture is the requirement
that the ‘pain or suffering’ in question ‘is inflicted by or at the instigation of
or with the consent or acquiescence of a public official or other person acting
in an official capacity.’ Chapter 6 of this book explores this requirement that,
in order for a State to violate the prohibition of torture, there must be a link
between State action and the pain or suffering experienced. This chapter is
divided into two parts. Part 1 considers direct State responsibility. It argues
that the requisite link with the State is always present in the case of legal
restrictions on abortion and that involuntary sterilisation procedures that
take place in public hospitals or by State-employed medical personnel meet
this requirement. Part 2 considers the notion of indirect State responsibility
and posits that the Committee against Torture (CAT Committee) is embrac-
ing an approach to the ‘public official’ requirement that is in line with the
‘due diligence’ approach of the broader international human rights regime
to the question of State responsibility for torture and CIDT. Consequently,
it is argued that a State may be held responsible for involuntary sterilisation
procedures, even absent a direct link, where it has failed to exercise ‘due
diligence’ and has failed to act to prevent, investigate or punish conduct that
would otherwise amount to torture. On this basis, the view is presented that
the ‘public official’ requirement is met when a State fails to exercise ‘due
diligence’ in relation to involuntary sterilisation procedures performed by
private actors.
Manfred Nowak, the Special Rapporteur from 2004 to October 2010, has
asserted that there is an additional requirement that is not explicitly stated in
the article 1 definition of torture – the requirement of ‘powerlessness.’ This
is the focus of Chapter 7 of this book, which is also divided into two parts.
Part 1 explores the notion that the victim must be powerless at the time
when severe pain or suffering is inflicted in order for the conduct in question
to constitute torture. Part 2 considers whether women who are legally denied
access to abortion services or who are subjected to involuntary sterilisation
procedures may be considered ‘powerless’ for this purpose. It is argued that
numerous factors combine to render women powerless in the context of both
Introduction 27
restrictions on abortion and involuntary sterilisation. The factors that form
the focus of Chapter 7 are the power of law and the power of the medi-
cal profession. Law and medicine, either separately or combined, frequently
exercise their power so as to render women powerless in the context of both
restrictions on abortion and involuntary sterilisation.
Up to this point, this book argues that both restrictions on abortion and
involuntary sterilisation procedures frequently fall within all of the elements
of the definition of torture set out in article 1 of CAT as well as the addi-
tional requirement of ‘powerlessness.’ The final sentence of article 1 states
that torture ‘does not include pain or suffering arising only from, inherent in
or incidental to lawful sanctions.’109 Chapter 8 considers the most common
interpretations of the lawful sanctions clause with a view to determining
whether restrictions on abortion or involuntary sterilisation procedures fall
within this exclusion. After acknowledging the possibility that the lawful
sanctions clause has no scope of application, the view is presented that, assum-
ing it does have a scope of application, ‘lawful sanctions’ means lawful under
international law. Ultimately, the chapter concludes that restrictions on abor-
tion and involuntary sterilisation procedures do not fall within the lawful
sanctions exemption.
After considering each aspect of the article 1 definition of torture, Chapter
9 turns to consider the meaning of CIDT pursuant to article 16 of CAT.
Article 16 states that:
Each State Party shall undertake to prevent in any territory under its
jurisdiction other acts of cruel, inhuman or degrading treatment or pun-
ishment which do not amount to torture as defined in article 1, when
such acts are committed by or at the instigation of or with the consent
or acquiescence of a public official or other person acting in an official
capacity.110
Chapter 9 is divided into four parts. Part 1 considers the consequences of cat-
egorising conduct as torture or CIDT. The notion that different consequences
attach to conduct categorised as torture versus conduct categorised as CIDT
provides a key explanation for why it is necessary to consider whether restric-
tions on reproductive freedom constitute torture or CIDT. Accordingly, after
considering the question of consequences, Part 2 of this chapter proceeds to
discuss the meaning of CIDT and Part 3 delves into an analysis of the distinc-
tion between torture and inhuman treatment. Finally, Part 4 considers the
concept of degrading treatment.
In Chapter 10, the final substantive chapter of the book, discussion returns
to the question of the proper characterisation of restrictions on reproductive
freedom. This chapter considers the approach of the CAT Committee and the
Human Rights Committee to the question of whether restrictions on abor-
tion and involuntary sterilisation constitute torture or CIDT. Ultimately, the
author concludes that whether restrictions on reproductive freedom constitute
torture or CIDT requires an analysis of whether, in a given factual context,
the legal criteria for torture or CIDT are met. Further, the chapter addresses
the concern that an expansive interpretation of the definition of torture may
lead to a dilution of the concept of torture and addresses the appropriateness
of adopting a normative approach to the question of whether torture or CIDT
is the proper category for restrictions on reproductive freedom.
Lastly, Chapter 11 is divided into three Parts. Part 1 provides a summary
of the arguments made and conclusions reached throughout the book. Part 2
considers the possible directions for future research and the chapter concludes
with Part 3, which adds ‘a final word.’
2 Overview of the prohibition of torture
and other cruel, inhuman or degrading
treatment or punishment
This chapter provides a basic overview of the approach of both the inter-
national and regional systems to the prohibition of torture and other cruel,
inhuman or degrading treatment or punishment (CIDT). It reveals the abso-
lute nature of the prohibition at both the international and regional levels
and illustrates the way in which the prohibition has been extended from the
traditional detainee context to encompass other contexts. Accordingly, this
chapter provides the framework for the ensuing discussion as to whether
restrictions on reproductive freedom may constitute torture or CIDT under
international human rights law.
Part 1 of this chapter provides an overview of the international law approach
to the right to be free from torture and CIDT. It refrains from engaging in
an expansive discussion of the international jurisprudence as such a discussion
begins in Part 3 of this chapter and continues throughout this book. Part 2 of
this chapter provides an overview of the approach of the regional systems to
the right to be free from torture and CIDT; it considers the approach of the
European system, the Inter-American system and the African system. Finally,
Part 3 discusses the progressive extension of the prohibition of torture and
CIDT to encompass situations beyond the traditional detainee context thereby
providing the background for the ensuing exposition of whether restrictions
on women’s reproductive freedom may be conceptualised as torture or CIDT.
1 The international system
(a) The international law approach

There is an absolute prohibition of torture and CIDT under international law.
This prohibition is enshrined in both treaties and customary international
law; in both international human rights law and international humanitarian
law; in both ‘hard’ and ‘soft’ law. Yet despite this widespread prohibition, tor-
ture remains a murky concept; unclear in its definition, frequently justified as
being necessary for the good of society, constantly evolving and acclimatising
to developments in the world order.
Various treaties contain articles prohibiting torture and CIDT. Article
7 of the International Covenant on Civil and Political Rights (ICCPR), the
primary international treaty dealing with civil and political rights, states that
‘[n]o one shall be subjected to torture or to cruel, inhuman or degrading treat-
ment or punishment.’1 Article 4 permits no derogation from this provision.
In addition to its inclusion in the ICCPR, a general human rights treaty, the
international community has also established a treaty the specific purpose of
which is to construct a framework for defining, implementing and enforcing
the prohibition of torture and CIDT. This treaty, known as the Convention
against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment (CAT), forms the backbone of the international structure for
combating torture and CIDT. As such, it is an extremely important document
and will be discussed in greater detail later.
While international human rights law has enshrined its abhorrence for
torture and CIDT in both a general and a specific treaty, international
humanitarian law has also entrenched the prohibition in treaty form. All
four of the Geneva Conventions prohibit torture in the context of both
international and non-international conflicts and all four categorise torture
as constituting a ‘grave breach’.2 More recently, the Statutes establishing
the International Criminal Tribunal for the former Yugoslavia (ICTY) and
International Criminal Tribunal for Rwanda (ICTR) both categorise torture
as a war crime and a crime against humanity.3 Similarly, the Rome Statute of
the International Criminal Court includes torture in its definition of crimes
against humanity and war crimes; it also specifies that persons subject to
investigation have a right to be free from torture.4
There are a number of declarations, rules, guidelines, principles and other
forms of ‘soft’ law that reaffirm the international prohibition of torture and
CIDT. Article 5 of the Universal Declaration of Human Rights, a declaration
so important that scholars debate whether it has become a part of customary
international law,5 states that ‘[n]o one shall be subjected to torture or to cruel,
1 International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999
UNTS 171 (entered into force 23 March 1976).
2 Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the
Field, opened for signature 12 August 1949, 75 UNTS 31, arts 3, 12, 50 (entered into force 21
October 1950); Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked
Members of the Armed Forces at Sea, opened for signature 12 August 1949, 75 UNTS 85, arts 3, 12, 50
(entered into force 21 October 1950); Geneva Convention relative to the Treatment of Prisoners of War,
opened for signature 12 August 1949, 75 UNTS 135, arts 3, 17, 87, 130 (entered into force 21
October 1950); Geneva Convention relative to the Protection of Civilian Persons in Time of War, opened
for signature 12 August 1949, 75 UNTS 287, arts 3, 32, 147 (entered into force 21 October 1950).
3 Statute of the International Criminal Tribunal for the former Yugoslavia, arts 2(b), 5(f), annexed to
Resolution 827, SC Res 827, UN SCOR, 48th sess, 3217th mtg, UN Doc S/RES/927 (1993);
Statute of the International Criminal Tribunal for Rwanda, arts 3(f), 4(a), annexed to Resolution
955, SC Res 955, UN SCOR, 49th sess, 3453rd mtg, UN Doc S/RES/955 (1994).
4 Rome Statute of the International Criminal Court, opened for signature 17 July 1998, 2187 UNTS
90, arts 7(f), 8(2)(a)(ii), 8(2)(c)(i), 55(1)(b) (entered into force 1 July 2002).
5 See for example: Oscar Schachter, International Law in Theory and Practice (Martinus Nijhoff,
Dordrecht/Boston/London, 1991) Ch XV.
Overview of the prohibition of torture etc. 31
inhuman or degrading treatment or punishment.’6 Like the Conventions, the
prohibition of torture is enshrined in both the general human rights declara-
tion as well as a declaration specifically created to deal with torture and CIDT.7
In addition, the Standard Minimum Rules for the Treatment of Prisoners
prohibit ‘cruel, inhuman or degrading punishments’ as well as ‘punishment
that may be prejudicial to the physical or mental health of a prisoner.’8 More
recently, Principle 6 of the Body of Principles for the Protection of All Persons
under Any Form of Detention or Imprisonment states that ‘[n]o persons under
any form of detention or imprisonment shall be subjected to torture or to cruel,
inhuman or degrading treatment or punishment.9 No circumstance whatever
may be invoked as a justification for cruel, inhuman or degrading treatment
or punishment.’10 The prohibition of torture has also been invoked in the
medical context as evidenced by the Principles of Medical Ethics relevant
to the Role of Health Personnel, particularly Physicians, in the Protection
of Prisoners and Detainees against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment. Principle 2 prohibits health person-
nel from engaging in acts ‘which constitute participation in, complicity in,
incitement to or attempts to commit torture or other cruel, inhuman or
degrading treatment or publishment’.11 Other examples of codes, principles,
manuals and the like that reiterate the prohibition of torture include the Code
UN Doc A/RES/810 (10 December 1948).
7 Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman
or Degrading Treatment or Punishment, GA Res 3452 (XXX), UN GAOR, 30th sess, 2433rd plen
mtg, UN Doc A/RES/3452(XXX) (9 December 1975) .
8 United Nations Standard Minimum Rules for the Treatment of Prisoners, ESC Res 663 C (XXIV), UN
ESCOR, 24th sess, Supp 1, UN Doc E/3048 (31 July 1957) [31]– [32(2)].
9 A footnote to this Principle clarifies that the term should be interpreted widely:
The term ‘cruel, inhuman or degrading treatment or punishment’ should be interpreted

so as to extend the widest possible protection against abuses, whether physical or mental,
including the holding of a detained or imprisoned person in conditions which deprive him,
temporarily or permanently, of the use of any of his natural senses, such as sight or hearing,
or of his awareness of place and the passing of time.
10 Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, GA Res
43/173, UN GAOR, 43rd sess, 76th plen mtg, UN Doc A/RES/43/173 (9 December 1988).
11 Principles of Medical Ethics relevant to the Role of Health Personnel, Particularly Physicians, in the
Protection of Prisoners and Detainees against Torture and Other Cruel, Inhuman or Degrading Treatment
or Punishment, GA Res 37/194, UN GAOR, 37th sess, 111th plen mtg, UN Doc A/RES/37/194
(18 December 1982). It should be noted that the role of doctors in perpetrating fundamental
human rights abuses in the reproductive context is not a new phenomenon. For example, as part
of its programme to strengthen the German nation and the ‘Aryan’ race the Nazi regime used
doctors to perpetrate numerous human rights abuses, including the performing of compulsory
abortions and compulsory sterilisation of those whose offspring were viewed as ‘undesirable’ and
compulsory pregnancy of those whose offspring were viewed as ‘desirable’. See: Trial of Ulrich
Greifelt and Others, in XIII Law Reports of the War Criminals 1 (UN War Crimes Commission
ed, 1949).
of Conduct for Law Enforcement Officials12 and the Manual on the Effective
Investigation and Documentation of Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment (Istanbul Protocol).13
In addition to the various treaties and other documents that affirm the
international legal prohibition of torture and CIDT, the United Nations
has also implemented a number of other mechanisms to safeguard this fun-
damental right. For example, in resolution 1985/33 the United Nations
Commission on Human Rights (now defunct) decided to appoint a Special
Rapporteur on torture and other cruel, inhuman or degrading treatment or
punishment (Special Rapporteur).14 The mandate of the Special Rapporteur
covers all countries and involves communicating with States with respect
to any questionable behaviour, undertaking fact-finding missions in vari-
ous countries, and submitting annual reports to the Human Rights Council
and the General Assembly.15 In addition, in 1981 the General Assembly
established the United Nations Voluntary Fund for Victims of Torture, the
purpose of which is to receive and distribute voluntary contributions ‘as
humanitarian, legal and financial aid to individuals whose human rights have
been severely violated as a result of torture and to relatives of such victims.’16
The discussion in this part demonstrates the extent of the international
system’s efforts to combat torture and CIDT. Although there are numer-
ous international instruments which exemplify this commitment, CAT, as
a multilateral treaty (with almost 150 ratifications) that deals specifically
and soley with the issue of torture and CIDT, is clearly the most globally
significant and influential instrument.17 It has been recognised as such on
numerous occasions. For example, in the ICTY case of Prosecutor v Mucić, Delić,
Landžo & Delalić,18 the Trial Chamber stated that ‘the definition of torture
contained in the Torture Convention includes the definitions contained in
both the Declaration on Torture and the Inter-American Convention and thus
reflects a consensus which the Trial Chamber considers to be representative
12 UN Doc A/RES/34/169 (17 December 1979).
13 UN Doc A/RES/55/89 (4 December 2000).
14 United Nations Commission on Human Rights, Resolution on Torture and Other Cruel, Inhuman
and Degrading Treatment or Punishment, resolution no 1985/33, UN doc E/CN.4/RES/1985/33 (1
April 1985).
15 The Human Rights Council is the body that has replaced the Commission on Human Rights.
See the General Assembly resolution establishing the Human Rights Council: GA Res 60/251,
UN GAOR, 60th sess, 72nd plen mtg, UN Doc A/RES/60/251 (3 April 2006).
16 GA Res 36/151, UN GAOR, 36th sess, 101st plen mtg, UN Doc A/RES/36/151 (16 December
1981) [1(a)].
17 According to former Special Rapporteur Nigel S Rodley, the definition of torture set out in art 1
of CAT has largely proved to have become the benchmark: Nigel S Rodley, ‘The Definition(s) of
Torture in International Law’ (2002) 55 Current Legal Problems 467, 474. See also: former Special
Rapporteur Manfred Nowak and Elizabeth McArthur who categorise CAT as the ‘[m]ost impor-
tant among all international instruments’ dealing with torture: Manfred Nowak and Elizabeth
McArthur, The United Nations Convention against Torture: A Commentary (Oxford University Press,
Oxford/New York, 2008) vi.
18 Case No IT-96-21, (20 February 2001) (Judgment).
of customary international law.’19 Accordingly, this book draws on the other
international and regional documents and jurisprudence but uses CAT as the
basis for formulating its approach and argument.20 Further, in light of the
seminal role of the ICCPR in the international human rights system, this
book also emphasises the approach of the Human Rights Committee (HRC)
in its interpretation of article 7.
(b) The United Nations Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment21
The United Nations General Assembly adopted CAT on 10 December 1984
and the Convention came into force on 26 June 1987. CAT was inspired pri-
marily by the 1975 Declaration on the Protection of All Persons from Being
Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment
or Punishment.22 According to J Herman Burgers and Hans Danelius, the
principal aim of CAT is to strengthen the existing prohibition of torture and
CIDT.23 The Convention adopts three different types of measure to achieve
the objective of combating torture and CIDT: ‘repression against individual
perpetrators of torture by means of domestic criminal law and the principle of
universal jurisdiction; recognition of the right of victims of torture to a remedy
and adequate reparation; and comprehensive obligations of States parties to
prevent torture and cruel, inhuman or degrading treatment or punishment.’24
The Convention is divided into three parts. Part I contains the substantive
provisions. Article 1 of the Convention defines ‘torture’;25 it states that:
For the purposes of this Convention, the term ‘torture’ means any act by
which severe pain or suffering, whether physical or mental, is intentionally
inflicted on a person for such purposes as obtaining from him or a third
19 Prosecutor v Mucić, Delić, Landžo & Delalić Case No IT-96-21, (20 February 2001) [459]
(Judgment). See also the decision of Giri v Nepal, Human Rights Committee, Communication
No 1761/2008, UN Doc CCPR/C/101/D/1761/2008 (27 April 2011) [7.5] in which the
Committee specifically noted that it was guided by the definition of torture contained in CAT.
20 As previously stated, this book places greater emphasis on the international system than on the
regional systems and, within the international context, focuses on international human rights
law as opposed to international humanitarian law.
22 UN Doc A/RES/3452(XXX) (9 December 1975).
23 J Herman Burgers and Hans Danelius, The United Nations Convention against Torture: A Handbook
on the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
(Martinus Nijhoff Publishers, Dordrecht, 1988) 1.
24 Manfred Nowak and Elizabeth McArthur, The United Nations Convention against Torture: A
Commentary (Oxford University Press, Oxford/New York, 2008) 8.
25 According to Burgers and Danelius, the so-called definition of torture is more accurately
understood as a ‘description of torture for the purpose of understanding and implementing the
Convention’: J Herman Burgers and Hans Danelius, The United Nations Convention against Torture:
A Handbook on the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment (Martinus Nijhoff Publishers, Dordrecht, 1988) 122.
person information or a confession, punishing him for an act he or a third
person has committed or is suspected of having committed, or intimidat-
ing or coercing him or a third person, or for any reason based on discrimi-
nation of any kind, when such pain or suffering is inflicted by or at the
instigation of or with the consent or acquiescence of a public official or
other person acting in an official capacity. It does not include pain or suf-
fering arising only from, inherent in or incidental to lawful sanctions.26
Article 2 obliges States Parties to take effective measures to prevent torture,
prohibits derogation under any circumstances,27 and clarifies that ‘following
orders’ is no justification for the perpetration of acts of torture. Article 3
prohibits a State Party from sending a person to another State where there
are ‘substantial grounds for believing that he would be in danger of being
subjected to torture.’ Articles 4 to 9 address the application of a State Party’s
penal law to those accused of committing acts of torture. For example, article
4 requires each State Party to criminalise and appropriately punish acts of
torture; articles 5 to 7 create a system of universal jurisdiction; and articles 8
and 9 tackle matters of extradition and mutual assistance.28
Pursuant to article 16, articles 10 to 13 apply with respect to both torture
and CIDT.29 Article 10 requires States Parties to ‘ensure that education and
information regarding the prohibition against torture are fully included in
the training of … persons who may be involved in the custody, interrogation
or treatment of any individual subjected to any form of arrest, detention or
imprisonment.’ Article 11 obliges States Parties to systematically review mat-
ters related to interrogation as well as arrangements for custody and treatment
of persons subjected to arrest, detention or imprisonment. Article 12 estab-
lishes a duty to investigate suspected acts of torture and article 13 provides
a right of complaint for victims. Article 14 provides a right to redress and
compensation for victims of torture and article 15 prohibits any statement
resulting from torture from being used as evidence in a court. Finally, article
16 requires States Parties to prevent CIDT.
Part II of CAT contains the implementation provisions that provide the
framework for the establishment and functioning of the Committee against
Torture (CAT Committee). Article 17 establishes the Committee, comprised
of 10 experts, and deals with a number of procedural aspects relating to the
election and tenure of Committee members. Article 18 clarifies additional
matters of procedure and article 19 sets up the process by which States Parties
27 The absolute nature of the prohibition of torture and CIDT is also reiterated in the preamble
to CAT. See: Manfred Nowak and Elizabeth McArthur, The United Nations Convention against
Torture: A Commentary (Oxford University Press, Oxford/New York, 2008) 18.
28 See: Chapter 9 of this book for a more detailed discussion of the concept of universal jurisdiction
and its applicability to acts of torture.
29 See: Chapter 9 of this book for a more detailed discussion of the concept of CIDT and of the
articles of CAT that apply with respect to torture and CIDT.
submit reports to the Committee on the ‘measures they have taken to give
effect to their undertakings’ under CAT; the Committee may then respond
by issuing ‘concluding observations.’30 Article 20 enables the Committee to
designate one or more of its members to make a confidential inquiry (prefer-
ably with the cooperation of the State Party) and to report to the Committee
urgently where the Committee is privy to ‘well-founded indications that
torture is being systematically practised in the territory of a State Party.’ The
findings, together with comments or suggestions, are then transmitted to the
State Party and a summary of the proceedings may also be published in the
Committee’s annual report. Article 21 creates an optional process whereby a
State Party may submit a communication to the Committee claiming that
another State Party is not fulfilling its treaty obligations (provided the com-
plaining State Party has itself agreed to the possibility that it may be the
subject of such a complaint).31 Article 22 creates an optional process whereby
an individual claiming to be a victim of a violation of the provisions of the
Convention by a State Party may submit a communication to the Committee;
once the communication has been dealt with the Committee forwards its
views to both the individual and the State Party concerned. Pursuant to arti-
cle 24, the Committee submits an annual report to the States Parties and to
the General Assembly of the United Nations.
Part III of CAT contains the final clauses. Most of this part concerns pro-
cedural issues relating to signature, ratification, accession, entry into force,
reservations, amendments and resolution of disputes regarding treaty inter-
pretation or application. However, it is worth noting that pursuant to article
28 ‘[e]ach State may, at the time of signature or ratification of this Convention
or accession thereto, declare that it does not recognize the competence of the
Committee provided for in article 20.’ As mentioned already, article 20 estab-
lishes the capacity of the Committee to conduct confidential inquiries into the
practices of a particular State Party.
In addition to the principal Convention, on 22 June 2006 the Optional
Protocol to the Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment (Optional Protocol)32 came into force.
The expressed purpose of the Optional Protocol is ‘to establish a system of
regular visits undertaken by independent international and national bodies to
30 All States Parties are obliged to submit regular reports to the Committee on how the rights
set out in CAT are being implemented. States must report initially one year after acceding to
the Convention and then every four years. The Committee examines each report and addresses
its concerns and recommendations to the State Party in the form of ‘concluding observations’
(previously known as ‘conclusions and recommendations’). See: Office of the United Nations
High Commissioner for Human Rights, Monitoring the prevention of torture and other cruel, inhuman
or degrading treatment or punishment http://www2.ohchr.org/english/bodies/ cat/index.htm at 19
April 2013.
31 It should be noted that to date, no such complaint has ever been made.
32 GA Res 57/199, UN GAOR, 57th sess, 77 th plen mtg, UN Doc A/RES/57/199 (11 December
2002).
places where people are deprived of their liberty, in order to prevent torture
and other cruel, inhuman or degrading treatment or punishment’.33 The
Optional Protocol then proceeds to establish an international body labelled
the Subcommittee on Prevention of Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment of the Committee against Torture
whose purpose is to: visit places under the jurisdiction and control of States
Parties where persons are deprived of their liberty and make recommenda-
tions to States Parties concerning protection against torture and CIDT; play
an active role in the establishment, functioning and strengthening of national
preventive mechanisms; and cooperate with other organisations ‘working
towards the strengthening of the protection of all persons’ against torture
and CIDT.34 In order to fulfil this mandate, the Subcommittee is required
to establish a program of regular visits to States Parties.35 In certain circum-
stances the Subcommittee is authorised to publish its report on a State Party.
Further, the Subcommittee is required to present a public annual report on
its activities to the CAT Committee.36 For their part, States Parties undertake
to cooperate with the Subcommittee;37 a failure to cooperate may result in
the Committee making a public statement on the matter or the report of the
Subcommittee on that particular State Party being published.38
As well as establishing the Subcommittee, the Optional Protocol also
establishes a framework for national preventive mechanisms ‘for the preven-
tion of torture at the domestic level.’39 It requires that States Parties guaran-
tee the independence of these mechanisms40 and allow these institutions to:
examine the treatment of persons deprived of their liberty on a regular basis,
make recommendations to the relevant authorities to improve the treatment
of such persons, and comment on legislation.41 States Parties are required to
cooperate with these national mechanisms.42
33 GA Res 57/199, UN GAOR, 57th sess, 77th plen mtg, UN Doc A/RES/57/199 (11 December
2002) art 1.
2002) art 11.
2002) art 13.
2002) art 16.
2002) arts 12, 14.
2002) art 16.
2002) art 17.
2002) art 18.
2002) art 19.
2002) art 20.
(c) Customary international law

It is commonly accepted that the prohibition of torture and CIDT has become
a part of customary international law.43 According to J Herman Burgers and
Hans Danelius, CAT is based on the presumption of an existing international
law prohibition of torture and CIDT.44 This is evidenced by the statement of
the General Assembly in its resolution adopting CAT that one of the objec-
tives of CAT is to achieve ‘a more effective implementation of the existing
prohibition under international and national law of the practice of torture and
other cruel, inhuman or degrading treatment or punishment.’45
The Filartiga case46 is perhaps the most frequently cited example of judicial
recognition of the prohibition of torture as a norm of customary international
law. In this case (decided before the formulation of CAT), the United States
Court of Appeals (Second Circuit) held that:
In light of the universal condemnation of torture in numerous interna-

tional agreements, and the renunciation of torture as an instrument of
official policy by virtually all of the nations of the world (in principle if
not in practice), we find that an act of torture committed by a state official
against one held in detention violates established norms of the interna-
tional law of human rights, and hence the law of nations.47
The court went on to state that the ‘prohibition is clear and unambiguous,
and admits of no distinction between treatment of aliens and citizens.’48
In addition to constituting a norm of customary international law, the
prohibition of torture has also been elevated to the status of a peremptory
43 See for example: J Herman Burgers and Hans Danelius, The United Nations Convention against
Torture: A Handbook on the Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment (Martinus Nijhoff Publishers, Dordrecht, 1988) 1, 12; Dinah Shelton,
‘Normative Hierarchy in International Law’ (2006) 100 American Journal of International Law
291; Nigel Rodley and Matt Pollard, ‘Criminalisation of Torture: State Obligations under the
United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment
or Punishment’ (2006) 2 European Human Rights Law Review 115, 115; Filartiga v Pena-Irala, 630
F 2d 876 (1980); Prosecutor v Furundzija Case No IT-95-17/1-T (10 December 1998) (Judgment)
[153]. Article 38(1)(b) of the Statute of the International Court of Justice describes custom as
‘evidence of a general practice accepted as law.’ Section 102(2) of the Third Restatement of the
Foreign Relations Law of the United States of 1987 states that customary law ‘results from a gen-
eral and consistent practice of States which is followed by them from a sense of legal obligation.’
(Martinus Nijhoff Publishers, Dordrecht, 1988) 1, 12.
45 GA Res 39/46, UN GAOR, 39th sess, 93rd plen mtg, UN Doc A/RES/39/46 (10 December
1984) (emphasis added).
46 Filartiga v Pena-Irala, 630 F 2d 876 (1980).
47 Filartiga v Pena-Irala, 630 F 2d 876, 880 (1980).
48 Filartiga v Pena-Irala, 630 F 2d 876, 884 (1980).
norm, otherwise known as a jus cogens norm.49 The elevated status of this pro-
hibition has been expressed on countless occasions.50 For example, in General
Comment 24 the HRC refers to the prohibition of torture as an example of
a peremptory norm51 and in his 1986 Report the Special Rapporteur specifi-
cally states that ‘the prohibition of torture can be considered to belong to the
rules of jus cogens.’52 In its decision of Prosecutor v Furundzija,53 the ICTY reit-
erates this sentiment and considers the consequences of attributing jus cogens
status to the prohibition of torture.54 For example, the tribunal acknowledges
the non-derogable characteristic of the norm; recognises the fundamental
and absolute nature of the value imbedded in the norm; declares that the
crime of torture is covered by universal jurisdiction; and excludes torture
from any statute of limitations, extradition or political offence exemption.55
Thus at the international level the prohibition of torture and CIDT is clearly
enshrined in international human rights law, international humanitarian law
as well as customary international law.
2 The regional systems

While the focus of this book is the approach of the international system to
torture and CIDT, it is useful to consider briefly the approach of the various
regional systems given that the approach at the regional level frequently
influences the approach at the international level and it is useful to consider
trends at the regional level when determining trends at the international
level.56 Accordingly, when discussing the willingness of the regional systems
49 According to Dinah Shelton ‘[t]he theory of jus cogens or peremptory norms posits that there
are rules from which no derogation is permitted and which can be amended only by a new
general norm of international law of the same value.’ See: Dinah Shelton, ‘International Law and
“Relative Normativity”’ in Malcolm D Evans (ed), International Law (Oxford University Press,
Oxford/New York, 2003) 145, 150.
50 It remains unclear whether the status of jus cogens applies to the prohibition of torture only or to
both torture and CIDT. For example, for a discussion of whether the prohibition of torture alone
or torture and CIDT constitutes a peremptory norm of international law see: Nigel Rodley and
Matt Pollard, The Treatment of Prisoners under International Law (3rd ed, Oxford University Press,
Oxford, 2009) 76–77.
51 Human Rights Committee, General Comment 24: Issues Relating to Reservations Made Upon
Ratification or Accession to the Covenant or the Optional Protocols Thereto, or in Relation to Declarations
under Article 41 of the Covenant, UN Doc CCPR/C/21/Rev.1/Add.6 (4 November 1994) [10].
52 Peter Kooijmans, Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment, UN Doc E/CN.4/1986/15 (19 February 1986) [3]. See
also: Manfred Nowak and Elizabeth McArthur, The United Nations Convention against Torture:
A Commentary (Oxford University Press, Oxford/New York, 2008) vi, 8; Manfred Nowak, UN
Covenant on Civil and Political Rights: CCPR Commentary (2nd ed, N P Engel Verlag, Kehl, 2005)
157.
53 Case No IT-95-17/1-T (10 December 1998) (Judgment).
54 Case No IT-95-17/1-T (10 December 1998) (Judgment) [153].
55 Case No IT-95-17/1-T (10 December 1998) (Judgment) [153]–[157].
56 This part considers the European system, the Inter-American system as well as the African
system. It should be noted that there is also an Arab Charter on Human Rights. However, the
to adopt a broad approach to the conceptualisation of torture and CIDT, this
part to some extent pre-empts the discussion in Part 3, which considers the
extension of the prohibition to encompass situations beyond the traditional
detainee context at the international level.
(a) Europe
The European Union (EU) has taken a firm stance against torture and inhu-
man or degrading treatment or punishment (IDT) and has implemented a
sophisticated system aimed at combating such conduct. The key components
of this system are article 3 of the European Convention for the Protection
of Human Rights and Fundamental Freedoms57 (ECHR) and the European
Convention for the Prevention of Torture and Inhuman or Degrading
Treatment or Punishment58 (European Torture Convention). Both of these
treaties refer to ‘inhuman or degrading treatment or punishment’ thereby
excluding the adjective ‘cruel’, which is included in CAT. The word ‘cruel’
was omitted because it was considered to be too subjective a term.59 This
omission is of no practical consequence ‘since the sense of “cruel” is equally
covered by “inhuman”.’60
While these two treaties comprise the core of the European approach
to combating torture, it should be noted that they do not exist in isola-
tion. For example, article 4 of the Charter of Fundamental Rights of the
European Union prohibits torture and IDT. In addition, the EU General
Affairs Council adopted guidelines on 9 April 2001 (amended in 2008) on
EU policy towards non-EU countries on torture and other CIDT; the objec-
tive of these guidelines is ‘to provide the EU with an operational tool … to
support and strengthen ongoing efforts to prevent and eradicate torture and
ill-treatment in all parts of the world’.61 The EU also ‘pursues a policy of rais-
ing the issue of torture systematically within the framework of its political
dialogue with third countries’ and in December 2007 completed its ‘global
Arab human rights framework is still in its infancy and therefore does not form part of this
discussion. For more information on the Arab Charter on Human Rights and the League of
Arab States see: Mervat Rishmawi, ‘The Arab Charter on Human Rights and the League of Arab
States: An Update’ (2010) 10(1) Human Rights Law Review 169.
57 Opened for signature 4 November 1950, ETS 5 (entered into force 3 September 1953).
58 Opened for signature 26 November 1987, ETS 126 (entered into force 1 February 1989).
60 John Graham Merrills and Arthur Henry Robertson, Human Rights in Europe: A Study of the
European Convention on Human Rights (4th ed, Manchester University Press, Manchester, 2001)
35.
61 European Union, Guidelines to EU Policy Towards Third Countries on Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment (2001) http://europa.eu/legislation_summaries/
human_rights/ human_rights_in_third_countries/r10109_en.htm at 19 April 2013.
action plan’ of demarches to all countries on the issue of torture.62 Further,
the European Community Regulation on trade in goods that could be used
for capital punishment, torture or other CIDT63 entered into force on 30 July
2006 and each year the EU adopts a Declaration to mark the International
Day in Support of Victims of Torture.64
(i) European Convention for the Protection of Human Rights and Fundamental
Freedoms65 (ECHR)
Article 3 of the ECHR states that ‘[n]o one shall be subjected to torture or
to inhuman or degrading treatment or punishment.’ Article 15 of the ECHR
identifies article 3 as one of the articles from which no derogation is permit-
ted. Further, the European Court of Human Rights (European Court) has
explicitly endorsed the definition of torture set out in article 1 of CAT.66
The nature of the obligation contained in article 3 is threefold. First, the
State has a negative obligation to refrain from engaging in acts of torture or
IDT.67 Second, the State has a positive obligation to investigate allegations of
violations of article 3.68 Third, the State has a positive obligation to protect
against violations by private individuals.69 For example, in the case of MC v
Bulgaria,70 the court found a violation of article 3 on the basis that Bulgaria
had failed to properly investigate a woman’s allegations of date rape.71
The jurisprudence of the European Court with respect to article 3 is
particularly interesting as the court seems to be adopting an increasingly
expansive interpretation of the meaning of torture and IDT. In fact, the court
has specifically stated that:
62 European Commission, EU Policy against Torture and Ill-Treatment: Prevention of Torture and
Rehabilitation of Victims (2009) http://eeas.europa.eu/_human_rights/torture/docs/background_
en.pdf at 19 April 2013.
63 Council of the European Union, Council Regulation (EC) No 1236/2005 of 27 June 2005 concerning
trade in certain goods which could be used for capital punishment, torture or other cruel, inhuman or degrad-
ing treatment or punishment [2005] OJ L 200/1 (entered into force 30 July 2006).
64 See for example European Union, Declaration by the Presidency on behalf of the European Union on
the International Day in Support of Victims of Torture (2008) http://www.eu2008.si/en/News_and_
Documents/ CFSP_Statements/June/0626MZZ_victims_of_torture.html at 19 April 2013.
65 Opened for signature 4 November 1950, ETS 5 (entered into force 3 September 1953).
66 Nigel S Rodley, ‘The Definition(s) of Torture in International Law’ (2002) 55 Current Legal
Problems 467, 475.
67 Uğur Erdal and Hasan Bakirci, Article 3 of the European Convention on Human Rights: A Practitioner’s
Handbook, World Organisation Against Torture (July 2006) 215.
70 (2003) XII Eur Court HR 39272/98.
71 It should be noted that in the case of Aydın v Turkey (1997), VI Eur Court HR 23178/94 [86] the
court commented that in the particular context of that case the rape of the female detainee by the
gendarmes was in itself sufficiently abhorrent behaviour to constitute torture pursuant to art 3.
Certain acts which were classified in the past as ‘inhuman and
degrading treatment’ as opposed to ‘torture’ could be classified differ-
ently in the future. It takes the view that the increasingly high stand-
ard being required in the area of the protection of human rights and
fundamental liberties correspondingly and inevitably requires greater
firmness in assessing breaches of the fundamental values of democratic
societies.72
In the 1978 case of Ireland v United Kingdom,73 the court held that certain
interrogation techniques that caused ‘intense physical and mental suffering’
and ‘led to acute psychiatric disturbance’ amounted to IDT. In the 2001 case
of Peers v Greece,74 the court found that the applicant’s prison conditions were
unacceptable so as to constitute degrading treatment pursuant to article 3.
In the 2005 case of Sarban v Moldova,75 the court found that handcuffing and
confining the applicant to a cage during hearings caused unnecessary humili-
ation constituting degrading treatment. Accordingly, it seems that over the
years the threshold required for conduct to constitute a violation of article 3
has gradually been lowered.
The jurisprudence of the court in this area is not limited to cases relating
to detention. In Selcuk and Asker v Turkey,76 the court held that the destruc-
tion by security guards of the applicants’ homes and property constituted
inhuman treatment pursuant to article 3. In Tyrer v United Kingdom,77 a case
involving judicial corporal punishment, the court held that the applicant ‘was
treated as an object in the power of the authorities’ and that the punishment
‘constituted an assault on precisely that which it is one of the main purposes
of article 3 to protect, namely a person’s dignity and physical integrity.’78
The application of article 3 was further expanded in D v United Kingdom,79
where the court held that the United Kingdom was prohibited from deport-
ing a person suffering from advanced stages of AIDS to St Kitts, where such
deportation would shorten his life expectancy, on the grounds that this would
constitute inhuman treatment.
Further, after an initial reluctance to categorise restrictions on reproduc-
tive freedom as a violation of article 3,80 in recent years the European Court
has demonstrated a willingness to view both restrictions on access to abortion
72 Selmouni v France (1999) V Eur Court HR 25803/94.
73 (1978) 25 Eur Court HR (ser A) [167].
74 (2001) III Eur Court HR 28524/95.
75 (2005) Eur Court HR 3456/05.
76 (1998) II Eur Court HR 23184/94; 23185/94.
77 (1978) 26 Eur Court HR (ser A).
78 Tyrer v United Kingdom (1978) 26 Eur Court HR (ser A) [33].
79 (1997) III Eur Court HR 30240/96.
80 See for example: A, B and C v Ireland (2010) Eur Court HR 25579/05, in which the European
Court declined to find a violation of art 3 in circumstances where Ireland’s restrictive abortion
laws resulted in three women travelling to the United Kingdom to have their pregnancies
terminated.
services and involuntary sterilisation within the article 3 paradigm. For
example, in the case of RR v Poland,81 the court found a violation of article 3
in circumstances where a woman was denied timely prenatal testing and was
refused an abortion despite clear indications of foetal abnormality. Further,
in yet another recent case involving Poland, the European Court found a
violation of article 3 in circumstances where a teenager who had become
pregnant as a result of rape was confronted with considerable obstacles in
her efforts to access an abortion to which she was legally entitled.82 In the
context of involuntary sterilisation, in a trilogy of cases spanning from 2011
to 2012 the European Court held that the sterilisation of Romani women in
Slovakia, which occurred without their informed consent while they were
undergoing caesarean sections at public hospitals, constituted a violation of
article 3.83
(ii) European Convention for the Prevention of Torture and Inhuman or Degrading
Treatment or Punishment84 (European Torture Convention)
On 1 February 1989 the European Torture Convention came into force. The
aim of the Convention is essentially to create ‘non-judicial means of a pre-
ventive character’ to combat torture and IDT.85 It has created a Committee,
called the European Committee for the Prevention of Torture and Inhuman
or Degrading Treatment or Punishment.86 This Committee consists of a
number of members equal to that of the Parties; it conducts periodic visits
to places where persons are deprived of their liberty in all States which are a
party to the Convention.87 Following such a visit the Committee compiles
a report containing any recommendations; if the State in question fails to
cooperate or properly respond to such recommendations the Committee may
make a public statement on the matter.88 While the Convention is based on
the principle of cooperation, the Committee is empowered to make ad hoc
visits to States where there is evidence that raises concerns with respect to the
81 (2011) Eur Court HR 27617/04.

82 See: P and S v Poland (2012) Eur Court HR 57375/08.
83 See: VC v Slovakia (2011) Eur Court HR 18968/07, NB v Slovakia (2012) Eur Court HR
29518/10, IG and Ors v Slovakia (2012) Eur Court HR 15966/04.
84 Opened for signature 26 November 1987, ETS 126 (entered into force 1 February 1989).
85 European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment,
opened for signature 26 November 1987, ETS 126, preamble (entered into force 1 February
1989).
opened for signature 26 November 1987, ETS 126, art 1 (entered into force 1 February 1989).
opened for signature 26 November 1987, ETS 126, arts 4, 7 (entered into force 1 February
1989).
opened for signature 26 November 1987, ETS 126, art 10 (entered into force 1 February
1989).
behaviour of a particular State.89 It should be noted that this Convention does
not have an impact on the obligations of States Parties to the ECHR; thus it
does not affect the rights of individuals to petition the European Court alleg-
ing violations of article 3.90
Antonio Cassese presents the rationale for the Convention as twofold. In
his words, ‘torture and inhuman and degrading treatment are social diseases
whose only permanent cure is the complete eradication of the conditions that
give rise to them.’91 Further, the Convention ‘could serve as a prototype for
testing the validity and practicality of the system at the regional level before
it came to be implemented at the more difficult universal level.’92 This is
indeed what occurred – the Optional Protocol, discussed earlier, was mod-
elled on the European Torture Convention (although there remain certain key
differences between the Committees).93
In practice, while the Committee began its work by considering general
conditions of detention in places such as prisons and psychiatric facilities,
it has expanded its sphere of activity to consider more specific issues such
as those arising from immigration detention, juvenile detention and the
particular issues that confront women deprived of their liberty.94 One of the
consequences of the Committee’s investigations, conclusions and recommen-
dations on a broad range of detention-related issues has been the development
of a body of standards. For example, the Committee’s work has been integral
to the establishment of an evolving body of standards with respect to the
conduct of interrogations.95 Further, although the explanatory report to the
European Torture Convention specifically states that obligations of Parties
under the ECHR remain unaffected by the European Torture Convention, it
is clear that the Committee has indirectly affected the outcome of cases before
the European Court as the court has invoked committee reports to assist
in its determination of specific cases.96 The opposite is also true in that the
opened for signature 26 November 1987, ETS 126, art 7 (entered into force 1 February 1989).
opened for signature 26 November 1987, ETS 126, art 17, explanatory report [91]–[92] (entered
into force 1 February 1989).
91 Antonio Cassese, ‘A New Approach to Human Rights: The European Convention for the
Prevention of Torture’ (1989) 83 American Journal of International Law 128, 133.
92 Antonio Cassese, ‘A New Approach to Human Rights: The European Convention for the
Prevention of Torture’ (1989) 83 American Journal of International Law 128, 133.
Commentary (Oxford University Press, Oxford/New York, 2008) 1154–1155.
94 See: European Committee for the Prevention of Torture and Inhuman or Degrading Treatment
or Punishment, CPT: Annual General Reports (1989 – 2012) Council of Europe http://cpt.coe.int/
en/docsannual.htm at 19 April 2013.
95 Jim Murdoch, ‘The Impact of the Council of Europe’s “Torture Committee” and the Evolution of
Standard-Setting in Relation to Places of Detention’ (2006) 2 European Human Rights Law Review
159, 173.
96 See for example: Dougoz v Greece (2001) II Eur Court HR 40907/98; Lorsé v Netherlands (2003)
Eur Court HR 52750/99.
jurisprudence of the court has influenced the Committee’s expectations and
standards.97 Thus the Torture Convention has established a committee whose
work has become an integral part of the European human rights system and
the evolution of a European human rights culture.
(b) America
The Inter-American system, like the international system and the European
system, deals with torture via both general and specific mechanisms. The
American Convention on Human Rights98 (ACHR) is the system’s general
human rights treaty. Article 5(2) of the ACHR is similar to article 7 of the
ICCPR and article 3 of the ECHR. It states that ‘[n]o one shall be subjected
to torture or to cruel, inhuman, or degrading punishment or treatment.’
Pursuant to article 27 this provision is non-derogable.99
The Inter-American system addresses the issue of torture and CIDT in
a specific treaty entitled the Inter-American Convention to Prevent and
Punish Torture100 (Inter-American Torture Convention). This specific treaty
is similar to CAT in its focus. It defines torture in article 2 as:
[A]ny act intentionally performed whereby physical or mental pain or

suffering is inflicted on a person for purposes of criminal investigation, as
a means of intimidation, as personal punishment, as a preventive meas-
ure, as a penalty, or for any other purpose. Torture shall also be under-
stood to be the use of methods upon a person intended to obliterate the
personality of the victim or to diminish his physical or mental capacities,
even if they do not cause physical pain or mental anguish.101
While this definition of torture is clearly different from the CAT defini-
tion (for example, there is no ‘severity’ requirement, the purpose for which
torture may be perpetrated is not limited and methods intended to ‘oblit-
erate the personality of the victim’ are included), the Inter-American Torture
Convention has much in common with CAT. For example, like CAT, the
Inter-American Torture Convention contains a ‘public official’ require-
ment, explicitly removes the defence of ‘superior orders’ and renders ‘torture
97 Jim Murdoch, ‘The Impact of the Council of Europe’s “Torture Committee” and the Evolution
of Standard-Setting in Relation to Places of Detention’ (2006) 2 European Human Rights Law
Review 159, 169.
98 American Convention on Human Rights, opened for signature 22 November 1969, 1144 UNTS
123 (entered into force 18 July 1978).
123, arts 5(2), 27 (entered into force 18 July 1978).
100 Opened for signature 9 December 1985, OAS Treaty Series 67 (entered into force 28 February
1987).
101 Inter-American Convention to Prevent and Punish Torture, opened for signature 9 December 1985,
OASTS 67, art 2 (entered into force 28 February 1987).
evidence’ inadmissible.102 Like CAT, the Inter-American Torture Convention
requires States Parties to investigate, prevent and punish acts of torture and
to compensate victims.103 It also provides for extradition and creates a system
of universal jurisdiction.104
In addition, the Inter-American Torture Convention expressly states that it
does not limit the provisions of the ACHR and references the role of the Inter-
American Commission on Human Rights (Inter-American Commission)
in combating torture and CIDT.105 Significantly, unlike CAT, the Inter-
American Torture Convention does not establish a committee to adjudicate
alleged violations of the Convention. However, while pursuant to article 1 of
the Statute of the Inter-American Court of Human Rights the court’s purpose
is to apply and interpret the ACHR, in order to apply and interpret article
5(2) the court frequently invokes the terms of the Inter-American Torture
Convention. Thus while there is no judicial body charged specifically with
interpreting and applying the Inter-American Torture Convention, in reality
the Inter-American Court of Human rights assumes this role as part of its
adjudication of article 5(2) of the ACHR.106
In light of Latin America’s legacy of oppressive regimes, the subject matter
of cases alleging torture or CIDT that have come before the Inter-American
Court has tended to be more traditional than some of those appearing before
the European Court. In other words, the vast majority of Inter-American cases
dealing with violations of the prohibition of torture and CIDT have mani-
fested themselves in the context of interrogation, detainment or other ‘classic’
forms of abuse by those in power. For example, in the seminal case of Velásquez
Rodríguez v Honduras,107 where the victim ‘disappeared’, the court held that
there was sufficient evidence to conclude that the State had violated article
5 of the ACHR. In Aloeboetoe v Suriname,108 the court considered a situation
in which soldiers beat, stabbed, urinated on and shot unarmed Maroons.109
Suriname conceded a violation of article 5 and the court ordered payment of
OASTS 67, arts 3, 4, 10 (entered into force 28 February 1987).
OASTS 67, arts 6–9 (entered into force 28 February 1987).
OASTS 67, arts 12–14 (entered into force 28 February 1987).
OASTS 67, arts 16, 17 (entered into force 28 February 1987).
106 See for example: Miguel Castro-Castro Prison v Peru [2006] Inter-Am Court HR (ser c) No 160;
Bámaca-Velásquez v Guatemala [2000] Inter-Am Court HR (ser c) No 70; Blanco-Romero et al v
Venezuela [2005] Inter-Am Court HR (ser c) No 138; Paniagua-Morales et al v Guatemala [1998]
Inter-Am Court HR (ser c) No 37.
107 Velásquez Rodríguez v Honduras [1988] Inter-Am Court HR (ser c) No 4.
108 Aloeboetoe v Suriname [1991] Inter-Am Court HR (ser c) No 11.
109 The Oxford English Dictionary defines ‘Maroon’ as: ‘A member of a community of black slaves
who had escaped from their captivity or (subsequently) of their descendants, esp. those who
settled in the mountains and forests of Suriname and the West Indies.’ See Oxford English
Dictionary Online (2009) dictionary.oed.com at 19 April 2013.
reparations. Further, Suárez-Rosero v Ecuador110 is an example of a case in which
the court found a violation of article 5 based on evidence that the applicant
had been detained incommunicado in appalling conditions.
Despite the fact that most disputes dealt with by the Inter-American Court
have concerned torture or CIDT as traditionally conceptualised, within the
context of this traditional framework the court has begun to grapple with
issues that, to some extent, stretch this traditional understanding. For exam-
ple, in the case of Velásquez Rodríguez v Honduras,111 the court held that not
only is a State Party to the Convention prohibited from violating a provision
itself, but each State Party is under a duty to exercise due diligence to pre-
vent private actors from violating the Convention. Following the European
case of Tyrer v United Kingdom112 (mentioned earlier), in Caesar v Trinidad
and Tobago,113 the Inter-American Court decided that corporal punishment
in the form of flogging constitutes torture. Further, in the case of Miguel
Castro-Castro Prison v Peru,114 the court exhibited sensitivity to gender-based
concerns when it took account of all of the following factors to conclude
that there had been a violation of article 5: the way in which state agents
violently attacked prisoners, including pregnant women; the forced nudity
of female prisoners in the presence of male state agents; the failure to provide
personal hygiene products to women; instances of digital penetration; and
conditions of confinement as well as lack of pre- and postpartum care. Such a
gender-sensitive approach was also demonstrated in the case of González et al v
Mexico,115 where the court, acknowledging the systemic and structural nature
of gender-based violence, found that Mexico had violated article 5 in circum-
stances where police failed to investigate the disappearances and murders of
three poor migrant women.
In addition to the role of the court, it should be noted that the Inter-
American Commission plays a significant role in the region’s efforts to combat
torture and CIDT. It is empowered to conduct onsite visits to member States,
release reports detailing the human rights predicaments of the different
member States, and make general recommendations to member States. In
addition, the Commission is authorised to hear and decide individual com-
plaints such that the court can only hear cases that have already been pro-
cessed by the Commission (and only the Commission and State Parties to the
ACHR may present cases to the court). In recent years, the determination of
such individual complaints has formed the bulk of the Commission’s work
and the number of visits and reports has decreased.116 One significant example
110 Suárez-Rosero v Ecuador [1997] Inter-Am Court HR (ser c) No 35.

111 [1988] Inter-Am Court HR (ser c) No 4.
115 [2009] Inter-Am Court HR (ser c) No 205 also known as the ‘Cotton Field case’.
116 Christina M Cerna, ‘The Inter-American System for the Protection of Human Rights’ (2004)
16 Florida Journal of International Law 195.
of a decision of the Commission is Mejía v Perú,117 in which the Commission
found that rape may constitute torture in certain circumstances.
(c) Africa
Henry Steiner, Philip Alston and Ryan Goodman describe the African human
rights regime as the ‘newest, the least developed or effective (in relation to
the European and Inter-American regimes), the most distinctive and the
most controversial of the three established regional human rights regimes.’118
The African Charter on Human and Peoples’ Rights was adopted on 27 June
1981 and came into force in 1986.119 The African Commission on Human
and Peoples’ Rights was established under Part II, Chapter I of the African
Charter. To facilitate the Commission’s role as the promoter and protector of
human rights each State Party is required to submit a report every two years
on its compliance with the Charter and in 2001 the Commission started to
issue concluding observations on these reports.120 In exercising its role as
interpreter of the Charter, the Commission is empowered to hear complaints
initiated by States or individuals alleging violations of the Charter. Further,
since 1995 the Commission has conducted onsite visits the purposes of which
range from promotional to protective. In 2004 the African Court on Human
and Peoples’ Rights came into operation; the expressed purpose of the court
was to ‘complement and reinforce the functions’ of the Commission.121 In
July 2008 the Member States of the African Union adopted the Protocol on
the Statute of the African Court of Justice and Human Rights.122 The aim of
this protocol is to merge the African Court on Human and Peoples’ Rights
with the Court of Justice of the African Union to establish a single court, to
be known as the African Court of Justice and Human Rights. The proposed
court will have broad jurisdiction and broad standing provisions.123 It will
enter into force 30 days after the deposit of the instruments of ratification by
15 Member States.124
117 [1996] Inter-Am Comm HR (ser l) No 5/96.

118 Henry J Steiner, Philip Alston and Ryan Goodman, International Human Rights in Context (3rd
ed, Oxford University Press, Oxford/New York, 2008) 1062–1063.
119 African Charter on Human and Peoples’ Rights, opened for signature 27 June 1981 CAB/LEG/67/3
rev 5, 21 ILM 58 (1982) (entered into force 21 October 1986).
120 It should be noted that neither the State reports nor the concluding observations are published;
they are therefore of limited effect.
121 Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court
on Human and Peoples’ Rights, opened for signature 9 June 1998 CAB/LEG/665 (entered into
force 1 January 2004), preamble.
122 Protocol on the Statute of the African Court of Justice and Human Rights, opened for signature 1 July
2008 (not yet in force). At the time of writing, only three States have ratified this instrument.
123 See arts 28–30 of the Protocol on the Statute of the African Court of Justice and Human Rights, opened
for signature 1 July 2008 (not yet in force).
124 See art 9 of the Protocol on the Statute of the African Court of Justice and Human Rights, opened for
signature 1 July 2008 (not yet in force).
Article 5 of the African Charter prohibits torture and CIDT, placing spe-
cial emphasis on the inherent dignity of each human being. The Commission
has decided a number of cases on this issue. In the case of Media Rights
v Nigeria,125 the Commission asserted that ‘the term “cruel, inhuman or
degrading treatment or punishment” is to be interpreted so as to extend to
the widest possible protection against abuses, whether physical or mental.’126
Following the lead of the European Court in Tyrer v United Kingdom,127 the
African Commission has found shari’a punishments such as the penalty of
lashes to be in violation of article 5. For example, in the case of Curtis
Francis Doebbler v Sudan,128 eight girls were subjected to lashes carried out
in public on their bare backs, in unsanitary conditions, for the offence of
violating public order by wearing trousers and interacting with boys in an
‘inappropriate’ manner. In finding a violation of article 5, the Commission
stated that CIDT ‘includes not only actions which cause serious physical or
psychological suffering, but which humiliate or force the individual against
his will or conscience.’129 Further, following the lead of the CAT Committee
the Commission has found that the destruction of people’s homes may also
constitute cruel and inhuman treatment.130
In 2002 the African Commission reinforced its commitment to combat-
ing torture by passing a Resolution on Guidelines and Measures for the
Prohibition and Prevention of Torture, Cruel, Inhuman or Degrading
Treatment or Punishment in Africa.131 In this Resolution, the Commission
adopts the ‘Robben Island Guidelines’ and establishes a Follow-up Committee
to promote and implement the Guidelines.132 The Robben Island Guidelines
consist of three parts: the first part addresses the prohibition of torture, the
second part deals with the need to prevent acts of torture and the third part
considers the needs of the victims.
In Part I (addressing the prohibition) the Guidelines encourage States to:
ratify all relevant regional and international instruments, cooperate with the
international mechanisms and criminalise torture in the domestic context.
The Guidelines specifically state that ‘States should pay particular attention
125 Communication 224/98.

126 Media Rights v Nigeria, Communication 224/98 (October 1998) [71].
127 (1978) 26 Eur Court HR (ser A) [33].
128 Communication 236/2000 (May 2003).
129 Communication 236/2000 (May 2003) [36].
130 Sudan Human Rights Organisation & Centre on Housing Rights and Evictions (COHRE) v Sudan,
Communication 279/03-296/05 (May 2009).
131 African Commission Resolution, 32nd sess, ACHPR/Res.61(XXXII)02 (17–23 October
2002).
132 Bronwen Manby comments that ‘[a]t the 35th Ordinary Session in 2004, a follow-up commit-
tee on the Guidelines was appointed, including non-commissioners as members. The commit-
tee has met a couple of times, but little concrete activity had been carried out at the time of
writing’: Bronwen Manby, ‘Civil and Political Rights in the African Charter on Human and
Peoples’ Rights: Articles 1–7’ in Malcolm Evans and Rachel Murray (eds), The African Charter
on Human and Peoples’ Rights (2nd ed, Cambridge University Press, Cambridge, 2008) 192.
to the prohibition and prevention of gender-related forms of torture and ill-
treatment and the torture and ill-treatment of young persons.’133 In addition,
the Guidelines contain a ‘non-refoulement’ provision, a provision urging
States to combat impunity and a provision stipulating the need for effective
complaints and investigation procedures. In Part II, which deals with the
prevention of torture, the Guidelines provide for procedural safeguards to be
instituted with respect to persons deprived of their liberty and for the pre-
trial process to be carefully regulated. In addition, the Guidelines address the
issue of conditions of detention, urge States to establish effective mechanisms
of oversight and encourage education and training programs. In Part III, the
Guidelines highlight the need to protect victims from any potential future
threats and stress the obligation on States to provide appropriate reparations.
Thus the regional systems have all enshrined the prohibition of torture and
CIDT in treaty form and have demonstrated a willingness to adopt a broad
approach to the question of what conduct constitutes torture and CIDT.
The remaining part of this chapter further explores this notion that the
conceptualisation of torture and CIDT is becoming increasingly broad at the
international level.
3 Extension of the prohibition to encompass situations beyond

the traditional detainee context
The traditional context for the perpetration of torture is the interrogation (as
well as punishment or intimidation) of a detainee.134 Accordingly, torture is
traditionally perpetrated on a victim who is detained behind closed doors.135
Thus J Herman Burgers and Hans Danelius refer to the connection between
torture and the deprivation of liberty and José Alvarez maintains that the object
and purpose of CAT was to prevent torture and CIDT when seeking informa-
tion in the course of interrogations.136 In the words of Nigel Rodley and Matt
Pollard, ‘torture has traditionally been a method of arriving at the “truth”, of
determining responsibility for offences by means of eliciting confessions or
other information.’137 Consequently, traditional methods of torture include:
133 Robben Island Guidelines, African Commission Resolution, 32nd sess, ACHPR/
Res.61(XXXII)02, (17–23 October 2002) [5].
134 See for example, Nigel Rodley and Matt Pollard, The Treatment of Prisoners under International
Law (3rd ed, Oxford University Press, Oxford, 2009) 8–11.
Commentary (Oxford University Press, Oxford/New York, 2008) 2; Nigel Rodley and Matt
Pollard, The Treatment of Prisoners under International Law (3rd ed, Oxford University Press,
Oxford, 2009) 11.
(Martinus Nijhoff Publishers, Dordrecht, 1988) 120; José E. Alvarez, ‘Torturing the Law’
(2006) 37 Case Western Reserve Journal of International Law 175, 183.
137 Nigel Rodley and Matt Pollard, The Treatment of Prisoners under International Law (3rd ed,
Oxford University Press, Oxford, 2009) 8.
Short-shackling, suspension in painful positions such as ‘strapado’ or
‘Palestinian hanging’, stripping victims naked and subjecting them to
various forms of beatings, electric shocks, rape and other sexual assaults,
repeated immersion into water while being fixed on a board (‘water
boarding’) or into a mixture of blood, urine, vomit and excrement (‘sub-
marino’), simulated executions or amputations.138
Rodley and Pollard provide a summary of the history of torture, thereby

demonstrating that torture has traditionally been perpetrated in the con-
text of the interrogation of a detainee. In ancient Greece and the Roman
Empire torture was used to extract the truth in serious criminal cases.139
In early medieval Europe an accused person’s ability to withstand pain was
viewed as an indication of guilt or innocence and 12th-century Europe saw
the increased use of torture as a means of obtaining a confession.140 Torture
continued as a component of the inquisitorial process until the mid-18th
century.141 During the Enlightenment torture was ‘abolished as part of legal
process and was virtually gone from Europe’ by the end of the 18th century;
a state that remained until the 1930s’ rise of the Nazi party in Germany.142
Torture was widely perpetrated during World War II following which, as
discussed earlier in this chapter, numerous international legal documents
enshrined the prohibition of torture and CIDT.143 Nevertheless, despite the
clear prohibition of torture under international law, the practice persists.
In the 1970s and 1980s numerous instances of torture perpetrated against
political opponents of governments were recorded.144 Rodley and Pollard
observe that ‘[s]ince that period, there have been still all too many such vic-
tims, but the ordinary criminal suspect has also been revealed as a frequent
victim.’145
Thus it seems that the traditional paradigm for torture and CIDT is the
interrogation of a detainee. The punishment and intimidation of detainees
Oxford University Press, Oxford, 2009) 9. See Part 1 of this chapter for a discussion of the
prohibition under the international legal system.
also fall within this paradigm; the common element being the detention of
the victim in a prison-type facility. Nonetheless, despite the fact that the
traditional framework in which the prohibition of torture is discussed is the
context of interrogation, punishment or intimidation of a detainee, the reality
that torture may be perpetrated in numerous ways and in various contexts
is gradually being acknowledged by the international community. Further,
at the international level the discourse has begun to incorporate a gendered
approach.146
Moreover, whereas the focus of this book is on the international human
rights system, it is worth noting (as discussed already in Part 2) that
the jurisprudence of the regional bodies also demonstrates an increasingly
expansive approach to the definition of torture and CIDT. For exam-
ple, in the European context the European Court has acknowledged the
increasingly expansive interpretation of the prohibition;147 the prohibition
has been extended to cases involving destruction of property,148 corporal
punishment,149 a State’s failure to investigate allegations of date rape,150 the
deportation of a person where such deportation would shorten life expec-
tancy151 and, significantly, restrictions on reproductive freedom.152 Further,
both the Inter-American Commission and the Inter-American Court have
held that rape may constitute torture in certain circumstances153 and the
African Commission has also demonstrated its willingness to adopt a broad
approach.
Similarly, at the international criminal law level, both the ICTY and
the ICTR have categorised rape as torture in certain circumstances.154
Consequently, while this book focuses on the international human rights
approach to torture and CIDT and places particular emphasis on the approach
enshrined in CAT, it is worth noting that the adoption of a broad approach,
146 See Chapter 1 of this book for a discussion of the gendered nature of international law.
147 Selmouni v France (1999) V Eur Court HR 25803/94.
148 Selcuk and Asker v Turkey (1998) II Eur Court HR 23184/94; 23185/94.
149 Tyrer v United Kingdom (1978) 26 Eur Court HR (ser A). It should also be recalled that both the
Inter-American regime and the African regime have followed the lead of the European Court
in prohibiting corporal punishment: Caesar v Trinidad and Tobago [2005] Inter-Am Court HR
(ser c) No 123; Curtis Francis Doebbler v Sudan Communication 236/2000 (May 2003).
150 M C v Bulgaria (2003) XII Eur Court HR 39272/98.
151 D v United Kingdom (1997) III Eur Court HR 30240/96.
152 IG and Ors v Slovakia (2012) Eur Court HR 15966/04, NB v Slovakia (2012) Eur Court HR
29518/10, P and S v Poland (2012) Eur Court HR 57375/08, RR v Poland (2011) Eur Court
HR 27617/04, VC v Slovakia (2011) Eur Court HR 18968/07.
153 Mejía v Perú [1996] Inter-Am Comm HR (ser l) No 5/96; Miguel Castro-Castro Prison v Peru
[2006] Inter-Am Court HR (ser c) No 160.
154 See for example: Prosecutor v Akayesu Case No ICTR-96-4-T (2 September 1998) [597]
(Judgment); Prosecutor v Mucić, Delić, Landžo & Delalić Case No IT-96-21-T (16 November
1998) (Judgment); Prosecutor v Furundžija Case No IT-95-17/1-T (10 December 1998)
(Judgment). It should be noted that both men and women may be the victims of rape.
However, rape is nevertheless frequently regarded as a gender-based offence given that women
are disproportionately targeted in this way.
which extends the prohibition of torture and CIDT to encompass situa-
tions beyond the traditional detainee context, is apparent at the regional and
international criminal law levels as well as at the international human rights
level.
(a) Human Rights Committee

The HRC has adopted an increasingly expansive approach to the question of
what conduct constitutes torture or CIDT in the context of its interpretation
of article 7 of the ICCPR. For example, in its jurisprudence the HRC has
found violations of article 7 in cases as diverse as a mother’s mental anguish
resulting from her daughter’s disappearance155 and the imposition of corporal
punishment in the form of whipping with a tamarind switch.156 In Cabal and
Pasini v Australia,157 the HRC adopted a broad interpretation of the notion
of State responsibility for conduct amounting to torture or CIDT, decid-
ing that Australia was responsible for what occurred in private detention
facilities.158 Similarly, in Kaba v Canada,159 the HRC decided not only that
female genital mutilation (FGM) violates article 7 but that it is not sufficient
for a State to enact legislation prohibiting FGM from being performed by
private actors; such legislation must be implemented. Further, in the 2011
decision of LNP v Argentine Republic,160 the HRC found a violation of article
7 in circumstances where police ignored a distraught 15-year-old indigenous
rape victim and where the medical centre, once she eventually was attended
to, re-victimised her by performing unnecessary distressing examinations.
Of particular relevance to this book is the HRC’s landmark decision of
Llantoy Huamán v Peru,161 in which the HRC decided that refusing the abor-
tion request of a 17-year-old pregnant girl carrying an anencephalic foetus
155 Quinteros v Uruguay, Human Rights Committee, Communication No 107/81, UN Doc CCPR/
C/19/D/107/1981 (21 July 1983).
156 See for example: Higginson v Jamaica, Human Rights Committee, Communication No 792/98,
UN Doc CCPR/C/74/D/792/1998 (29 April 2002). In his January 2008 Report, former Special
Rapporteur Manfred Nowak reaffirmed the view that corporal punishment will fall within the
prohibition, stating that ‘any form of corporal punishment is contrary to the prohibition of tor-
ture and other cruel, inhuman or degrading treatment or punishment’: Manfred Nowak, Report
of the Special Rapporteur on Torture and other Cruel, Inhuman or Degrading Treatment or Punishment,
UN Doc A/HRC/7/3 (15 January 2008) [40].
157 Human Rights Committee, Communication No 1020/2002, UN Doc CCPR/
C/78/D/1020/2002 (7 August 2003).
158 Cabal and Pasini v Australia Human Rights Committee, Communication No 1020/2002, UN
Doc CCPR/C/78/D/1020/2002 (7 August 2003) [7.2].
C/98/D/1465/2006 (21 May 2010).
C/102/D/1610/2007 (16 August 2011).
161 Llantoy Huamán v Peru, Human Rights Committee, Communication No 1153/2003, UN Doc
CCPR/C/85/D/1153/2003 (22 November 2005).
constituted a breach of article 7.162 Likewise, in the 2011 decision of LMR v
Argentina,163 the HRC found that Argentina’s failure to provide a mentally
impaired rape victim with timely access to abortion constituted a violation
of article 7.
Further, in a number of General Comments the HRC has revealed its
expansive interpretation of the prohibition of torture and CIDT. For example,
in General Comment 20 concerning article 7 of the ICCPR, the HRC is clearly
of the view that the prohibition of torture and CIDT extends beyond the tra-
ditional detainee context. The HRC states that ‘[i]t is the duty of the State
party to afford everyone protection through legislative and other measures as
may be necessary against the acts prohibited by article 7, whether inflicted
by people acting in their official capacity, outside their official capacity or in a
private capacity.’164 It goes on to state that:
The prohibition in article 7 relates not only to acts that cause physical
pain but also to acts that cause mental suffering to the victim. In the
Committee’s view, moreover, the prohibition must extend to corporal
punishment, including excessive chastisement ordered as punishment
for a crime or as an educative or disciplinary measure. It is appropriate to
emphasize in this regard that article 7 protects, in particular, children,
pupils and patients in teaching and medical institutions.165
Thus the HRC has clearly expressed the view that torture and CIDT may be
perpetrated outside typical detention facilities; for example, such conduct may
be perpetrated in schools and in hospitals. It is particularly relevant to this
book that the HRC has also adopted an increasingly expansive approach to
torture and CIDT in the specific realm of gender-based concerns. In General
Comment 28 the HRC states that:
[T]o assess compliance with article 7 of the Covenant … the Committee

needs to be provided information on national laws and practice with
regard to domestic and other types of violence against women, including
rape. It also needs to know whether the State party gives access to safe
abortion to women who have become pregnant as a result of rape. The
States parties should also provide the Committee information on meas-
ures to prevent forced abortion or forced sterilization. In States parties
162 See also Chapters 3, 5, 6 and 10 of this book for discussion of this decision.
C/101/D/1608/2007 (28 April 2011).
164 Human Rights Committee, General Comment 20: Replaces General Comment 7 Concerning
Prohibition of Torture and Cruel Treatment or Punishment, 44th sess, UN Doc HRI/GEN/1/Rev.1
(10 March 1992) [2] (emphasis added).
165 Human Rights Committee, General Comment 20: Replaces General Comment 7 Concerning
Prohibition of Torture and Cruel Treatment or Punishment, 44th sess, UN Doc HRI/GEN/1/Rev.1
(10 March 1992) [5].
where the practice of genital mutilation exists information on its extent
and on measures to eliminate it should be provided.166
Thus the HRC has indicated that article 7 may be violated in circumstances
where responsibility can be attributed to a State for: domestic violence, rape,
certain restrictions on abortion, forced sterilisation, forced abortion and
genital mutilation.
The HRC has articulated a similar approach in numerous concluding
observations and has commented on restrictions on reproductive freedom in
the context of article 7 on a number of occasions. For example, in its 2004
concluding observations on Morocco the Committee stated that criminalisa-
tion of abortion may breach article 7 and in its 2008 concluding observations
on Nicaragua the Committee referred to article 7 while noting ‘with concern
the general ban on abortion’.167 Similarly, in its 2011 concluding observa-
tions on Kazakhstan the Committee referenced article 7 when expressing
concern at the prevalence of ‘clandestine abortions that lead to deaths.’168 In
its 2003 concluding observations on Slovakia the HRC raised the issue of
involuntary sterilisation in the context of article 7, stating that States should
investigate alleged instances of involuntary sterilisation, provide effective
remedies to victims and prevent any future incidents of involuntary sterilisa-
tion from occurring.169 This sentiment was reiterated in its 2011 concluding
observations on Slovakia; the HRC referred to article 7 when expressing con-
cern about the ‘lack of information on concrete measures to eliminate forced
sterilization.’170 Accordingly, a perusal of the case law, General Comments
and concluding observations of the HRC demonstrate that it views the issue
166 Human Rights Committee, General Comment 28: Equality of Rights between Men and Women (Art
3), UN Doc CCPR/C/21/Rev.1/Add.10 (29 March 2000) [11].
167 Human Rights Committee, Concluding Observations on Morocco, 82nd sess, UN Doc CCPR/
CO/82/MAR (1 December 2004) [29]; Human Rights Committee, Concluding Observations
on Nicaragua, 94th sess, UN Doc CCPR/C/NIC/CO/3 (12 December 2008) [13]. For other
examples of concluding observations in which the HRC has discussed restrictions on access
to abortion in the context of art 7 of the ICCPR see: Human Rights Committee, Conclusions
and Recommendations on Peru, 58th sess, UN Doc CCPR/C/79/Add.72 (18 November 1996)
[15]; Human Rights Committee, Conclusions and Recommendations on Peru, 70th sess, UN Doc
CCPR/CO/70/PER (15 November 2000) [20]; Human Rights Committee, Conclusions and
Recommendations on Ecuador 63rd sess, UN Doc CCPR/C/79/Add.92 (18 August 1998) [11];
Human Rights Committee, Conclusions and Recommendations on Trinidad and Tobago, 70th sess,
UN Doc CCPR/CO/70/TTO (3 November 2000) [18]; Human Rights Committee, Conclusions
and Recommendations on Sri Lanka, 79th sess, UN Doc CCPR/CO/79/LKA (1 December 2003)
[12].
168 Human Rights Committee, Concluding Observations on Kazakhstan, 102nd sess, UN Doc
CCPR/C/KAZ/CO/1 (19 August 2011) [11].
169 Human Rights Committee, Concluding Observations on Slovakia, 78th sess, UN Doc CCPR/
CO/78/SVK (22 August 2003) [12]. See also Human Rights Committee, Concluding Observations
on the Czech Republic, 90th sess, UN Doc CCPR/C/CZE/CO/2 (9 August 2007) [10].
170 Human Rights Committee, Concluding Observations on Slovakia, 101st sess, UN Doc CCPR/C/
SVK/CO/3 (20 April 2011) [13].
of torture and CIDT as extending beyond the traditional detainee framework
to include conduct perpetrated in other institutions, such as schools and hos-
pitals, as well as various forms of violence against women and restrictions on
women’s reproductive freedom.
(b) Committee against Torture

Like the HRC, the CAT Committee has also adopted an increasingly expan-
sive approach to the prohibition of torture and CIDT, particularly with regard
to gender-based concerns. For example, the Committee has specifically stated
that a State’s responsibility includes a duty to exercise due diligence with
respect to the behaviour of private actors and has ‘applied this principle
to States parties’ failure to prevent and protect victims from gender-based
violence, such as rape, domestic violence, female genital mutilation, and
trafficking.’171 In addition, the Committee has emphasised the need to pro-
tect vulnerable or marginalised groups. In this context, the Committee has
highlighted gender as a ‘key factor’ and has stipulated that the ‘contexts in
which females are at risk include deprivation of liberty, medical treatment,
particularly involving reproductive decisions, and violence by private actors in
communities and homes.’172
While the case law of the CAT Committee has typically addressed torture
in its traditional context, there are a number of decisions that indicate that
the CAT Committee does not regard itself as confined to this context. For
example, in the case of VL v Switzerland,173 the Committee found that sexual
abuse by the police constituted torture even though it was perpetrated out-
side the formal detention facilities.174 The only dispute that the Committee
has heard that has raised the issue of whether the actions of wholly private
171 Committee against Torture, General Comment 2: Implementation of Article 2 by States Parties, UN
Doc CAT/C/GC/2 (24 January 2008) [18]. For examples of the Committee against Torture’s
approach to domestic violence see: Committee against Torture, Conclusions and Recommendations
on Greece, 33rd sess, UN Doc CAT/C/CR/33/2 (10 December 2004) [5]; Committee against
Torture, Conclusions and Recommendations on Ecuador, 35th sess, UN Doc CAT/C/ECU/CO/3
(8 February 2006) [17]; Committee against Torture, Conclusions and Recommendations on
Argentina, 33rd sess, UN Doc CAT/C/CR/33/1 (10 November 2004) [6]. For an example of the
Committee against Torture’s approach to FGM see: Committee against Torture, Conclusions and
Recommendations on Cameroon, 31st sess, UN Doc CAT/C/CR/31/6 (5 February 2004) [7].
Doc CAT/C/GC/2 (24 January 2008) [22] (emphasis added).
173 VL v Switzerland, Committee against Torture, Communication No 262/2005, UN Doc CAT/
C/37/D/262/2005 (22 January 2007).
174 It should be noted that in the case of Kisoki v Sweden, Committee against Torture, Communication
No 41/1996, UN Doc CAT/C/16/D/41/1996 (12 February 1996) the CAT Committee, while
implicitly finding that the multiple rapes endured by a detainee constituted torture, failed to
take the opportunity to explicitly state that rape may constitute torture. In this case, the CAT
Committee decided that, in light of the fact that the complainant had been politically active
and had been subjected to various forms of torture and ill-treatment both inside and outside
prison, returning her to Zaire would constitute a violation of art 3 of CAT.
actors can be attributed to the State is the case of Dzemajl et al v Serbia and
Montenegro.175 In this case, which involved police officers standing by and
watching as a crowd destroyed a Roma settlement, the CAT Committee
found that the malicious and wide-scale destruction of property occurred
with the acquiescence of public officials. Accordingly, whereas the nature of
the disputes brought before the CAT Committee have tended to fall within
the traditional paradigm, on the few occasions when the Committee has been
asked to determine a dispute that falls outside the traditional paradigm it has
shown a willingness to consider the issue of torture and CIDT beyond the
traditional detainee context.
Further, it is interesting to note that in the case of AS v Sweden,176 in which
the CAT Committee decided that sending a woman back to Iran where she
had been sentenced to death by stoning for adultery would violate article
3 of CAT, the CAT Committee specifically referenced the status of women
in Iranian society.177 Quoting a report of the Special Representative of the
Commission on Human Rights on the situation of human rights in Iran, it
stated that ‘although significant progress is being made in Iran with regard
to the status of women in sectors like education and training, “little progress
is being made with regard to remaining systematic barriers to equality”
and for “the removal of patriarchal attitudes in society”.’178 Similarly, in
the case of Bakatu-Bia v Sweden,179 also a decision revolving around article
3 of CAT, the CAT Committee noted that ‘sexual violence in DRC remains
a matter of serious concern, particularly in conflict-torn areas, and despite
efforts by authorities to combat it, this phenomenon is still widespread and
particularly affects thousands of women and children.’180 Thus it seems that
the Committee is beginning to incorporate a gendered approach into its
case law. Unfortunately, the CAT Committee has not decided a dispute
addressing the specific question of whether legal restrictions on abortion
or involuntary sterilisation procedures violate the prohibition of torture or
CIDT. However, in its General Comments, as well as its concluding observa-
tions, the Committee has referenced various gender-based concerns including
restrictions on reproductive freedom.
In General Comment 2, the CAT Committee clearly reveals that it
175 Committee against Torture, Communication No 161/2000, UN Doc CAT/C/29/D/161/2000

(21 November 2002).
176 AS v Sweden, Committee against Torture, Communication No 149/1999, UN Doc CAT/
C/25/D/149/1999 (15 February 2001).
177 Article 3(1) of CAT states that: ‘No State Party shall expel, return (“refouler”) or extradite a
person to another State where there are substantial grounds for believing that he would be in
danger of being subjected to torture.’
178 AS v Sweden, Committee against Torture, Communication No 149/1999, UN Doc CAT/
C/25/D/149/1999 (15 February 2001) [8.7].
(8 July 2011).
180 Bakatu-Bia v Sweden, Committee against Torture, Communication No 379/2009, UN Doc
CAT/C/46/D/379/2009 (8 July 2011) [10.6].
views the prohibition of torture and CIDT as encompassing situations
beyond the traditional detainee context. For example, it specifically states
that:
[E]ach State party should prohibit, prevent and redress torture and ill-
treatment in all contexts of custody or control, for example, in pris-
ons, hospitals, schools, institutions that engage in the care of children,
the aged, the mentally ill or disabled, in military service, and other
institutions as well as contexts where the failure of the State to intervene
encourages and enhances the danger of privately inflicted harm.181
Thus the CAT Committee is clearly of the view that torture and ill-treatment
may be perpetrated in various contexts of custody or control beyond the
traditional context of prison or prison-like facilities. The inclusion of other
facilities, such as hospitals, schools and aged-care facilities, in its discussion
of the contexts in which torture or CIDT may be perpetrated demonstrate an
approach that extends beyond the traditional paradigm. Moreover, when artic-
ulating the scope of State obligations and responsibility, the CAT Committee
extends State responsibility for acts causing severe pain or suffering to include
acts committed by private actors, stating that:
[W]here State authorities or others acting in official capacity or under

colour of law, know or have reasonable grounds to believe that acts of
torture or ill-treatment are being committed by non-State officials or
private actors consistently with the Convention, the State bears respon-
sibility and its officials should be considered as authors, complicit
or otherwise responsible under the Convention for consenting to or
acquiescing in such impermissible acts … The Committee has applied this
principle to States parties’ failure to prevent and protect victims from gender-based
violence, such as rape, domestic violence, female genital mutilation, and
trafficking.182
The extension of State responsibility into the private realm is another exam-
ple of the CAT Committee adopting a broad approach to the issue of tor-
ture and CIDT, as is its reference to gender-based violence.183 In this same
General Comment, the Committee also directly acknowledges the dangers
that women face in the reproductive sphere when it states that ‘[t]he contexts
in which females are at risk include deprivation of liberty, medical treat-
ment, particularly involving reproductive decisions, and violence by private actors in
Doc CAT/C/GC/2 (24 January 2008) [15].
183 See Chapter 6 of this book for a discussion of the ‘public official’ requirement in art 1 of CAT.
communities and homes.’184 Accordingly, this General Comment indicates a
willingness on the part of the CAT Committee to view the issue of torture and
CIDT as extending beyond the traditional detainee context.
Such an approach is also apparent in the Committee’s concluding obser-
vations. For example, in a number of concluding observations the CAT
Committee has specifically addressed the issue of State facilitation of FGM.
In its 2004 conclusions and recommendations with respect to Cameroon, the
Committee recommended that Cameroon enact a law banning FGM.185 In
its 2008 concluding observations with respect to Indonesia, the Committee
recommended the adoption of measures to eradicate FGM and in its 2009
concluding observations with respect to Chad, the Committee expressed
concern regarding the practice of FGM and emphasised the need for the
implementation of legislation prohibiting FGM.186 It is interesting that the
Committee has not restricted itself to raising this issue in connection with
States in which FGM is widely accepted and practised, in its 2008 concluding
observations with respect to Australia, for example, the Committee recom-
mended that Australia introduce the prohibition of FGM into the Federal
Criminal Code.187
The CAT Committee has invoked this same logic in relation to other
forms of violence against women. For example, in its 2007 conclusions and
recommendations with respect to Japan, the Committee expressed concern
regarding the restrictive scope of legislation covering rape.188 In its 2008
concluding observations with respect to Indonesia, the Committee recom-
mended that Indonesia implement measures to prevent and combat domestic
violence.189 Similarly, in its 2004 conclusions and recommendations with
respect to Greece, the Committee recommended the adoption of legisla-
tion to combat domestic violence and in its 2008 concluding observations
with respect to China, the Committee expressed concern regarding the lack
of legislation prohibiting all forms of violence against women.190 Further,
in its 2011 concluding observations on Ireland, the Committee expressed
185 Committee against Torture, Conclusions and Recommendations on Cameroon, 31st sess, UN Doc
CAT/C/CR/31/6 (5 February 2004) [7].
186 Committee against Torture, Concluding Observations on Indonesia, 40th sess, UN Doc CAT/C/
IDN/CO/2 (2 July 2008) [16]; Committee against Torture, Concluding Observations on Chad,
42nd sess, UN Doc CAT/C/TCD/CO/1 (4 June 2009) [30].
187 Committee against Torture, Concluding Observations on Australia, 40th sess, UN Doc CAT/C/
AUS/CO/3 (22 May 2008) [33].
188 Committee against Torture, Conclusions and Recommendations on Japan, 38th sess, UN Doc
CAT/C/JPN/CO/1 (3 August 2007) [25].
IDN/CO/2 (2 July 2008) [16].
190 Committee against Torture, Conclusions and Recommendations on Greece, 33rd sess, UN Doc
CAT/C/CR/33/2 (10 December 2004) [6(l)]; Committee against Torture, Concluding Observations
on China, 41st sess, UN Doc CAT/C/CHN/CO/4 (12 December 2008) [27].
grave concern at the high rates of domestic violence.191 Thus, in numerous
concluding observations, the Committee has conceptualised violence against
women, which occurs in the private realm, as nevertheless attracting State
responsibility and violating the prohibition of torture and CIDT.
The Committee has also commented specifically on the issue of restricting
reproductive freedom on a number of occasions. In its 2006 conclusions and
recommendations on Peru, the CAT Committee explicitly expressed concern
regarding restrictions on abortion in the context of its discussion of CIDT. It
stated that:
Current legislation severely restricts access to voluntary abortion, even in

cases of rape, leading to grave consequences, including the unnecessary
deaths of women. According to reports received, the State party has failed
to take steps to prevent acts that put women’s physical and mental health
at grave risk and that constitute cruel and inhuman treatment.192
Thus in this concluding observation, the Committee quite clearly expresses

the view that, in circumstances in which a woman’s physical and mental
health is put at grave risk, restrictions on abortion constitute inhuman treat-
ment. In addition, in its 2009 concluding observations on Nicaragua, the
Committee expressed deep concern regarding the general prohibition of abor-
tion, even in cases of rape, incest or life-threatening pregnancies, and the pen-
alties to which women and medical personnel who terminate pregnancies are
exposed.193 Further, in 2011 the Committee published concluding observa-
tions expressing concern at the lack of clarity regarding domestic procedures
for determining whether a woman is legally entitled to terminate a pregnancy
in Ireland and noting with concern the general prohibition on abortion and
the nefarious consequences of such a prohibition in Paraguay.194
In addition to restrictions on abortion, the CAT Committee has also raised
involuntary sterilisation as an issue of concern. For example, in its 2006
conclusions and recommendations with respect to Peru, the Committee
expressed its concern at reports of women undergoing involuntary sterilisa-
tion.195 Further, in its 2004 conclusions and recommendations with respect
to the Czech Republic, the Committee specifically expressed concern about
191 Committee against Torture, Concluding Observations on Ireland, 46th sess, UN Doc CAT/C/IRL/
CO/1 (17 June 2011) [27].
192 Committee against Torture, Conclusions and Recommendations on Peru, 36th sess, UN Doc CAT/C/
PER/CO/4 (25 July 2006) [23].
193 Committee against Torture, Concluding Observations on Nicaragua, 42nd sess, UN Doc CAT/C/
NIC/CO/1 (10 June 2009) [16].
194 Committee against Torture, Concluding Observations on Ireland, 46th sess, UN Doc CAT/C/IRL/
CO/1 (17 June 2011) [26]; Committee against Torture, Concluding Observations on Paraguay,
47th sess, UN Doc CAT/C/PRY/CO/4-6 (14 December 2011) [22].
PER/CO/4 (25 July 2006) [23].
‘[a]llegations regarding some incidents of uninformed and involuntary steri-
lizations of Roma women, as well as the Government’s inability to inves-
tigate due to insufficient identification of the individual complainants.’196
This concern was reiterated in its 2012 concluding observations on the Czech
Republic, in which the Committee once again noted ‘reports of steriliza-
tion of Roma woman without free and informed consent, the destruction of
medical records on involuntary sterilizations and the difficulties of victims to
obtain redress.’197 These statements suggest a willingness to attribute State
responsibility to pain and suffering caused by private actors where the State
has failed to act to prevent, investigate properly or provide redress for such
pain and suffering. Therefore, it would seem that the attitude expressed by
the CAT Committee in its concluding observations suggests that where the
State fails to act to prevent, investigate or punish violence against women in
the form of involuntary sterilisation procedures, the pain and suffering result-
ing from such procedures may be imputed to the State. Accordingly, this
discussion demonstrates that whereas the case law of the CAT Committee is
for the most part confined to a consideration of conduct carried out within
the traditional torture paradigm, the Committee’s General Comments and
concluding observations indicate a willingness to adopt a more expansive,
gender-sensitive approach.
(c) Special Rapporteur on Torture and other Cruel, Inhuman or

Degrading Treatment or Punishment
The trend towards an increasingly expansive approach to the definition of
torture and CIDT is also evident in the work of the Special Rapporteur.
For example, in his August 2000 Note on the Question of Torture and
other Cruel, Inhuman or Degrading Treatment or Punishment, the Secretary-
General specifically notes that the ‘Special Rapporteur has continued to receive
information according to which women are subjected to gender-specific forms
of torture, including rape, sexual abuse and harassment, virginity testing,
forced abortion or forced miscarriage.’198 In his January 2008 Report, former
Special Rapporteur Manfred Nowak dedicates an entire section to a discus-
sion of ‘a gender-sensitive interpretation of torture.’199 As part of this section,
he specifically states that ‘the language used in article 1 of the Convention
concerning consent and acquiescence by a public official clearly extends State
196 Committee against Torture, Conclusions and Recommendations on the Czech Republic, 32nd sess, UN
Doc CAT/C/CR/32/2 (3 June 2004) [86(k)].
197 Committee against Torture, Concluding Observations on the Czech Republic, 48th sess, UN Doc
CAT/C/CZE/CO/4-5 (13 July 2012) [12].
198 United Nations Secretary-General, Question of Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment: Note by the Secretary-General, UN GAOR, 55th sess, Agenda Item
116(a), UN Doc A/55/290 (11 August 2000) [5] (emphasis added).
199 Manfred Nowak, Report of the Special Rapporteur on Torture and other Cruel, Inhuman or Degrading
Treatment or Punishment, UN Doc A/HRC/7/3 (15 January 2008) 6.
obligations into the private sphere and should be interpreted to include
State failure to protect persons within its jurisdiction from torture and ill-
treatment committed by private individuals.’200 He then proceeds to consider
the ways in which certain forms of behaviour (which either exclusively or
disproportionately affect women) may constitute torture or CIDT. As part of
this discussion, Nowak focuses on rape and sexual violence, violence against
pregnant women and the denial of reproductive rights, as well as violence in
the private sphere such as intimate partner violence and FGM. Thus Nowak
clearly views the prohibition of torture and CIDT as extending beyond the
traditional detainee context to include certain forms of conduct that dispro-
portionately affect women.201
4 Conclusion
This chapter has provided an overview of the international legal prohibition
of torture and CIDT. The first part of this chapter provided an overview of the
approach of the international system to the prohibition and the second part
of this chapter provided an overview of the approach of the regional systems.
The third part of this chapter presented the notion that whereas torture and
CIDT have traditionally been viewed through the rubric of the traditional
paradigm of interrogation, intimidation or punishment of a detainee, the
international legal system has demonstrated its willingness to extend the pro-
hibition of torture and CIDT to encompass situations beyond the traditional
detainee context. Thus, as discussed in the previous chapter, the male-centric
approach to the prohibition of torture and CIDT is being challenged.
This book challenges the traditionally male-centric approach to the prohi-
bition of torture and CIDT and advocates for a conceptualisation of restric-
tions on reproductive freedom within this framework. Consequently, Part 3 of
this chapter set the scene for this exposition by illustrating that international
law is not static and that the move towards a more gender-inclusive approach
to the prohibition of torture and CIDT has already begun. Chapters 3 to 8
of this book consider each element of the definition of torture contained in
article 1 of CAT and ultimately conclude that restrictions on reproductive
freedom generally satisfy each element of the definition of torture. Chapters 9
and 10 then proceed to consider CIDT in this context and to examine whether
restrictions on reproductive freedom should constitute torture or CIDT.
Treatment or Punishment, UN Doc A/HRC/7/3 (15 January 2008) [31].
Treatment or Punishment, UN Doc A/HRC/7/3 (15 January 2008).
3 Severe pain or suffering
such purposes as obtaining from him or a third person information
or a confession, punishing him for an act he or a third person has
committed or is suspected of having committed, or intimidating or
coercing him or a third person, or for any reason based on discrimina-
tion of any kind, when such pain or suffering is inflicted by or at the
instigation of or with the consent or acquiescence of a public official
or other person acting in an official capacity. It does not include pain
or suffering arising only from, inherent in or incidental to lawful
sanctions.1
1 Introduction
The definition of torture set out in article 1 of the Convention against Torture
and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT)
requires that the victim be subjected to an ‘act’ that causes ‘severe pain or suf-
fering, whether physical or mental’. This chapter begins with a brief discus-
sion of the meaning of an ‘act’ and argues that both involuntary sterilisation
and restrictive regulation of abortion can be categorised as an ‘act’ that may
or may not constitute an act of torture, depending on whether the other ele-
ments of the definition can be established. It then turns to the focus of this
chapter, that being the meaning of ‘severe pain or suffering, whether physical
or mental’ and the application of this element to restrictions on reproductive
freedom.
Both forced pregnancy and forced sterilisation have been categorised
in the international realm as violence against women. For example, the
Special Rapporteur on violence against women, its causes and consequences
(Special Rapporteur on violence against women) has categorised both ‘forced
Severe pain or suffering 63
sterilisation’ and ‘coerced pregnancy’ as a form of violence against women.2
This chapter takes the argument one step further, positing that such restric-
tions on reproductive freedom may cause severe pain and suffering as required
by the CAT definition of torture. As already mentioned, Part 1 of this chapter
briefly discusses the meaning of an ‘act’ in the context of the definition of tor-
ture. Part 2 of this chapter introduces the concept of the relative intensity of
pain or suffering; in other words, it introduces the concept of severity. Part 3
of this chapter considers ‘severe pain or suffering’ in the context of restrictions
on abortion and Part 4 considers ‘severe pain or suffering’ in the context of
involuntary sterilisation. Parts 3 and 4 each consider mental pain and suffer-
ing separately from physical pain and suffering. It must be acknowledged that
this distinction is somewhat artificial. Peter Kooijmans eloquently articulates
this artificiality when he states that ‘[t]orture is the violation par excellence
of the physical and mental integrity – in their indissolubable interdependence – of
the individual human being.’3 Nonetheless, in the interests of accurately and
systematically adhering to the structure of the definition of torture set out in
article 1 of CAT, and in the interests of clarity and comprehensiveness, the
author has structured the chapter in this way while acknowledging the over-
simplification inherent in such a structure. However, in spite of the chapter’s
structural adherence to the elements of the CAT definition of torture, in the
section addressing the physical pain or suffering resulting from involuntary
sterilisation, the chapter briefly discusses the fundamental problems inherent
in such a technical definitional approach to a concept as grave and fundamen-
tal as torture.
2 The meaning of an ‘act’

The definition of torture set out in article 1 of CAT requires an ‘act’ (which
causes severe pain or suffering). It is clear that sterilising a woman without
her full and informed consent constitutes an act, that being the actual steri-
lisation procedure. Less clear is whether restricting access to abortion services
constitutes an act. The view is taken that such restrictions do constitute an
act given that law-makers must take positive steps to criminalise abortion and
the taking of these steps involves an affirmative act. Alternatively, one may
take the view that the failure to provide access to abortion services constitutes
an omission rather than an act. If one takes this view, the question becomes:
can an omission constitute an act of torture? The distinction, if any, between
acts and omissions has been the subject of much philosophical discussion and
debate. Jonathan Glover explains that:
Consequences, UN Doc E/CN.4/1999/68/Add.4 (21 January 1999) [45].
3 Peter Kooijmans, Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, UN Doc E/CN.4/1986/15 (19 February 1986) [4] (emphasis added).
See also: Rhonda Copelon, ‘Recognizing the Egregious in the Everyday: Domestic Violence as
Torture’ (1994) 25 Columbia Human Rights Law Review 291, 310.
[T]he ‘acts and omissions doctrine’ says that, in certain contexts, failure
to perform an act, with certain foreseen bad consequences of that failure,
is morally less bad than to perform a different act which has the identical
foreseen bad consequences. It is worse to kill someone than to allow them
to die.4
In his view, the distinction between acts and omissions should be rejected.5
In general, international law interprets references to ‘act’ to include ‘omis-
sion’. For example, article 1 of the International Law Commission’s Draft
Articles on Responsibility of States for Internationally Wrongful Acts states
that ‘[e]very internationally wrongful act of a State entails the interna-
tional responsibility of that State.’6 In its commentary on this article, the
International Law Commission explains that an ‘internationally wrongful act
of a State may consist in one or more actions or omissions or a combination of
both.’7 Article 2 confirms this interpretation, stating that:
There is an internationally wrongful act of a State when conduct consist-
ing of an action or omission:
(a) Is attributable to the State under international law; and
(b) Constitutes a breach of an international obligation of the State.8
Leading commentators generally agree that the requirement for an ‘act’ in
article 1 of CAT implicitly includes omissions.9 J Herman Burgers and Hans
Danelius concede that while the definition of torture refers to acts, ‘in special
cases an omission should be assimilated to an act.’10 Ahcene Boulesbaa has
gone so far as to suggest that it would be ‘absurd to conclude that the pro-
hibition of torture in the context of Article 1 does not extend to conduct by
way of omission.’11 In The Greek case, the European Commission of Human
4 Jonathan Glover, Causing Death and Saving Lives (Penguin Books Ltd, London, 1977) 93.
6 International Law Commission, Yearbook of the International Law Commission, UN Doc A/CN.4/
SER.A/2001/Add.1 (Part 2) (2001) [76].
SER.A/2001/Add.1 (Part 2) (2001) [77] (emphasis added).
SER.A/2001/Add.1 (Part 2) (2001) [76] (emphasis added).
Commentary (Oxford University Press, Oxford/New York, 2008) 66; Nigel Rodley and Matt
Pollard, ‘Criminalisation of Torture: State Obligations under the United Nations Convention
against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment’ (2006) 2
European Human Rights Law Review 115, 120.
11 Cited in Manfred Nowak and Elizabeth McArthur, The United Nations Convention against
Torture: A Commentary (Oxford University Press, Oxford//New York, 2008) 66. See also: Ahcene
Boulesbaa, ‘Analysis and Proposals for the Rectification of the Ambiguities Inherent in Article 1
of the U.N. Convention on Torture’ (1990) 5 Florida International Law Journal 293.
Rights held that torture may include both acts and omissions – it decided
that ‘the failure of the Government of Greece to provide food, water, heat-
ing in winter, proper washing facilities, clothing, medical and dental care
to prisoners constitutes an “act” of torture in violation of article 3 of the
ECHR.’12 Further, the view that both acts and omissions may constitute
torture appears to have been accepted by the international criminal tribunals.
For example, in the case of Prosecutor v Furundžija,13 the trial chamber of the
International Criminal Tribunal for the former Yugoslavia specifically stated
that the elements of torture in an armed conflict ‘consists of the infliction, by
act or omission, of severe pain or suffering, whether physical or mental.’14 This
demonstrates that, in the context of the definition of torture, international
law generally accepts the mode of interpretation that includes omissions
within the meaning of ‘act’. Therefore, it seems that even if restricting access
to abortion services is viewed as an omission, such an omission nevertheless
falls within the meaning of ‘act’ in article 1 of CAT. Accordingly, the remain-
der of this chapter discusses the requirement that the conduct in question, in
this case restrictions on reproductive freedom, cause ‘severe pain or suffering,
whether physical or mental.’
3 The meaning of ‘severe’

The definition of torture in article 1 of CAT requires an ‘act by which severe
pain or suffering, whether physical or mental, is intentionally inflicted.’15
Thus the question arises: what level of intensity is required for pain or suf-
fering to constitute ‘severe’ pain or suffering? The notion of severity of pain
or suffering is both inherently subjective and inherently vague. Indeed, it
seems that it is impossible to clearly define precisely what level of suffering
constitutes ‘severe’ suffering. For example, the specification of only the most
extreme examples of infliction of pain or suffering as constituting torture has
the effect of excluding other forms of severe pain or suffering. Thus former
United States Assistant Attorney-General Jay Bybee has been heavily criti-
cised for attempting to confine torture to the sort of extreme pain that would
be associated with death or organ failure.16 Even the compilation of a list
12 The Greek Case (1969) YB Eur Conv on HR 461.

13 Case No IT-95-17/1-T (10 December 1998) (Judgment).
14 Case No IT-95-17/1-T (10 December 1998) (Judgment) [162] (emphasis added).
16 Memorandum from Jay S Bybee to Alberto R Gonzales, 1 August 2002 (accessible at http://
fl1.findlaw.com/news.findlaw.com/nytimes/docs/doj/bybee80102mem.pdf). One of the primary
critics of Bybee’s narrow definition of ‘severe pain or suffering’ has been Harold Koh, former
Legal Adviser to the United States Department of State and Professor of Yale Law School.
Appearing at the Senate hearings addressing this issue, he said:
A legal opinion that is so lacking in historical context, that offers a definition of torture so
narrow that it would have exculpated Saddam Hussein, that reads the Commander-in-Chief
that endeavours to include all forms of conduct that may cause severe pain or
suffering runs the risk of unintentionally excluding conduct that would oth-
erwise meet the definition. Thus the formulation of a definition of ‘severe’ in
this context is not viable. Consequently, the Committee against Torture (CAT
Committee) has not even attempted to devise such a definition. However, it
is nevertheless useful to consider the case law of the CAT Committee to
gain some sense of the types of conduct that the CAT Committee has found
amounts to the infliction of ‘severe pain or suffering.’
In the decisions of Dragan Dimitrijevic v Serbia and Montenegro,17 Ben Salem
v Tunisia18 and Ali v Tunisia,19 the CAT Committee found that the beatings
suffered by the complainants at the hands of police or State security personnel
were sufficiently severe to constitute torture. In Dragan Dimitrijevic v Serbia
and Montenegro,20 the complainant endured beatings of such intensity that they
caused his ears to bleed; other consequences of the beatings included an open
wound, swelling and the complainant was bedridden for several days following
the events in question. In Ben Salem v Tunisia,21 the complainant was beaten,
kicked and dragged face down along a courtyard and up a flight of stairs. He
was also sprayed with tear gas, rendered unconscious by having his head banged
against a wall and had his clothes torn. As a result, he suffered severe injuries
to his head and spine (among other consequences). In Ali v Tunisia,22 the com-
plainant was punched, kicked and stripped of some of her clothes. She suffered
threats against her family and ‘lost consciousness under a hail of blows.’23 As a
consequence of this treatment, she suffered bruises, lesions, constant headaches
and swelling. In addition, she became constantly anxious, suffered from seri-
ous sleep problems and endured significant loss of her short-term memory.
Further, in the more recent case of Bakatu-Bia v Sweden,24 the CAT Committee
power so as to remove Congress as a check against torture, that turns Nuremberg on its head
and that gives government officials a licence for cruelty, can only be described as a disaster.
See Marian Wilkinson, ‘Are We All Torturers Now?’ Insight, The Age (Melbourne), 15 January
2005, 1.
(29 November 2004).
(22 November 2007).
(26 November 2008).
(29 November 2004).
(22 November 2007).
(26 November 2008).
23 Saadia Ali v Tunisia, Committee against Torture, Communication No 291/2006, UN Doc
CAT/C/41/D/291/2006 (26 November 2008) [2.4].
24 Committee against Torture, Communication No 379/2009, UN Doc CAT/C/46/D/379/2009 (8
July 2011).
referenced reports of rape and sexual violence in the Democratic Republic of
the Congo as the basis for its decision that the complainant was ‘at risk of being
subjected to torture if returned’ to that country.25 In contrast, Keremedchiev v
Bulgaria,26 is an example of a case in which the CAT Committee found that the
beatings in question were not sufficiently severe to constitute torture. In this
case, the complainant claimed that after being arrested he was kicked, pushed,
beaten to the point of losing consciousness and threatened with being shot.
As a consequence, he suffered bruising to his kidneys and blood in his urine.
The Committee decided that ‘the injuries inflicted do not appear to amount to
“severe pain and suffering”’ and consequently found a violation of article 16,
which prohibits cruel, inhuman or degrading treatment, rather than article
1.27
Accordingly, while these cases provide some guidance as to the level of
intensity required for pain or suffering to constitute ‘severe’ pain or suffering,
there is clearly no bright line dividing pain that is sufficiently intense to be
categorised as ‘severe’ and pain that falls below this threshold. In fact, the line
is decidedly blurred. With this in mind, this chapter now turns to consider
the physical and mental pain and suffering that may be endured by women
who are prevented from legally terminating their pregnancies and women
who are subjected to involuntary sterilisation procedures.
4 Restrictions on abortion
This section argues that laws restricting access to abortion services frequently
cause severe pain or suffering, both physical and mental. Legal restrictions on
access to abortion services clearly have a negative impact on women’s mental
health. Legally coercing a woman to carry an unwanted pregnancy to term
is not only an abuse of her basic human rights but may also be extremely
damaging from a mental health perspective. Further, the prevailing stigma
associated with abortion (which is to a large extent facilitated by the legal
framework that frequently casts accessing abortion as deviant behaviour)
causes harm to women’s mental health. From a physical perspective, there
is a clear link between legal restrictions on abortion and the safety of abor-
tion procedures. This chapter discusses the medical reality, revealing the
negative physical health effects and severe pain and suffering resulting from
unsafe abortions, both in terms of mortality and morbidity. In addition, it
discusses the pain and suffering of child birth (which is a logical consequence
of preventing a woman from terminating an unwanted pregnancy).
This chapter argues that restrictions on abortion may cause severe pain and
25 Bakatu-Bia v Sweden, Committee against Torture, Communication No 379/2009, UN Doc
CAT/C/46/D/379/2009 (8 July 2011) [10.8].
(21 November 2008).
27 The distinction between torture and other cruel, inhuman or degrading treatment is discussed
in Chapter 9 of this book.
suffering at both the physical and mental level. However, it is important to
acknowledge that there are women who are prevented from legally terminat-
ing their pregnancies who do not suffer severe pain and suffering as a result.
Nonetheless, as the discussion in this chapter demonstrates, there are many
women who are forced to continue with an unwanted pregnancy and who
suffer severe pain and suffering as a consequence and there are many women
who suffer severe pain and suffering as a consequence of an illegal abortion
procedure. Therefore, this chapter does not seek to contend that legal restric-
tions on abortion cause severe pain and suffering in all circumstances. Rather,
this chapter argues that in many circumstances legal restrictions on abortion
cause severe pain and suffering.
(a) Mental pain or suffering
(i) Restrictions on abortion cause mental pain and suffering

Women’s experiences of abortion differ markedly – for some the process may
be positive, for some it may be emotionally benign, for others it may be emo-
tionally difficult.28 What is clear is that restricting a woman’s capacity to exer-
cise a difficult choice is fraught with the potential for negative mental health
consequences. Any negative emotional responses to an unwanted pregnancy
are significantly exacerbated in a climate in which access to abortion services
is restricted. The focus of this section is on the mental health consequences
of compelling a woman to continue with an unwanted pregnancy, as opposed
to the negative mental health effects of experiencing an illegal abortion. This
is largely because ‘[r]esearch into women’s physical health after unsafe abor-
tion has overshadowed research into their mental health.’29 Indeed for many
women, the immediate need to deal with the physical trauma of an unsafe
abortion procedure overshadows the significance of the mental and emotional
trauma.30 According to the World Health Organization, the ‘mental health
consequences of unsafe abortion are not known, although qualitative data
suggest that unsafe abortion can be traumatic before, during and after the
abortion, and is likely to cause psychological harm.’31 Therefore, although
it is not possible to engage in a comprehensive discussion of the mental pain
and suffering resulting from unsafe abortions one may presume that unsafe
abortions frequently cause mental pain and suffering.
The mental pain and suffering that may result from forcing a woman to
carry an unwanted pregnancy to term has been acknowledged by the Human
Rights Committee (HRC) in two separate decisions in which the facts were
28 For an interesting discussion of women’s varied reactions to abortion, see: Carol Gilligan, In a
Different Voice (Harvard University Press, Cambridge, 1982).
29 World Health Organization, Mental Health Aspects of Women’s Reproductive Health (2009) 54.
found to give rise to a violation of article 7. The landmark 2005 decision of
Llantoy Huamán v Peru32 involved a 17-year-old Peruvian girl who became
pregnant with what the scan showed to be an anencephalic foetus. Despite
her expressed desire to terminate the pregnancy, the hospital refused on the
basis that termination in such circumstances would be illegal. During her
pregnancy, a psychiatrist drew up a psychiatric report concluding that:
[T]he so-called principle of the welfare of the unborn child has caused
serious harm to the mother, since she has unnecessarily been made to
carry to term a pregnancy whose fatal outcome was known in advance,
and this has substantially contributed to triggering the symptoms of
depression, with its severe impact on the development of an adolescent
and the patient’s future mental health.33
As predicted, she gave birth to an anencephalic baby who survived for four
days. Following the baby’s death she fell into a state of deep depression. The
HRC accepted that she suffered severe psychological harm as a result of being
compelled to continue with her pregnancy.
In the second decision of LMR v Argentina,34 the HRC decided that
Argentina’s failure to guarantee the right of a mentally impaired woman to
terminate a pregnancy resulting from a rape caused the woman ‘physical and
mental suffering constituting a violation of article 7.’35 In this case, evidence
had been submitted by the complainant indicating that she had suffered psy-
chological injury that could have been minimised had she been able to access
timely legal abortion services (as opposed to the illegal abortion to which she
eventually resorted).36
In addition to the HRC, the European Court of Human Rights (European
Court) has also acknowledged the mental pain and suffering that may result
from a denial of access to legal abortion. For example, the case of RR v
Poland 37 involved a failure to perform timely prenatal tests and a refusal to
terminate a pregnancy despite a clear indication of foetal abnormality and
despite numerous requests from the woman concerned. In finding a violation
of article 3, the court noted that ‘she suffered acute anguish through having
to think about how she and her family would be able to ensure the child’s
welfare, happiness and appropriate long-term medical care.’38
32 Human Rights Committee, Communication No 1153/2003, UN Doc CCPR/C/85/D/1153/2003
(22 November 2005).
CCPR/C/85/D/1153/2003 (22 November 2005) [2.5].
C/101/D/1608/2007 (28 April 2011).
35 LMR v Argentina, Human Rights Committee, Communication No 1608/2007, UN Doc CCPR/
C/101/D/1608/2007 (28 April 2011) [9.2].
36 LMR v Argentina, Human Rights Committee, Communication No 1608/2007, UN Doc CCPR/
C/101/D/1608/2007 (28 April 2011) [3.1].
37 (2011) Eur Court HR 27617/04.
38 RR v Poland (2011) Eur Court HR 27617/04 [159].
The mental harm suffered by a woman who is prevented from terminating
an unwanted pregnancy was recognised in more general terms in the seminal
United States Supreme Court decision of Roe v Wade.39 In this case, the mental
health effects of forcing a woman to continue with an unwanted pregnancy
formed part of the reasoning that led to the court’s decision that a woman has
a constitutional right to abortion (subject to certain limitations). The court
recognised that:
Specific and direct harm medically diagnosable even in early pregnancy

may be involved. Maternity, or additional offspring, may force upon the
woman a distressful life and future. Psychological harm may be immi-
nent. Mental and physical health may be taxed by child care. There is
also the distress, for all concerned, associated with the unwanted child,
and there is the problem of bringing a child into a family already unable,
psychologically and otherwise, to care for it … the additional difficulties
and continuing stigma of unwed motherhood may be involved.40
As the Supreme Court in Roe v Wade41 recognised, a woman who is denied an

abortion and consequently is forced to carry an unwanted pregnancy to term
may endure the mental health consequences even after the birth of the child.
In fact, one of the plaintiffs in Roe v Wade42 claimed that the neural-chemical
disorder from which she was suffering provided a mental health indication for
abortion.43 She argued that her ‘psychiatric condition manifested symptoms
such as “erratic mood swings, including significant periods of depression,”
which meant that pregnancy would pose a serious mental health risk.’44
A study of over 500 mothers found that those with unwanted children were
‘substantially more depressed’ than other mothers.45 Further, while those who
advocate restricting access to abortion services frequently present adoption as
a way to avoid the damaging consequences of forcing a woman to raise a child
resulting from an unwanted pregnancy, adoption is not quite the panacea that
it is frequently presented to be. Many women who place a child for adoption
suffer enduring mental health consequences as a result. For example, studies
indicate that a birth mother may experience a long-term sense of loss, depres-
sion and difficulties in adjustment after placing a child for adoption.46 The
39 410 US 113, 153 (1973).

40 410 US 113, 153 (1973).
41 410 US 113, 153 (1973).
42 410 US 113 (1973).
43 See: Jeannie Suk, ‘The Trajectory of Trauma’ (2010) 110 Columbia Law Review 1193, 1215–1216.
44 Jeannie Suk, ‘The Trajectory of Trauma’ (2010) 110 Columbia Law Review 1193, 1215–1216.
45 Jennifer S Barber, William G Axinn and Arland Thornton, ‘Unwanted Childbearing and
Mother–Child Relationships’ (1999) 40(3) Journal of Health and Social Behavior 231.
46 Michael P Sobol and Kerry J Daly, ‘The Adoption Alternative for Pregnant Adolescents:
Decision Making, Consequences, and Policy Implications’ (1992) 48(3) Journal of Social Issues
143.
following testimony of a woman who elected to terminate her pregnancy
aptly illustrates this point:
I am doing it because I have to do it. I am not doing it the least bit

because I want to … psychologically there was no way that I could hack
another adoption. It took me about four and a half years to get my head
on straight. There was just no way I was going to go through it again.47
Thus it must be acknowledged that, irrespective of one’s view of the moral-

ity of abortion, forcing a woman to carry an unwanted pregnancy to term is
frequently detrimental to her mental wellbeing.
Indeed, many States recognise this reality by providing a health exception
to restrictions on abortion. According to a 2009 World Health Organization
report, 85% of developed countries and 54% of developing countries allow
abortion where necessary to preserve the physical or mental health of the
woman.48 However, this still leaves a large number of countries that fail
to recognise the injury to a woman’s mental health that may be caused by
preventing her from accessing abortion services. Further, while:
[l]aws that permit abortion to protect a woman’s health, and more spe-
cifically her mental health, suggest recognition of the potential serious
adverse impact on women’s mental health of having to continue with
an unwanted pregnancy … such legislation may be implemented …
in a highly restrictive fashion, by requiring that women demonstrate
significant physical or psychiatric pathology.49
Thus while the existence of a mental health exception to restrictions on abor-

tion demonstrates some level of recognition of the potential mental health
effects of restricting access to abortion, whether the exception is applied in a
broad or a restrictive manner is crucial in assessing the practical effect of such
an exception.
(ii) Negating post-abortion syndrome

In recent years many opponents of the right to abortion have invoked post-
abortion syndrome as part of their reasoning for opposing abortion. In the
words of Reva B Siegel:
Since the 1990s, increasing numbers of antiabortion advocates have

decided that the public’s willingness to restrict abortion crucially turns
on judgments about women. The movement has devised a way of arguing
47 Carol Gilligan, In a Different Voice (Harvard University Press, Cambridge, 1982) 85.
its case that is designed to quell these concerns. It has transformed PAS
[Post Abortion Syndrome] – a therapeutic discourse initially employed
to recruit women to the antiabortion movement – into WPAA [woman-
protective antiabortion argument] – a political discourse designed to
persuade audiences outside the movement’s ranks who are ambivalent
about restricting abortion because of their concerns about women. To
meet the concerns of this audience, the antiabortion movement is now
arguing that restricting abortion promotes the health and freedom of
women.50
Anne Speckhard and Vincent Rue are well-known proponents of the notion
of post- abortion syndrome.51 They coined the term and defined it as ‘a type
of PTSD [post-traumatic stress disorder] that is characterized by the chronic
or delayed development of symptoms resulting from impacted emotional
reactions to the perceived physical and mental trauma of abortion.’52 David
Reardon is another prominent advocate of post-abortion syndrome.53 He has
conducted numerous studies, which, he claims, demonstrate the existence
of such a syndrome, for example by revealing that women who access abor-
tion services have higher rates of subsequent death, outpatient admissions,
inpatient admissions and sleep disturbances than women who continue their
pregnancies to term.54 Further, David Fergusson has suggested that there
is a link between abortion and mental health problems such as depression
and anxiety.55 Acceptance of this argument has begun to move into the
legal domain. In its 2007 decision of Gonzales v Carhart,56 the United States
Supreme Court upheld the Partial-Birth Abortion Ban Act,57 which prohibits
a certain form of late-term abortion (intact dilation and extraction) with no
health-based exception. In doing so, it cited an amicus brief that argued that
women should be protected from making a decision they might regret.58
In other words, in its most recent abortion-related decision, the majority
50 Reva B Siegel, ‘The Right’s Reasons: Constitutional Conflict and the Spread of Woman-
Protective Antiabortion Argument’ (2008) 57 Duke Law Journal 1641, 1688. In this article,
Siegel chronicles the growth of this movement in the United States and thoroughly discredits it.
51 See for example: Anne C Speckhard and Vincent M Rue, ‘Postabortion Syndrome: An Emerging
Public Health Concern’ (1992) 48(3) Journal of Social Issues 95.
52 Anne C Speckhard and Vincent M Rue, ‘Postabortion Syndrome: An Emerging Public Health
Concern’ (1992) 48(3) Journal of Social Issues 95.
53 See for example: David C Reardon, Making Abortion Rare: A Healing Strategy for a Divided Nation
(Acorn Books, Michigan, 1996).
54 See: Brenda Major et al, Report of the APA Task Force on Mental Health and Abortion, American
Psychological Association Task Force (2008) 22.
55 See for example: David M Fergusson, Joseph M Boden and L John Horwood, ‘Abortion among
Young Women and Subsequent Life Outcomes’ (2007) 39(1) Perspectives on Sexual and Reproductive
Health 6; David M Fergusson, L John Horwood and Elizabeth M Ridder, ‘Abortion in Young
Women and Subsequent Mental Health’ (2006) 47 Journal of Child Psychology and Psychiatry 16.
56 127 S Ct 1610 (2007).
57 Partial Birth Abortion Ban Act of 2003, 18 USC § 1531 (Supp V 2005).
58 Gonzales v Carhart 127 S Ct 1610, 1634 (2007).
of the Supreme Court seemed to accept the woman-protective rationale for
restricting abortion.59
In contrast, the studies supporting the existence of post-abortion syndrome
have been criticised by the American Psychological Association60 and the
American Psychiatric Association does not recognise post-abortion syndrome
as a diagnosis.61 Further, in its 2008 report on mental health and abortion
the American Psychological Association concluded that ‘the most methodo-
logically sound research indicates that among women who have a single,
legal, first-trimester abortion of an unplanned pregnancy for nontherapeutic
reasons, the relative risks of mental health problems are no greater than the
risks among women who deliver an unplanned pregnancy.’62 Similarly, a
review of studies conducted by researchers at the Johns Hopkins Bloomberg
School of Public Health found that ‘the highest quality studies had findings
that were mostly neutral, suggesting few, if any, differences between women
who had abortions and their respective comparison groups in terms of mental
health sequelae. Conversely, studies with the most flawed methodology found
negative mental health sequelae of abortion.’63
There are numerous studies that negate the existence of post-abortion syn-
drome. For example, in a study of 1,247 women who elected either to abort
or to deliver an unwanted first pregnancy, it was found that terminating com-
pared with delivering an unwanted first pregnancy was not directly related
to the risk of clinically significant depression.64 A study of approximately
13,000 women (which has been lauded for its methodological rigour)65 was
conducted jointly by the Royal College of General Practitioners and the Royal
College of Obstetricians and Gynecologists in the United Kingdom. This
study compared those who chose to abort an unplanned pregnancy with those
who chose to give birth and found that there were equivalent rates of psycho-
logical disorders among the two groups.66 In addition, in light of the rates of
59 For a detailed discussion of this aspect of the Supreme Court’s decision see: Reva B Siegel, ‘The
Right’s Reasons: Constitutional Conflict and the Spread of Woman-Protective Antiabortion
Argument’ (2008) 57 Duke Law Journal 1641.
60 See: Brenda Major et al, Report of the APA Task Force on Mental Health and Abortion, American
Psychological Association Task Force (2008) 22, 24, 46.
61 American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (4th ed,
Arlington, 2002).
62 Brenda Major et al, Report of the APA Task Force on Mental Health and Abortion, American
Psychological Association Task Force (2008) 22, 71.
63 Vignetta E Charles, Chelsea B Polis, Srinivas K Sridhara and Robert W Blum, ‘Abortion
and Long-Term Mental Health Outcomes: A Systematic Review of the Evidence’ (2008) 78
Contraception 436.
64 Sarah Schmiege and Nancy Felipe Russo, ‘Depression and Unwanted First Pregnancy:
Longitudinal Cohort Study’ (28 October 2005) British Medical Journal http://www.bmj.com/
content/331/7528/1303.full
65 Brenda Major et al, Report of the APA Task Force on Mental Health and Abortion, American
Psychological Association Task Force (2008) 66.
66 Anne C Gilchrist et al, ‘Termination of Pregnancy and Psychiatric Morbidity’ (1995) 167 British
Journal of Psychiatry 243. See also: Royal Australian and New Zealand College of Obstetricians
postpartum depression among the general population, there is little basis for
suggesting that the potential negative psychological effects of abortion are
any greater than the potential negative psychological effects of giving birth.67
For example, a recently published Danish study found that the ‘relative risk
of a psychiatric contact did not differ significantly after abortion as compared
with before abortion … but did increase after childbirth as compared with
before childbirth.’68
Some research indicates that certain women actually experience positive
psychological effects as a consequence of an abortion experience. For example,
in an eight-year study of over 5,000 women, Nancy Russo and Kristin Zierk
found that ‘women who had had 1 abortion had higher self-esteem in general,
and greater feelings of worth and capableness and fewer feelings of failure in
particular, than did women who had had no abortions – despite the fact that
they had experienced the stress of an unwanted pregnancy.’69 In his 1991
review of the literature, Paul Dagg found that most women express positive
reactions to having an abortion and only a small minority express any degree
of regret. Similarly, negative feelings present before the abortion disappear,
with normalisation of various scores.70 Likewise, Dorothy Sit and colleagues
found that most patients experienced post-abortion mood improvement.71
The following quote of one woman’s experience provides some insight into
the way in which some women describe the termination of a pregnancy as an
empowering experience:
Because now that you are going to take control of your life, you don’t
feel like you are a pawn in other people’s hands. You have to accept the
fact that you have done something wrong, and it also gives you a little
more integrity, because you are not fighting off these things in yourself
all the time. A lot of conflicts are resolved, and you have a sense of a new
beginning, based on a kind of conviction that you can act in a situation.72
and Gynaecologists, Termination of Pregnancy: A Resource for Health Professionals (November 2005);
Royal College of Obstetricians and Gynaecologists, The Care of Women Requesting Induced Abortion,
Evidence-Based Clinical Guideline No 7 (2004) 9.
67 Gregory H Wilmoth, ‘Abortion, Public Health Policy, and Informed Consent Legislation’
(1992) 48(3) Journal of Social Issues 1, 10–11.
68 Trine Munk-Olsen, Thomas Munk Laursen, Carsten B Pedersen, Øjvind Lidegaard and Preben
Bo Mortensen, ‘Induced First-Trimester Abortion and Risk of Mental Disorder’ (2011) 364(4)
New England Journal of Medicine 332.
69 Nancy Felipe Russo and Kristin L Zierk, ‘Abortion, Childbearing, and Women’s Well-Being’
(1992) 23(4) Professional Psychology: Research and Practice 269.
70 Paul K B Dagg, ‘The Psychological Sequelae of Therapeutic Abortion – Denied and Completed’
(1991) 148(5) American Journal of Psychiatry 578.
71 Dorothy Sit, Anthony J Rothschild, Mitchell D Creinin, Barbara H Hanusa and Katherine L.
Wisner, ‘Psychiatric Outcomes Following Medical and Surgical Abortion’ (2006) 22(3) Human
Reproduction 878. See also Royal Australian and New Zealand College of Obstetricians and
Gynaecologists, Termination of Pregnancy: A Resource for Health Professionals (November 2005) 4.
72 Carol Gilligan, In a Different Voice (Harvard University Press, Cambridge, 1982) 133.
Further, many women describe feelings of relief following an abortion:
A year later, I can say with certainty that I made the right decision. I
have suffered no sorrow, no guilt, no pain … only relief that I was able
to correct a mistake that would have altered my life forever … Was the
embryo inside me life in some form? Yes, of-course. Was it the equivalent
of an adult life such that its rights should have exceeded mine? No. Do I
believe that I committed murder? No. Do I regret it? Am I sorry? No.73
(iii) The stigmatising effect of restrictions on abortion

Despite the research negating the existence of post-abortion syndrome and
despite the reality that terminating a pregnancy may have positive mental
health consequences for some women, it is undeniable that for other women
terminating a pregnancy is an emotionally difficult process. Whether a wom-
an’s experience of abortion is predominantly positive or negative will to a
large extent depend on a variety of factors, including the ‘wantedness’ of
the child and the woman’s own attitude towards the morality of abortion.74
According to the World Health Organization:
[p]ost-abortion mental health appears to be enhanced where there is no

history of violence, when there is no conflict about the abortion within
usually supportive relationships or with the partner, when the abortion
is not kept secret from others, and when the woman has high self-efficacy
… A society’s legal, religious, medical and social expectations and infra-
structure are likely [to] have an important bearing on all these factors.75
Some studies suggest that broader societal attitudes and values affect women’s
responses to abortion. A study by Brenda Major and colleagues found that
women who told close others (such as a partner, family or friends) of their
abortion but perceived them as less than completely supportive had poorer
post-abortion psychological adjustment than either women who did not tell
or women who told and perceived complete support.76 Catherine Cozzarelli
and colleagues found that women who encountered anti-abortion picketers
when entering a clinic to have an abortion were negatively affected by those
picketers in the short term.77
73 Marge Berer, ‘National Laws and Unsafe Abortion: The Parameters of Change’ (2004) 12(Supp
24) Reproductive Health Matters 1, 6.
74 Nancy E Adler, ‘Unwanted Pregnancy and Abortion: Definitional and Research Issues’ (1992)
48(3) Journal of Social Issues 19.
76 Brenda Major et al, ‘Perceived Social Support, Self-Efficacy, and Adjustment to Abortion’ (1990)
59(3) Journal of Personality and Social Psychology 452.
77 Catherine Cozzarelli et al, ‘Women’s Experiences of and Reactions to Antiabortion Picketing’
(2000) 22(4) Basic and Applied Social Psychology 265.
On a more macro level, Brenda Major and Richard Gramzow researched the
effect of the stigmatising aspect of abortion. They found that women who felt
stigmatised by abortion were more likely to feel a need to keep it a secret from
family and friends. Secrecy was related positively to suppressing thoughts of
the abortion and negatively to disclosing abortion-related emotions to others.
Greater thought suppression was associated with experiencing more intrusive
thoughts of the abortion. Both suppression and intrusive thoughts, in turn,
were positively related to increases in psychological distress over time.78 In
general, it seems that stigmatisation gives rise to increased risk of numerous
health problems, including depression, hypertension, coronary heart disease,
and stroke.79
Mary Boyle discusses the reality that society’s negative construction of
abortion influences the way in which women experience abortion; the reality
that cultural constructions of abortion position it as a secret in many women’s
lives.80 For example, research has predominantly focused on the negative
effects of abortion, social discourses still link femininity to motherhood and
cast abortion in a deviant light, counsellors often lead women preparing for
an abortion to anticipate feelings of grief and medical professionals frequently
seem judgemental when discussing abortion.81 Therefore, in light of the fact
that women who terminate their pregnancies often feel the weight of stigma
attaching to their actions, it is reasonable to presume that even if a woman
suffers negative mental health consequences from terminating her pregnancy,
such consequences may be attributable to the social and cultural construction
of abortion and to the fact that she feels stigmatised.
The question may be posed – even if it is accepted that there is a direct
correlation between stigma and negative mental health consequences, what
does stigma have to do with the law? How do legal restrictions on abortion
exacerbate the stigma attached to abortion? Anand Grover, United Nations
Special Rapporteur on the right to health, has noted that ‘restrictive regimes,
which are not replicated in other areas of sexual and reproductive health care,
serve to reinforce the stigma that abortion is an objectionable practice.’82
While this is not the appropriate point to engage in a comprehensive discus-
sion of the relationship between legal change and social change, it is clear that
(at least to some extent) the law has the capacity to affect changes in social
78 Brenda Major and Richard H Gramzow, ‘Abortion as Stigma: Cognitive and Emotional
Implications of Concealment’ (1999) 77(4) Journal of Personality and Social Psychology 735.
See also: David A Grimes et al, ‘Unsafe Abortion: The Preventable Pandemic’ (2006) 368
The Lancet 1908, 1914 on the link between stigma related to abortion and negative health
consequences.
79 Brenda Major and Laurie T O’Brien, ‘The Social Psychology of Stigma’ (2005) 56 Annual Review
of Psychology 393.
80 Mary Boyle, Re-thinking Abortion (Routledge, London/New York, 1997) 118.
81 Mary Boyle, Re-thinking Abortion (Routledge, London/New York, 1997) 102–113.
82 Anand Grover, Report of the Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest
Attainable Standard of Physical and Mental Health, UN Doc A/66/254 (3 August 2011) [24].
values, behaviour and expectations. The law is capable of aiding in the stig-
matisation of certain behaviour or characteristics and, conversely, of aiding
in the removal of stigmatisation. Eric Posner illustrates this point when he
states that:
Symbolism and stigma play a role in every major piece of legislation.

Flag desecration bills are designed to rebut the symbolism of destroying
flags. Affirmative action enhances the stigma of belonging to a minor-
ity, according to its opponents, or weakens that stigma, according to its
defenders. Modern social welfare and bankruptcy legislation was intended
to eliminate the stigma against people who are poor and cannot pay their
debts, and against aliens and illegitimate children, yet earlier versions of
this legislation were intended to strengthen the stigma. Expungement
laws, which erase criminal convictions from offenders’ records, reduce the
stigma of the ex-convict. And debates over issues as diverse as the sale
of organs, surrogate motherhood, the legalization of prostitution, cost-
benefit analysis, and pornography invariably raise questions about the
symbolism of the practice in question and the use of law to control it.83
Thus if it is accepted that the law plays a role in exacerbating or removing

social stigma, then it must be accepted that prohibitions on abortion exac-
erbate the stigma attached to abortion. Consequently, if it is accepted that
individuals who feel stigmatised suffer negative mental health consequences
as a result of such stigmatisation, then it must be accepted that there is a con-
nection between legal restrictions on abortion and psychological/psychiatric
disorder.
(b) Physical pain or suffering
(i) The physical effects of unsafe abortion

He used a syringe to squirt something into me. I suspect it was soapy
water – I later learned that that is what was often used. I paid him
£150 and he was going to go. Then the pain began and it was fright-
ful, just terrible. I jack-knifed and screamed in pain and the girl who
was with me came rushing in.84
According to the World Health Organization, approximately 22 million

unsafe abortions are performed globally each year and 98% of them take place
in developing countries. As a result of this high global rate of unsafe abortion,
every year an estimated 47,000 women die and an additional 5 million women
83 Eric A Posner, Law and Social Norms (Harvard University Press, Cambridge, 2000) 2–3.
84 Angela Neustatter and Gina Newson, Mixed Feelings: The Experience of Abortion (Pluto Press
Limited, London, 1986) 85.
suffer from temporary or permanent disability.85 Further, unsafe abortion
accounts for 13% of maternal deaths and 20% of the total mortality and dis-
ability burden due to pregnancy and childbirth in terms of disability-adjusted
life years.86
Unsafe abortion may be defined as ‘a procedure for terminating an unin-
tended pregnancy either by individuals without the necessary skills or in
an environment that does not conform to minimum medical standards, or
both.’87 Common mechanisms for affecting an unsafe abortion include treat-
ments taken by mouth (such as quinine, turpentine or acid); treatments
placed in the vagina or cervix (such as herbal preparations); intramuscular
injections; foreign objects placed into the uterus through the cervix (such
as a knitting needle or coat hanger); enemas and direct trauma.88 Common
medical complications associated with unsafe abortions include haemorrhage,
sepsis, peritonitis and trauma.89 The most common cause of death is septic
shock with multi-organ failure, with or without haemorrhage.90 Other poten-
tial consequences of unsafe abortions include bowel injury and acute renal
failure.91 Long-term complications of survivors of severe morbidity include
infertility and chronic pelvic pain.92 When a woman suffers sepsis or haem-
orrhage, a hysterectomy may be necessary to save her life, gas gangrene is
common when foreign objects have been inserted as part of the abortion
process and tetanus is a real risk for women who have not been immunised.93
According to Susan Fawcus:
The most common morbidities associated with unsafe abortion are sepsis
and haemorrhage. In addition, trauma from foreign bodies and metabolic
complications associated with renal failure can arise from ingestion of
chemicals for abortion. The sepsis results from a combination of retained
products, trauma and non-sterile techniques. It can be compounded by
85 World Health Organization, Safe Abortion: Technical and Policy Guidance for Health Systems (2012)
17.
86 World Health Organization, Unsafe Abortion: Global and Regional Estimates of Incidence of Unsafe
Abortion and Associated Mortality in 2003 (2007) 5.
87 David A Grimes et al, ‘Unsafe Abortion: The Preventable Pandemic’ (2006) 368 The Lancet
1908, 1908.
1908, 1908 and 1911.
1908, 1910.
90 Susan R Fawcus, ‘Maternal Mortality and Unsafe Abortion’ (2008) 22(3) Best Practice and Research
Clinical Obstetrics and Gynaecology 533, 533.
91 David A Grimes, ‘The Role of Medical Technology’ in Ina K Warriner and Iqbal H Shah (eds),
Preventing Unsafe Abortion and its Consequences: Priorities for Research and Action (Guttmacher
Institute, New York, 2006) 73, 84.
1908, 1910.
late presentation at a health facility because of fear of criminal investiga-
tions. Uterine sepsis, if not treated or if treated inadequately, can lead to
uterine necrosis with peritonitis, septic shock and various organ failures
(paralytic ileus, disseminated intravascular coagulopathy, adult respira-
tory distress syndrome, liver dysfunction and renal failure). Severe haem-
orrhage can result in death from hypovolemic shock and coagulopathy.
Trauma of the genital tract can cause death by sepsis or haemorrhage.
It can result from bowel trauma from sharp objects passed through the
cervix, which perforate the uterus and damage the bowel.94
The serious public health problem posed by unsafe abortion practices is

increasingly being recognised on the world stage. The 1994 Report of the
International Conference on Population and Development specifically urges
all States ‘to strengthen their commitment to women’s health’ and to ‘deal
with the health impact of unsafe abortion as a major public health concern.’95
It goes on to state in the same paragraph that ‘where abortion is not against
the law, such abortion should be safe. In all cases, women should have
access to quality services for the management of complications arising from
abortion.’96 The 1995 Report of the Fourth World Conference on Women
states that ‘unsafe abortions threaten the lives of a large number of women,
representing a grave public health problem as it is primarily the poorest and
youngest who take the highest risk.’97 It further calls on States to ‘[r]ecognize
and deal with the health impact of unsafe abortion as a major public health
concern’.98 In the same paragraph, the report acknowledges the link between
laws prohibiting abortion and unsafe abortions.
(ii) The link between safety and legality

Legal restrictions on abortion drive abortion underground, thereby creat-
ing the space for unsafe abortions to flourish in.99 While there are numer-
ous factors that contribute to the incidence of unsafe abortion in any given
country (including service, social, economic, religious and policy factors)
97 United Nations, Report of the Fourth World Conference on Women, UN Doc A/CONF.177/20 (17
October 1995) [97].
98 United Nations, Report of the Fourth World Conference on Women, UN Doc A/CONF.177/20 (17
October 1995) [106].
99 ‘[A]bortion bans increase the number of women dying but do not decrease the number of abor-
tions’: Naomi Cahn and Anne T Goldstein, ‘The Legacy of Roe: The Constitution, Reproductive
Rights, and Feminism: Roe and its Global Impact’ (2004) 6 University of Pennsylvania Journal of
Constitutional Law 695, 701.
legal restrictions have been categorised as the main determinant of unsafe
abortion.100 According to the World Health Organization, the ‘incidence
of unsafe abortion is influenced by the legal provisions governing access to
safe abortion, as well as the availability and quality of legal abortion ser-
vices. Restrictive legislation is associated with a high incidence of unsafe abortion.’101
Susheela Singh extrapolates on this notion, stating that:
[I]t is also true that all abortions that occur where the procedure is highly
restricted by law, are to some extent ‘unsafe’ – even those that are per-
formed by a medically trained professional are clandestine and unregu-
lated; for example, should there be any medical problem or malpractice,
a woman would have little or no chance of recourse.102
The link between legality and safety is demonstrated by empirical evidence.

Many countries retain extremely restrictive abortion laws. For example, in
approximately 70 countries, abortion is not legally permitted where necessary
to preserve the physical health of the woman.103 Data from 165 countries
demonstrate that the incidence of unsafe abortion is highest in countries with
restrictive abortion legislation.104 The case of Romania provides a clear exam-
ple of the link between legality and safety. From 1957 to 1966 access to abor-
tion was legal and widespread. In 1960 the abortion mortality ratio was 20
per 100,000 live births. In 1966 access to abortion was legally restricted and
by 1989 mortality ratios had risen to 148 deaths per 100,000 live births with
abortion accounting for 87% of the deaths. In 1989 the law was once again
changed to provide for easier and safer access to abortion services. Within the
year the mortality ratio fell by more than half and by 2002 mortality from
100 Axel I Mundigo, ‘Determinants of Unsafe Induced Abortion in Developing Countries’ in Ina
K Warriner and Iqbal H Shah (eds), Preventing Unsafe Abortion and its Consequences: Priorities for
Research and Action (Guttmacher Institute, New York, 2006) 51, 52–54.
Abortion and Associated Mortality in 2003 (2007) 2 (emphasis added). See also: David A Grimes
et al, ‘Unsafe Abortion: The Preventable Pandemic’ (2006) 368 The Lancet 1908, 1908; Ina K
Warriner, ‘Unsafe Abortion: An Overview of Priorities and Needs’ in Ina K Warriner and Iqbal
H Shah (eds), Preventing Unsafe Abortion and its Consequences: Priorities for Research and Action
(Guttmacher Institute, New York, 2006); Marge Berer, ‘National Laws and Unsafe Abortion:
The Parameters of Change’ (2004) 12(Supp 24) Reproductive Health Matters 1, 2.
102 Susheela Singh, ‘The Incidence of Unsafe Abortion: A Global Review’ in Ina K Warriner and
Iqbal H Shah (eds), Preventing Unsafe Abortion and its Consequences: Priorities for Research and
Action (Guttmacher Institute, New York, 2006) 35, 38–40. See also Gilda Sedgh, Stanley
Henshaw, Susheela Singh, Elisabeth Åhman and Iqbal H Shah, ‘Induced Abortion: Estimated
Rates and Trends Worldwide’ (2007) 370 The Lancet 1338, 1339.
Abortion and Associated Mortality in 2003 (2007) 2; Center for Reproductive Rights, The World’s
Abortion Laws (2011).
104 Susan R Fawcus, ‘Maternal Mortality and Unsafe Abortion’ (2008) 22(3) Best Practice and
Research Clinical Obstetrics and Gynaecology 533, 539; Marge Berer, ‘National Laws and Unsafe
Abortion: The Parameters of Change’ (2004) 12(Supp 24) Reproductive Health Matters 1.
unsafe abortions was as low as nine per 100,000 live births.105 Another exam-
ple is the United States where the rate of abortion-related deaths decreased by
85% in the five years following Roe v Wade.106
Thus the evidence clearly shows that there is a link between the legality
of abortion, the safety of abortion procedures and the pain and suffering that
women undergoing unsafe abortions frequently experience. The point is not
that all illegal abortions result in women experiencing severe pain and suf-
fering. This is not the case; there are examples of women undergoing illegal
abortions that do not give rise to severe pain and suffering.107 However, as the
data suggest, many women are not so lucky. Many women confronted with
the reality of an unwanted pregnancy feel that they have no choice but to
undergo illegal and unsafe abortions in circumstances that give rise to severe
pain and suffering.108
(iii) The pain and suffering of childbirth

The logical consequence of forcing a woman to continue with an unwanted
pregnancy is that, at the end of the gestation period, the woman gives birth
to a child. The pain involved in childbirth is common knowledge.109 Louis
Michael Seidman, in a discussion analogising restrictions on abortion to tor-
ture, states that ‘[c]hildbirth, the frequent culmination of pregnancy, is not
only uncontrollable but also extremely painful. The moment when a woman
goes into labor often cannot be predicted, and labor itself is often experi-
enced as an excruciating loss of control over one’s body.’110 In the words of a
Ghanaian mother, ‘the time that you deliver, the pain is so severe that if God
1908, 1913.
106 410 US 113, 153 (1973). See Naomi Cahn and Anne T Goldstein, ‘The Legacy of Roe: The
Constitution, Reproductive Rights, and Feminism: Roe and its Global Impact’ (2004) 6
University of Pennsylvania Journal of Constitutional Law 695, 701.
107 See for example: Helen Garner’s statement that by the time she sought an abortion in the 1960s
‘it was possible in Melbourne to get a skilful, clean, yet still illegal abortion’ in Jo Wainer (ed)
Lost: Illegal Abortion Stories (Melbourne University Press, Melbourne, 2006) viii.
108 For further discussion of the link between the safety and legality of abortion services see:
Rebecca J Cook and Bernard M Dickens, ‘Human Rights Dynamics of Abortion Law Reform’
(2003) 25 Human Rights Quarterly 1.
109 See for example: Stephen Eugene Wilkinson and Lynn Clark Callister, ‘Giving Birth: The
Voices of Ghanaian Women’ (2010) 31 Health Care for Women International 201; Camille
H Raynes-Greenow, Natasha Nassar, Siranda Torvaldsen, Lyndal Trevena and Christine L
Roberts, ‘Assisting Informed Decision Making for Labour Analgesia: A Randomised Controlled
Trial of a Decision Aid for Labour Analgesia versus a Pamphlet’ (2010) 10(15) BMC Pregnancy
and Childbirth http://www.biomedcentral.com/1471-2393/10/15; Sohinee Bhattacharya, Tao
Wang and Fiona Knox, ‘Analgesia for labour pain – analysis of the trends and associations in
the Grampian region of Scotland between 1986 and 2001’ (2006) 6(14) BMC Pregnancy and
Childbirth http://www.ncbi.nlm.nih.gov/pmc/articles/PMC1463007/.
110 Louis Michael Seidman, ‘Torture’s Truth’ (2005) 72 University of Chicago Law Review 881,
910.
hasn’t intervened, you will die at the spot.’111 Therefore, prima facie, it seems
clear that forcing a woman to give birth results in her enduring severe pain
and suffering.
Some may argue that, given advances in medicine, the pain of childbirth
can be managed to be virtually non-existent. For example, an epidural ensures
that a woman feels no pain in the lower half of her body.112 The fact that
effective pain management is frequently unavailable in developing countries
(which represent the majority of countries with highly restrictive abortion
laws) notwithstanding,113 to invoke this argument is to ignore the reality that
the administration of an epidural involves the piercing of a needle into an
epidural space in the back.114 The performing of an operation (such as a cae-
sarean) or other invasive medical procedure (such as an epidural) constitutes
a significant invasion of a person’s physical integrity and autonomy. Such an
invasion of physical integrity may itself be sufficient to satisfy the ‘severe pain
or suffering’ element of the article 1 definition of torture.115 This conceptuali-
sation of the element of ‘severe pain or suffering’ is discussed in the following
part concerning the physical pain and suffering resulting from an involuntary
sterilisation procedure. The key exception to this position is obviously the
circumstance of a woman who consents to the medical procedure in question.
Thus, for example, a woman who carries a wanted pregnancy to term and con-
sents to the administration of an epidural to provide pain relief during labour
is clearly not enduring ‘severe pain or suffering’ as understood in the context
of the definition of torture. However, a woman who is forced to continue with
an unwanted pregnancy and then has to ‘choose’ between the pain of natural
childbirth and the invasion of her physical integrity (which is inherent in the
administration of effective pain management procedures) may in fact suffer
from ‘severe pain or suffering’ in both scenarios. Consequently, it is arguable
that a woman who is forced to continue with an unwanted pregnancy and as a
result is forced to give birth to a child endures ‘severe pain or suffering.’
111 Stephen Eugene Wilkinson and Lynn Clark Callister, ‘Giving Birth: The Voices of Ghanaian
Women’ (2010) 31 Health Care for Women International 201, 215.
112 Institute for Quality and Efficiency in Health Care, Fact Sheet: Epidurals for Pain Relief in
Labour (2008) http://www.gesundheitsinformation.de/fact-sheet-epidurals-for-pain-relief-in-
labour.189.en.html at 19 April 2013; Cedars-Sinai Medical Center, Questions about Childbirth
Pain (2010) http://www.womenshealthconference.org/Patients/Programs-and-Services/
Obstetrics-and-Gynecology/Frequently-Asked-Questions/Questions-about-Childbirth-Pain.
aspx at 19 April 2013.
113 Matt Size, Olaitan A Soyannwo and Douglas M Justins, ‘Pain Management in Developing
Countries’ (2007) 62 (Supp 1) Anaesthesia 38.
114 Institute for Quality and Efficiency in Health Care, Fact Sheet: Epidurals for Pain Relief in
Labour (2008) http://www.gesundheitsinformation.de/fact-sheet-epidurals-for-pain-relief-in-
labour.189.en.html at 19 April 2013; Cedars-Sinai Medical Center, Questions about Childbirth
Pain (2010) http://www.womenshealthconference.org/Patients/Programs-and-Services/
Obstetrics-and-Gynecology/Frequently-Asked-Questions/Questions-about-Childbirth-Pain.
aspx at 19 April 2013.
115 See: Jeremy Waldron, ‘Torture and Positive Law: Jurisprudence for the White House’ (2005)
105 Columbia Law Review 1681.
5 Involuntary sterilisation
Women of all different ages, racial groups and ethnicities have been (and con-
tinue to be) sterilised either without their knowledge or against their will for
reasons ranging from population control to eugenics. Many of these women
bear the mental as well as physical scars of their experience and live lives of
enduring pain and suffering as a result of this usurpation of their individual
dignity and autonomy. Therefore, it is clearly arguable that involuntary steri-
lisation causes severe pain and suffering. In its General Recommendation
19, the Committee on the Elimination of Discrimination against Women
(CEDAW Committee) specifically states that ‘[c]ompulsory sterilization or
abortion adversely affects women’s physical and mental health.’116 From a
mental health perspective, the socially constructed association between female
identity and reproductive capacity exacerbates the negative psychological and
psychiatric impact of infertility. Given the clear link between infertility and
pain and suffering, it seems obvious that where such infertility is imposed on
an otherwise fertile woman, pain and suffering are multiplied. From a physical
perspective, involuntary sterilisation may in certain circumstances give rise to
severe pain and suffering. Yet even in circumstances where the literal meaning
of that phrase is not met, it is submitted that involuntary sterilisation always
takes place in the context of violence and brutality against the woman; it is
always an invasion of physical integrity and autonomy. As such, involuntary
sterilisation may cause severe pain and suffering, both physical and mental.
(a) Mental pain or suffering

This section explores the reality that infertility causes acute pain and suffering
for women all over the world, and that where such infertility is inflicted on an
otherwise fertile woman, the pain and suffering are significantly magnified.
However, before embarking on this discussion, it is useful to take a step back
for a moment and consider briefly the way in which the pain caused by infer-
tility is linked with society’s construction of female identity as being bound
up with reproductive capacity.
(i) Mental pain and suffering caused by infertility

Women who are unable to reproduce are often viewed as ‘lesser’ women.
This is the case irrespective of the particular social and cultural context. Tara
Cousineau and Alice Domar make the point that in ‘many cultures, individuals
perceive their childlessness as a sign of diminished status, defectiveness, and
reduced competence.’117 Further, according to a World Health Organization
116 Committee on the Elimination of Discrimination against Women, General Recommendation 19:
Violence against Women, UN Doc A/47/38 (29 January 1992) [22].
117 Tara M Cousineau and Alice D Domar, ‘Psychological Impact of Infertility’ (2007) 21(2) Best
Practice & Research Clinical Obstetrics and Gynaecology 293, 296.
report, in developing countries some infertile women ‘choose suicide over the
torturous life and mental anguish caused by infertility’.118 Indeed, it seems
that the more patriarchal a society, the more a woman’s worth is measured
in accordance with her fertility. Thus in Egypt, there is a well-known meta-
phor that ‘a flowerpot without flowers is not a flowerpot.’119 While not quite
as overt, this is also the case in Western societies that pride themselves on
having eschewed the hallmarks of patriarchy. Germaine Greer eloquently
makes the point when she states that ‘[a]ll women are encouraged to iden-
tify themselves as potential mothers from childhood; no men see themselves
primarily as potential fathers.’120
Thus all societies, whether developed or developing, construct female
identity as being interwoven with reproductive capacity. Women who are
‘childless’ are frequently constructed as selfish and career driven or inferior
objects of pity.121 The idea that a woman may choose not to have children or
that there may be other pursuits that adequately fulfil her remains anathema
within a mainstream society that casts such women as either deficient or
deviant.122 Thus infertile women suffer from a stigmatisation in which they
are essentially cast as inferior on the basis that they do not fulfil society’s
definition of women as mothers. Throughout the ages infertility has been
construed as a curse, a punishment for bad behaviour, a symbol of a woman’s
inferiority.123 The earlier discussion regarding the mental pain and suffering
caused by restrictions on abortion includes an analysis of the negative mental
health effects of stigmatisation. Needless to say, such negative mental health
effects are also apparent when such stigmatisation is the result of infertility.
In fact, a recent study on the relationship between perceived stigma, disclo-
sure patterns, support and distress in new attendees at an infertility clinic
found ‘a direct pathway from stigma to infertility-specific distress … [o]f
particular interest is that for women, there was a significant pathway from
infertility-related distress to generalized distress.’124
Apart from isolation, ostracism and stigmatisation, other social
118 World Health Organization, Current Practices and Controversies in Assisted Reproduction (2002) 16.
119 Marcia C Inhorn, Infertility and Patriarchy: The Cultural Politics of Gender and Family Life in Egypt
(University of Pennsylvania Press, Philadelphia, 1996) 58.
120 Germaine Greer, ‘Afterword’ in Jane Haynes and Juliet Miller (eds), Inconceivable Conceptions:
Psychological Aspects of Infertility and Reproductive Technology (Brunner-Routeledge, East Sussex/
New York, 2003) 207, 214.
121 Mardy S Ireland, Reconceiving Women: Separating Motherhood from Female Identity (Guilford Press,
New York/London, 1993) 7.
122 Mardy S Ireland, Reconceiving Women: Separating Motherhood from Female Identity (Guilford Press,
New York/London, 1993) 13.
123 Marcia C Inhorn and Frank Van Balen (eds), Infertility around the Globe: New Thinking on
Childlessness, Gender, and Reproductive Technologies (University of California Press, Berkeley,
2002).
124 Pauline Slade et al, ‘The Relationship between Perceived Stigma, Disclosure Patterns,
Support and Distress in New Attendees at an Infertility Clinic’ (2007) 22(8) Human Reproduction
2316.
consequences of infertility that may have a negative psychological or psychi-
atric impact include sexual dysfunction, relationship breakdown and abuse.125
Further, studies indicate that infertility may cause numerous psychologi-
cal and psychiatric problems including general distress, grief, depression,
anxiety, reduced self-esteem and hostility.126 According to Jody Madeira:
Identified psychological responses to infertility include surprise, denial,

anxiety, anger, guilt, poor self-image or decreased self-esteem, isolation,
distrust of one’s body, loss of bodily integrity and privacy, overgen-
eralization of loss of control over reproduction to other aspects of life,
hopelessness, feelings of unfulfillment, inability to plan for the future,
compromised ability to find alternate goals and meaning in life, social
withdrawal, and depression. Many researchers have found that most infer-
tility patients, particularly women, find infertility and its treatment to
be ‘the most upsetting experience of their lives.’ An infertility diagnosis
is often described as an intangible loss that triggers cyclical grieving like
that from a loved one’s death. It involves multiple losses: pregnancy,
childbirth, and breastfeeding; a sense of genetic continuity, experiences
125 Tara M Cousineau and Alice D Domar, ‘Psychological Impact of Infertility’ (2007) 21(2)
Best Practice & Research Clinical Obstetrics and Gynaecology 293, 296; Pauline Slade et al, ‘The
Relationship between Perceived Stigma, Disclosure Patterns, Support and Distress in New
Attendees at an Infertility Clinic’ (2007) 22(8) Human Reproduction 2309; Ingegerd Wirtberg
et al, ‘Life 20 Years after Unsuccessful Infertility Treatment’ (2007) 22(2) Human Reproduction
598; Silke J Dyer et al, ‘“Men Leave Me as I Cannot Have Children”: Women’s Experiences with
Involuntary Childlessness’ (2002) 17(6) Human Reproduction 1663; Hidehiko Matsubayashi et
al, ‘Emotional Distress of Infertile Women in Japan’ (2001) 16(5) Human Reproduction 966;
Björn J Oddens, Isolde den Tonkelaar and Hugo Nieuwenhuyse, ‘Psychosocial Experiences in
Women Facing Fertility Problems – A Comparative Survey’ (1999) 14(1) Human Reproduction
255.
126 Tara M Cousineau and Alice D Domar, ‘Psychological Impact of Infertility’ (2007) 21(2)
Best Practice & Research Clinical Obstetrics and Gynaecology 293, 294; Alice D Domar et al,
‘The Prevalence and Predictability of Depression in Infertile Women’ (1992) 58(6) Fertility,
Sterility 1158; Mary Casey Jacob, Julia McQuillan and Arthur L Greil, ‘Psychological Distress
by Type of Fertility Barrier’ (2006) 22(3) Human Reproduction 885; Batool Rashidi et al,
‘Health Related Quality of Life in Infertile Couples Receiving IVF or ICSI Treatment’ (2008)
8(186) BMC Health Services Research http://www.biomedcentral.com/1472-6963/8/186; Silke
J Dyer et al, ‘Psychological Distress among Women Suffering from Couple Infertility in
South Africa: a Quantitative Assessment’ (2005) 20(7) Human Reproduction 1938; Pauline
Slade et al, ‘The Relationship between Perceived Stigma, Disclosure Patterns, Support and
Distress in New Attendees at an Infertility Clinic’ (2007) 22(8) Human Reproduction 2309;
Silke J Dyer et al, ‘“Men Leave Me as I Cannot Have Children”: Women’s Experiences with
Involuntary Childlessness’ (2002) 17(6) Human Reproduction 1663; Hidehiko Matsubayashi et
al, ‘Emotional Distress of Infertile Women in Japan’ (2001) 16(5) Human Reproduction 966;
Björn J Oddens, Isolde den Tonkelaar and Hugo Nieuwenhuyse, ‘Psychosocial Experiences in
Women Facing Fertility Problems – A Comparative Survey’ (1999) 14(1) Human Reproduction
255; Abdullahi Fido and Muhammad Ajmal Zahid, ‘Coping with Infertility among
Kuwaiti Women: Cultural Perspectives’ (2004) 50(4) International Journal of Social Psychiatry
294; Jennifer Savitz-Smith, ‘Couples Undergoing Infertility Treatment: Implications for
Counselors’ (2003) 11(4) The Family Journal 383.
of parenthood and relationships, and a key element of adult and gender
identity.127
It is clear that infertility is the cause of much pain and suffering all over the
world. It affects many women in an acute and life-changing manner, irrespec-
tive of the geographic or cultural context.128 The literature is replete with
testimonies of women who desperately yearn for a child describing the mental
health effects of this unfulfilled yearning. According to one such woman,
‘infertility makes you feel as if your world has come to an end and no one else
can possibly share the same grief as you.’129 If it is accepted that infertility
is the source of untold pain and suffering for numerous women, in circum-
stances where an otherwise fertile woman is compelled against her free will to
forgo her fertility, it stands to reason that such a woman suffers from an even
more harrowing form of pain and suffering.
(ii) Mental pain and suffering caused by involuntary sterilisation

Involuntary sterilisation has been strongly condemned as the cause of acute
mental pain and suffering. For example, as previously mentioned, in General
Recommendation 19, the CEDAW Committee specifically states that com-
pulsory sterilisation adversely affects women’s mental health.130 Further, in a
case involving the sterilisation of a Hungarian Romani woman without her
knowledge or informed consent, the CEDAW Committee found that there
was a violation of articles 10, 12 and 16 of the Convention on the Elimination
of All Forms of Discrimination against Women (CEDAW).131 As part of this
decision, the CEDAW Committee took specific note of the woman’s assertion
that ‘the sterilization has had a profound impact on her life for which she
127 Jody Lyneé Madeira, ‘Common Misconceptions: Reconciling Legal Constructions of Women
in Infertility and Abortion Contexts’ (Working Paper, Indiana University Maurer School of
Law-Bloomington, 2010) 22 (citations omitted).
128 For examples of the different cultural contexts in which negative mental health consequences of
infertility have been noted see: Batool Rashidi et al, ‘Health Related Quality of Life in Infertile
Couples Receiving IVF or ICSI Treatment’ (2008) 8(186) BMC Health Services Research http://
www.biomedcentral.com/1472-6963/8/186 (Iran); Ingegerd Wirtberg et al, ‘Life 20 Years
after Unsuccessful Infertility Treatment’ (2007) 22(2) Human Reproduction 598 (Sweden); Silke
J Dyer et al, ‘Psychological Distress among Women Suffering from Couple Infertility in South
Africa: a Quantitative Assessment’ (2005) 20(7) Human Reproduction 1938 (South Africa);
Hidehiko Matsubayashi et al, ‘Emotional Distress of Infertile Women in Japan’ (2001) 16(5)
Human Reproduction 966 (Japan); Abdullahi Fido and Muhammad Ajmal Zahid, ‘Coping with
Infertility among Kuwaiti Women: Cultural Perspectives’ (2004) 50(4) International Journal of
Social Psychiatry 294 (Kuwait).
129 Jill Emery, ‘Silent Suffering’ (1995) 311 British Medical Journal 1647, 1647.
Violence against Women, UN Doc A/47/38 (29 January 1992) [22].
131 AS v Hungary, Committee on the Elimination of Discrimination against Women,
Communication No 4/2004, UN Doc A/61/38 (14 August 2006).
and her partner have been treated medically for depression’ and that ‘her loss
of fertility caused psychological trauma and had a detrimental effect on her
private life.’132
Similarly, the European Court has recognised the mental pain and suffer-
ing caused by involuntary sterilisation in a number of decisions involving
the involuntary sterilisation of Romani women in Slovakia. For example, in
the case VC v Slovakia,133 which involved the involuntary sterilisation of a
Romani woman at a public hospital during the delivery of her second child by
caesarean section, the court found that the sterilisation ‘was liable to arouse in
her feelings of fear, anguish and inferiority and to entail lasting suffering.’134
Likewise, in the case of NB v Slovakia,135 which involved the involuntary
sterilisation of a 17-year-old Romani woman, the court found ‘no reason to
doubt that her inability to have children strongly diminished her position as
a woman living within a Roma community and entailed mental suffering.’136
Involuntary sterilisation has occurred (and still occurs) in contexts too
numerous to comprehensively discuss in this chapter, thus the ensuing dis-
cussion is merely illustrative of a number of examples. China’s one-child
policy and the often brutal methods by which the policy is enforced are well
known. Many people have testified to the instances of forced abortion and
forced sterilisation that have become symbols of the broader ideology of sup-
pressing individual rights for the benefit of the majority.137 One example
is the testimony of two Tibetan Buddhist monks who witnessed a Chinese
mobile birth control team in 1987. They reported that ‘all pregnant women
had abortions followed by sterilization, and every woman of child-bearing age
was sterilized. “We saw many girls crying, heard their screams as they waited
for their turn to go into the tent”.’138
One of the most well-known United States cases addressing the issue
of involuntary sterilisation is Madrigal v Quilligan,139 a case involving ten
Mexican women who were subjected to involuntary sterilisation in the Los
Angeles County Hospital in circumstances indicative of race-based and class-
based discrimination. While the court ultimately found in favour of the hos-
pital, Judge Jesse Curtis conceded that ‘there is no doubt that these women
have suffered severe emotional and physical stress.’140 Further, in the asylum
132 AS v Hungary, Committee on the Elimination of Discrimination against Women,

Communication No 4/2004, UN Doc A/61/38 (14 August 2006) [2.4], [7.7].
133 (2011) Eur Court HR 18968/07.
134 VC v Slovakia (2011) Eur Court HR 18968/07 [118].
135 (2012) Eur Court HR 29518/10.
136 NB v Slovakia (2012) Eur Court HR 29518/10 [80].
137 See for example: Ying Chen, ‘China’s One Child Policy and its Violations of Women’s and
Children’s Rights’ (2009) 22 New York International Law Review 1.
138 Eva Herzer and Sara B Levin, ‘China’s Denial of Tibetan Women’s Right to Reproductive
Freedom’ (1996) 3 Michigan Journal of Gender and Law 551, 561.
139 639 F 2d 789 (1981).
140 Quoted in Thomas M Shapiro, Population Control Politics: Women, Sterilization, and Reproductive
Choice (Temple University Press, Philadelphia, 1985) 91.
context, the United States Court of Appeal for the Ninth Circuit has referred
to involuntary sterilisation as involving ‘drastic and emotionally painful
consequences that are unending.’141
Across the ocean in Europe, women have also been subjected to invol-
untary sterilisation procedures. The plight of Romani women, mentioned
already, is particularly poignant given that the targeting of these women
also betrays the race-based and class-based discrimination that frequently
form an integral component of the policies and practice of involuntary
sterilisation. There are numerous testimonies of women who have been
subjected to involuntary sterilisation that affirm the pain and enduring
suffering that are frequently a consequence of this experience. For example,
Stela, a Slovakian Romani woman, states that ‘I want more children. I get
nervous sometimes thinking about this … I feel pain because I do not have
more children.’142
In Africa, too, involuntary sterilisation has reared its ugly head and recent
reports of the involuntary sterilisation of HIV-positive women in Namibia
have caused a stir. In a domestic case addressing this issue, Hoff J notes that
the plaintiff, who was subjected to an involuntary sterilisation procedure,
‘suffered and continues to suffer ongoing mental and emotional anguish’ and
that she ‘endured and continues to endure shock, pain and suffering.’143
Another context in which women have frequently been subjected to invol-
untary sterilisation procedures is the context of sterilising people with intel-
lectual disabilities. Studies suggest that many people with an intellectual
disability understand the effects of sterilisation, maintain negative feelings
towards the procedure and (as occurs in people without an intellectual dis-
ability) exhibit signs of ‘depression, sexual insecurity, symbolic castration
and regret over loss of child-bearing ability.’144 Further, the view has been
expressed that most people with an intellectual disability ‘can understand
the implications of sterilization’ and that ‘[s]terilizing mentally handicapped
people against their will can produce serious and significant psychological
damage.’145 In addition, sterilisation of women with intellectual disabilities
has also been associated with loss of self-esteem, increased anxiety, degraded
status and perception of the self as deviant.146 In the United States context,
many women were sterilised as part of the United States eugenics revival (that
141 Qu v Gonzales 399 F 3d 1195 (9th Cir 2005) 2946.

142 Center for Reproductive Rights and Poradňa pre občianske a l’udské práva, Body and Soul:
Forced Sterilization and other Assaults on Roma Reproductive Freedom in Slovakia (2003) 56–57.
143 LM and Ors v The Government of the Republic of Namibia, High Court of Namibia (30 July 2012) [6].
144 Philip Roos, ‘Psychological Impact of Sterilization on the Individual’ (1975) 1 Law & Psychology
Review 45, 52.
145 Ronald J Christie and Eric C McCracken, ‘Sex and the Mentally Retarded: Is Sterilization the
Answer?’ (1983) 29 Canadian Family Physician 1474, 1477.
146 S M Smith, ‘Critical Issues in Psychiatry and Reproduction’ (1991) 7 Advances in Contraception,
173, 179; Susan M Brady, ‘Sterilization of Girls and Women with Intellectual Disabilities’
(2001) 7(4) Violence against Women 432, 447.
began in the early 20th century and continued into the 1970s), which advo-
cated the sterilisation of people with intellectual disabilities. In the words of
one such woman, ‘[s]terilization is a terrible thing to do to a woman. They
had no right to do that to me. They never ask you about it. They told me that
it was just for my appendix and then they did that to me.’147 In a more recent
Australian context, in 2001 Women With Disabilities Australia convened a
forum entitled the National Forum on Sterilisation and Reproductive Health
of Women and Girls with Disabilities. As part of this forum, the women
discussed the impact of sterilisation on women with disabilities. Among the
sentiments expressed as part of this discussion, one woman stated that ‘[t]he
psychological effects are huge – it takes away your feelings of womanhood’,
another declared that she felt as though she had been ‘raped’, a third claimed
that ‘[b]ecause I will not go through obvious menopause, in my culture that
means I have no marker for becoming an “elder”.’148 Thus it is apparent that
among the effects of involuntary sterilisation are enduring mental pain and
suffering. This is true across all contexts in which involuntary sterilisation
has occurred.
(b) Physical pain or suffering

Female sterilisation procedures can be divided into two broad categories:
procedures for ‘reaching’ the fallopian tubes and methods for ‘occluding’ the
fallopian tubes. Procedures for ‘reaching’ the fallopian tubes include minilap-
arotomy, laparoscopy and laparotomy. Methods for ‘occluding’ the fallopian
tubes include ligation and excision, mechanical devices such as clips, rings
or microinserts and electrocoagulation.149 Other sterilisation procedures that
do not fit into either of these categories (and that are typically not used when
sterilisation is the sole objective of the procedure) include hysterectomy and
endometrial ablative techniques.150
(i) The literal approach

When a sterilisation procedure is performed in a developing country in cir-
cumstances in which conditions are unsanitary and the personnel is unskilled,
147 Stephen Trombley, The Right to Reproduce: A History of Coercive Sterilization (George Weidenfeld
& Nicolson Limited, London, 1988) 171.
148 Leanne Dowse and Carolyn Frohmader, Moving Forward: Sterilisation and Reproductive Health of
Women and Girls with Disabilities (Women With Disabilities Australia, Rosny Park, 2001) 34.
149 EngenderHealth, Contraceptive Sterilization: Global Issues and Trends (EngenderHealth, New
York, 2002) 139.
York, 2002) 146. It should be noted that this section only mentions the sterilisation pro-
cedures most commonly in use. There are numerous other procedures (such as vaginal
approaches and transcervical approaches) which have not been mentioned because they are not
in common use.
it may cause severe physical pain and suffering. Mechanisms for pain
management are frequently unavailable in such countries thereby exacerbat-
ing the pain experienced by women undergoing sterilisation procedures.151
An example of the experiences of women in developing countries may be
found in the work of anthropologist Joyce Pettigrew, who spoke to women
in the Indian Punjab. She found that ‘almost every village woman who had
undergone sterilization complained of persistent pain in the pelvic area and
lower back region’ and concluded that ‘the side effects of sterilization are
worse for poor laboring women … [b]ecause they do not have time to rest
or the facilities to bathe properly after the operation.’152 In the words of one
such woman, ‘[a]fter this operation we suffer so much’ and in the words of
another, ‘when we cannot work the husbands say “go and die”.’153 Further, the
unhygienic conditions under which village women were sterilised exacerbated
their suffering; in fact, it has been revealed that numerous deaths resulted
from the Punjab sterilisation program.154
In contrast, in developed countries in which sterilisation procedures are
conducted in sanitary conditions, by skilled personnel, with appropriate
pain management facilities, sterilisation is generally regarded as a reasonably
simple and safe operation following which pain can generally be managed.155
However, all forms of surgical sterilisation involve some level of post-
operative pain. In fact, ‘acute postoperative pain is well known.’156 A study
comparing levels of post-operative pain in women undergoing sterilisation by
microinsert (Essure) with levels of post-operative pain in women undergoing
laparoscopic sterilisation found that 31% of the Essure group and 63% of the
laparoscopic sterilisation group reported moderate or severe pain.157 Another
study of pain following laparoscopic sterilisation found that pain is severe in
some patients and absent in others and that women frequently experience
nausea, abdominal pain or shoulder pain following this procedure.158 Further,
151 Matt Size, Olaitan A Soyannwo and Douglas M Justins, ‘Pain Management in Developing
Countries’ (2007) 62 (Supp 1) Anaesthesia 38.
152 Betsy Hartmann, Reproductive Rights and Wrongs: The Global Politics of Population Control (Revised
ed, Harper & Row, New York, 1995) 245.
York, 2002) 139; Earle W Wilson, ‘Sterilization’ (1996) 10(1) Bailière’s Clinical Obstetrics and
Gynaecology 115.
156 Ellen Hiemstra, Philomeen TM Weijenborg and Frank Willem Jansen, ‘Management of
Chronic Pelvic Pain Additional to Tubal Sterilization’ (2008) 29(3) Journal of Psychosomatic
Obstetrics and Gynecology 153.
157 Sean Duffy et al, ‘Female Sterilisation: A Cohort Controlled Comparative Study of
ESSURE Versus Laparascopic Sterilisation’ (2005) 112 British Journal of Obstetrics and
Gynaecology 1522.
158 Frank F Dobbs et al, ‘Pain After Laparoscopy Related to Posture and Ring Versus Clip
Sterilization’ (1987) 94 British Journal of Obstetrics and Gynaecology 262.
all surgical sterilisation procedures involve a risk (albeit often slight) of future
complications.159
However, in the context of developed countries the medical literature indi-
cates that while post-operative pain is common, it can generally be effectively
managed. Further, while there is always a risk that certain complications
will arise from a sterilisation procedure thereby causing severe pain and suf-
fering, this is true of all medical procedures and the materialisation of such
complications are the exception rather than the rule. Therefore, it is necessary
to consider: if severe physical pain and suffering cannot be established as a
general rule (at least in the context of developed countries) does this mean
that the argument that involuntary sterilisation may constitute torture rests
on the establishment of severe mental pain and suffering? Or is there a differ-
ent way of conceptualising the ‘severe pain and suffering’ requirement so as to
conclude that torture in this context may be established on the basis of both
physical and mental pain and suffering?
(ii) The broad approach

In considering the scope and application of the prohibition of torture, Jeremy
Waldron criticises what he views as the ‘quest for definitional precision.’160
He views attempts to define ‘torture’ precisely as undermining the gravity
of the concept by reducing and simplifying it to a prohibition that is able
to be concisely measured and articulated, akin to a speed limit or a parking
permit.161 According to Waldron, each area of law has an ‘archetype’ a ‘par-
ticular provision in a system of norms that has a significance going beyond
its immediate normative content, a significance stemming from the fact that
159 See for example: Stephen Robson and Richard Henshaw, ‘Intractable Pelvic Pain Following
Filshie Clip Application’ (1997) 37(2) Australian and New Zealand Journal of Obstetrics and
Gynaecology 242; Ellen Hiemstra, Philomeen TM Weijenborg and Frank Willem Jansen,
‘Management of Chronic Pelvic Pain Additional to Tubal Sterilization’ (2008) 29(3) Journal
of Psychosomatic Obstetrics and Gynecology 153; James A Daucher and Anne M Weber, ‘Chronic
Abdominal Pain After Laparascopic Sterilization Clip Placement’ (2006) 108(6) Obstetrics &
Gynecology 1540; John R Miliauskas, ‘Migration of Filshie Clip into the Urinary Bladder
with Abscess Formation’ (2003) 35(4) Pathology 356; Gary N Frishman and Norman A Brest,
‘Hulka Clip Application as a Potential Cause of Chronic Pelvic Pain’ (1992) 45 Contraception
325; Lincoln D Russin, ‘Hydrosalpinx’ (1986) 159 Radiology 115; Josje Langenveld et al,
‘Tubal Perforation by Essure: Three Different Clinical Presentations’ (2008) 90(5) Fertility and
Sterility 2011.e5; Andrew W Beckwith, ‘Persistent Pain After Hysteroscopic Sterilization with
Microinserts’ (2008) 111 Obstetrics & Gynecology 511; Iviva Olenick, ‘The Risk of Hysterectomy
Quadruples After Women Undergo Sterilization’ (1998) 30(6) Family Planning Perspectives 297;
EngenderHealth, Contraceptive Sterilization: Global Issues and Trends (EngenderHealth, New
York, 2002) 139, 152; Lilo T Strauss et al, ‘Sterilization-Associated Deaths: A Global Survey’
(1984) 22 International Journal of Gynaecology and Obstetrics 67.
160 Jeremy Waldron, ‘Torture and Positive Law: Jurisprudence for the White House’ (2005) 105
Columbia Law Review 1681, 1697.
Columbia Law Review 1681, 1688–1709.
it sums up or makes vivid to us the point, purpose, principle or policy of a
whole area of law.’162 The prohibition of torture, from his perspective, is a
‘legal archetype’; it is ‘vividly emblematic of our determination to sever the
link between law and brutality.’163
Considering specifically the rule against torture as an archetype in United
States law, Waldron discusses the principle of procedural due process with
particular reference to the case of Rochin v California.164 In this case, the
suspect was forced to ingest an emetic solution, causing him to bring up
two morphine capsules that he had swallowed as a means of destroying the
evidence. The Supreme Court held that the capsules were inadmissible as
evidence on the basis that ‘force so brutal and so offensive to human dignity’
was constitutionally prohibited and that there was little difference between
forcing a confession from a suspect’s lips and forcing a substance from his
body.165 It is arguable by analogy that invading a woman’s physical integrity
by subjecting her to involuntary sterilisation is similarly brutal and offensive
to human dignity.
Waldron summarises his argument in this way: ‘[T]he prohibition on
torture is a legal archetype emblematic of our determination to break the
connection between law and brutality and to reinforce its commitment to
human dignity, even when law is at its most forceful and its subjects are
at their most vulnerable.’166 When conceptualised as a core mechanism for
separating law from brutality, the essence of the element of ‘severe pain and
suffering’ is a resistance to legally sanctioned brutality or, phrased differ-
ently, the invasion of physical integrity. This notion is not entirely novel.
In the context of the United States ‘war on terror’ Seth Kreimer has com-
mented that ‘[T]orture is alien to our Constitution both because it impinges
on bodily integrity, and because it assaults the autonomy and dignity of the
victim.’167 Article 5 of the American Convention on Human Rights, the
article which specifically addresses the prohibition of torture, begins with the
statement that ‘[E]very person has the right to have his physical, mental, and
Columbia Law Review 1681, 1722–1726. Examples of legal archetypes that Waldron presents
include habeus corpus statutes representing liberty and freedom from physical confinement and
the case of Brown v Board of Education 347 US 483 (1954), which represents the law’s commit-
ment to desegregation.
164 342 US 165 (1952).
Columbia Law Review 1681, 1731–1732.
167 Seth F Kreimer, ‘Too Close to the Rack and the Screw: Constitutional Constraints on Torture
in the War on Terror’ (2003) 6 University of Pennsylvania Journal of Constitutional Law 278,
294–295.
moral integrity respected.’168 In addition, a number of Special Rapporteurs
have specifically made the link between torture and the invasion of physical
integrity.169 For example, Manfred Nowak has labelled torture ‘the most
serious violation of the human right to personal integrity’170 and, in his com-
mentary on article 7 of the ICCPR, equates the prohibition of torture with
‘the right to physical and spiritual integrity.’171 Further, in a case involving
judicial corporal punishment, the European Court (in finding a violation of
article 3) stated that:
[A]lthough the applicant did not suffer any severe or long-lasting physi-
cal effects, his punishment – whereby he was treated as an object in the
power of the authorities – constituted an assault on precisely that which
it is one of the main purposes of [the prohibition] to protect, namely a
person’s dignity and physical integrity.172
This broader conceptual approach to the meaning of torture seems to have

been adopted in other contexts. The development of the conceptualisation of
rape as torture is a useful example. As alluded to in Chapter 1 of this book,
after years of viewing rape as essentially a crime against honour, both inter-
national human rights law and international criminal law have begun to cat-
egorise rape as torture in certain circumstances. In a similar vein to Waldron’s
rejection of a strict definitional approach to torture, in the case of Prosecutor
v Akayesu,173 the International Criminal Tribunal for Rwanda rejected an
approach to the crime of rape that rests on ‘a mechanical description of objects
or body parts.’174 Instead, the tribunal expressed the view that it is more
useful to focus ‘on the conceptual framework of State sanctioned violence.’175
Specifically analogising rape with torture, the tribunal stated that:
Like torture, rape is used for such purposes as intimidation, degrada-

tion, humiliation, discrimination, punishment, control or destruction of
123, art 5(1) (entered into force 18 July 1978).
169 See for example: Peter Kooijmans, Report of the Special Rapporteur on Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment, UN Doc E/CN.4/1986/15 (19 February 1986);
Nigel S Rodley, Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, UN Doc E/CN.4/1992/SR.21 (21 February 1992); Manfred Nowak,
Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment, UN Doc A/63/175 (28 July 2008).
171 Manfred Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary (2nd ed, N P
Engel Verlag, Kehl, 2005) 157.
173 Prosecutor v Akayesu Case No ICTR-96-4-T (2 September 1998) (Judgment).
174 Prosecutor v Akayesu Case No ICTR-96-4-T (2 September 1998) [597] (Judgment).
175 Prosecutor v Akayesu Case No ICTR-96-4-T (2 September 1998) [597] (Judgment).
a person. Like torture, rape is a violation of personal dignity, and rape in
fact constitutes torture when inflicted by or at the instigation of or with the
consent or acquiescence of a public official or other person acting in an
official capacity.176
When finding that rape in a particular context constitutes torture, decisions

of both international human rights and international criminal law institu-
tions have tended to systematically establish the various elements of the defi-
nition of torture, finding that the victim endured severe pain and suffering.177
Yet it seems that in the case of rape, the true repugnance of the offence rests
on those components of the offence that cannot be easily measured but that
seem to encapsulate the essence of the severe pain and suffering requirement
– that being, the assault on bodily integrity and autonomy, and the brutality
of the invasion of personhood. While not directly articulated in this way, this
view seems to be inherent in many of the decisions finding rape to constitute
torture in certain circumstances. For example, the Trial Chamber in the case
of Prosecutor v Mucić, Delić, Landžo & Delalić specifically stated that:
The Trial Chamber considers the rape of any person to be a despicable act
which strikes at the very core of human dignity and physical integrity. The con-
demnation and punishment of rape becomes all the more urgent where
it is committed by, or at the instigation of, a public official, or with the
consent or acquiescence of such an official. Rape causes severe pain and
suffering, both physical and psychological.178
Radhika Coomaraswamy has expressed similar sentiments, conceptualising

rape as torture and stating that rape constitutes ‘an intrusion into the most
private and intimate part of a woman’s body, as well as an assault on the core
of her self’.179 In relation to other extreme forms of violence against women,
Coomaraswamy has also advocated for a conceptualisation of these offences as
torture and has utilised this broad approach to the severe pain and suffering
element of the offence of torture in her comments on the need to ensure that
the gravity of these crimes is appreciated by the international community. For
example, she has asserted that:
[T]hose cultural practices that involve ‘severe pain and suffering’ for the
woman or the girl child, those that do not respect the physical integrity of
176 Prosecutor v Akayesu Case No ICTR-96-4-T (2 September 1998) [597] (Judgment) (emphasis
added).
177 See for example: Prosecutor v Mucić, Delić, Landžo & Delalić Case No IT-96-21-T (16 November
1998) (Judgement); Prosecutor v Furundžija Case No IT-95-17/1-T (10 December 1998)
(Judgment); Mejía v Perú [1996] Inter-Am Comm HR (ser l) No 5/96.
178 Prosecutor v Mucić, Delić, Landžo & Delalić Case No IT-96-21-T (16 November 1998) [495]
(Judgment) (emphasis added).
Consequences, UN Doc E/CN.4/1999/68/Add.4 (21 January 1999).
the female body, must receive maximum international security and agi-
tation. It is imperative that practices such as female genital mutilation,
honour killings, Sati or any other form of cultural practice that brutalizes
the female body receive international attention, and international leverage
should be used to ensure that these practices are curtailed and eliminated
as quickly as possible.180
Similarly, in her discussion of domestic violence as torture Rhonda Copelon

emphasises the seriousness of the invasion of bodily integrity. She states that
‘[T]hrough scrutiny and control of her body – forced nakedness, sexual abuse
and rape, control over food, sleep and bodily functions – captors and batterers
aim to destroy women’s sense of autonomy and dignity.’181
When the severe pain or suffering requirement is conceptualised in this
way, it is submitted that involuntary sterilisation meets the definitional
requirement of ‘severe pain or suffering, whether physical or mental.’ It is
clear that involuntary sterilisation may cause severe mental pain and suffer-
ing. It is clear that in the context of countries in which conditions may be
unsanitary and pain management inadequate, involuntary sterilisation may
cause severe physical pain and suffering. It is also clear that in the context of
developed countries involuntary sterilisation may cause severe physical pain
and suffering in some women. But what about those women who do not
experience severe physical pain or suffering? Are they not also the victims of
physical torture? When the actual concept of severe physical pain or suffering
is conceptualised so as to encapsulate the notion that the law and those who
implement it must not sanction brutality, severe physical pain or suffering
can be established in the context of involuntary sterilisation regardless of
whether the procedure takes place in a developed or developing country and
regardless of whether the inherent risks in the procedure manifest themselves.
The Special Rapporteur on violence against women has categorised invol-
untary sterilisation as a form of violence against women.182 The invasion of
physical integrity and autonomy that is inherent in the process of involuntary
sterilisation, the brutality inherent in conducting an operation on another
human being without her informed consent, may be sufficient to meet the
‘pain or suffering’ requirement contained in the definition of torture.
6 Conclusion
This chapter began with the argument that both restrictions on abortion
and involuntary sterilisation fall within the meaning of an ‘act’ per article 1
Consequences, UN Doc E/CN.4/2002/83 (31 January 2002) [6] (emphasis added).
(1994) 25 Columbia Human Rights Law Review 291, 346 (emphasis added).
Consequences, UN Doc E/CN.4/1999/68/Add.4 (21 January 1999).
of CAT. After briefly considering the meaning of ‘severe’ it then proceeded
to consider whether restrictions on reproductive freedom may cause severe
pain and suffering. When considering restrictive regulation of abortion, it
was argued that legally preventing a woman from accessing abortion services
frequently results in severe mental pain and suffering. In addition, it was
asserted that the physical pain and suffering resulting from both unsafe abor-
tions and childbirth also frequently rises to the level of severity required by
the article 1 definition of torture. When considering involuntary sterilisation
procedures, the view was expressed that infertility that is not the result of an
involuntary sterilisation procedure frequently causes mental pain and suffer-
ing and that where such infertility is the result of an involuntary sterilisation
procedure the resulting mental pain and suffering is magnified. Further, when
considering whether involuntary sterilisation causes severe physical pain and
suffering, it was asserted that, in some contexts, involuntary sterilisation
causes severe physical pain and suffering as the phrase is literally understood.
Moreover, this chapter posited that even in circumstances in which severe
physical pain or suffering cannot be established in the literal sense, it may
nevertheless be established when conceptualised more broadly on the basis
that the performing of an involuntary sterilisation procedure constitutes a
brutal invasion of a woman’s physical integrity. Therefore, it was argued that
an analysis of the first element of the definition of torture from a gender-
sensitive perspective reveals that this element is frequently satisfied in the
case of restrictions on reproductive freedom.
4 Intentionally
such purposes as obtaining from him or a third person information or
a confession, punishing him for an act he or a third person has com-
mitted or is suspected of having committed, or intimidating or coerc-
ing him or a third person, or for any reason based on discrimination of
any kind, when such pain or suffering is inflicted by or at the instiga-
tion of or with the consent or acquiescence of a public official or other
person acting in an official capacity. It does not include pain or suffer-
ing arising only from, inherent in or incidental to lawful sanctions.1
1 Introduction
In order to establish that certain conduct amounts to torture, it is necessary to
demonstrate not only that the conduct caused severe pain or suffering but also
that such pain or suffering was ‘intentionally inflicted’. It should be noted that
an intention to perform the relevant act is not sufficient to meet this element
of the definition of torture; the intention must extend to an intention to inflict
pain or suffering. Thus, in the context of this book, it is necessary to consider:
when a State legally restricts access to abortion, can it be viewed as intending to
cause severe pain or suffering?2 Are law-makers intending to cause severe pain
2 It should be noted that this argument presumes the existence of legislative intent. There is
much scholarly debate regarding the existence and meaning of legislative intent but discussion
of this debate is beyond the scope of this book. For various perspectives on the issue of legisla-
tive intent see for example: Ronald Dworkin, Law’s Empire (Belknap Press, Cambridge, 1986);
Andrei Marmor (ed), Law and Interpretation (Clarendon Press, Oxford, 1995); Natalie Stoljar,
‘Postulated Authors and Hypothetical Intentions’ in Ngaire Naffine, Rosemary Owens and John
Williams (eds), Intention in Law and Philosophy (Dartmouth Publishing Company, Aldershot,
2001) 271; Tom Campbell, ‘Legislative Intent and Democratic Decision Making’ in Ngaire
Naffine, Rosemary Owens and John Williams (eds), Intention in Law and Philosophy (Dartmouth
Publishing Company, Aldershot, 2001) 291.
or suffering? When a person performs an involuntary sterilisation procedure,
can that person be viewed as intentionally causing severe pain or suffering?3
The first and primary part of this chapter considers the meaning of ‘inten-
tionally’ in article 1 of CAT. It begins by noting the general consensus that
‘intentionally’ under CAT excludes negligent conduct. In light of the dearth of
a clear, authoritative and comprehensive analysis of the concept of intention in
the international legal discourse, the chapter then considers the domestic law of
the United Kingdom and Australia to demonstrate the various possible inter-
pretations of the concept of intention. These different models for the character-
isation of intention provide the background and framework for a consideration
of how intention is characterised at the international level. The second part of
this chapter considers the doctrine of double effect, which may be invoked in
response to the argument that the intentional infliction of severe pain or suffer-
ing is frequently established in the context of restrictions on abortion.
2 The meaning of ‘intentionally’ in article 1 of CAT
(a) ‘Intentionally’ excludes negligent conduct

Article 1 of CAT clearly states that in order to fall within the definition of tor-
ture, severe pain or suffering must be intentionally inflicted. Yet despite this
explicit requirement, in comparison with other aspects of the definition of tor-
ture commentators and the Committee against Torture (CAT Committee) itself
generally seem to bypass this element without comment, seemingly assuming
it to be a non-issue in most cases. In the brief discussions regarding intention
that permeate the scholarly discourse, leading commentators on CAT gener-
ally limit their commentary on the meaning of intention to the observation
that ‘intentionally’ in the context of the article 1 definition of torture excludes
negligent conduct. J Herman Burgers and Hans Danelius state that ‘[a]ccording
to the definition in article 1, torture must be an intentional act. It follows that
where pain or suffering is the result of an accident or of mere negligence, the
criteria for regarding the act as torture are not fulfilled.’4 Manfred Nowak and
Elizabeth McArthur have commented that ‘[p]urely negligent conduct … can
never be considered as torture’5 and Ahcene Boulesbaa has affirmed that the term
‘intentionally’ as used in article 1 ‘implies the exclusion of negligent conduct.’6
3 In the context of involuntary sterilisation, it is also necessary to discuss whether the State can be
held responsible for the actions of the surgeon in question. This question of State responsibility/
involvement of a public official is addressed in Chapter 6 of this book.
6 Ahcene Boulesbaa, ‘Analysis and Proposals for the Rectification of the Ambiguities Inherent in
Article 1 of the U.N. Convention on Torture’ (1990) 5 Florida International Law Journal 293, 309.
Intentionally 99
Accordingly, assuming that ‘intentionally’ under article 1 of CAT is interp-
reted so as to exclude negligent conduct, it is necessary to consider what is
negligence and how does the concept of intention differ from the concept of
negligence. Whereas the international legal system has paid limited attention
to this issue, these questions have been discussed in great detail in various
domestic legal contexts. Therefore, it is useful to engage in a preliminary
examination of the domestic legal approach to this issue in order to dem-
onstrate the different ways in which intention has been characterised before
delving into the interpretation of the concept of intention under article 1
of CAT. By way of example, this preliminary examination considers the
approach of Australian law and, to a lesser extent, United Kingdom law.
(b) Distinction between ‘intention’ and ‘negligence’ under domestic law

The concept of intention is significant in many areas of the domestic law of
many countries. For example, the ‘fault element of most serious crimes is
generally expressed as an intention to bring about the requisite physical ele-
ment of the offence.’7 Further, intention is relevant to establishing liability
in the context of intentional torts; legislative intent is often contemplated
when interpreting legislation; and intent to enter into a contract is considered
a part of contract law. Yet despite the significance of the concept of inten-
tion in many areas of domestic law, it is a concept that remains shrouded in
confusion; it is the subject of conflicting interpretations and the source of
much scholarly debate. The lack of clarity regarding the meaning of inten-
tion in the criminal law of the United Kingdom prompted Nicola Lacey to
comment that ‘the transcendentally valid concept of intention which some
commentators take themselves to be seeking is illusory rather than elusive.
Furthermore, the idea of a socially produced concept of intention which can
be applied clearly and stably across a range of cases is … elusive.’8 Similarly,
when considering the meaning of intention from a philosophical perspective,
Frank Jackson concludes that ‘the whole area is a disaster.’9
The meaning of ‘intention’ is the subject of intense debate in the context
of the criminal law; there are three general approaches to its meaning. The
narrowest approach is often referred to as ‘direct intention.’10 It equates inten-
tion with purpose or desire: I intend to bring about a certain consequence if I
desire to bring about that consequence. In other words, ‘an act is intentional
7 Simon Bronitt and Bernadette McSherry, Principles of Criminal Law (3rd ed, Lawbook Co,
Sydney, 2010) 199.
8 Nicola Lacey, ‘A Clear Concept of Intention: Elusive or Illusory?’ (1993) 56(5) Modern Law
Review 621, 642.
9 Frank Jackson, ‘How Decision Theory Illuminates Assignments of Moral Responsibility’ in
Ngaire Naffine, Rosemary Owens and John Williams (eds), Intention in Law and Philosophy
(Dartmouth Publishing Company, Aldershot, 2001) 19, 19.
Sydney, 2010) 200.
as to a consequence if it is done with (motivated by) the wish, desire, purpose
or aim (all synonyms in this context) of producing the result in question.’11
Brent Fisse, for example, adopts the view that intention means ‘conscious
object or purpose’ on the basis that adopting a broader definition of intention
results in confusion between intention and recklessness.12
The second approach to the meaning of intention views intention as encom-
passing both ‘direct intention’ and ‘oblique intention’. Glanville Williams, a
proponent of the inclusion of oblique intention within the general notion of
intention, explains the difference between direct and oblique intention in the
following way:
Direct intention is where the consequence is what you are aiming at.
Oblique intention is something you see clearly, but out of the corner of
your eye. The consequence is (figuratively speaking) not in the straight
line of your purpose, but a side-effect that you accept as an inevitable or
‘certain’ accompaniment of your direct intent (desire-intent). There are
twin consequences of the act, x and y; the doer wants x, and is prepared
to accept its unwanted twin y. Oblique intent is, in other words, a kind
of knowledge or realisation.
When one speaks of the unwanted consequence as being ‘certain’,
one does not, of course, mean certain. ‘Nothing is certain save death and
taxes.’ For example, a person who would otherwise have been the victim
of the criminal’s act may be warned in time, or providentially happen to
change his plans, and so escape what would otherwise have been his fate.
Certainty in human affairs means certainty as a matter of common sense –
certainty apart from unforeseen events or remote possibilities. Realisation
of practical certainty is something higher in the scale than appreciation of
high probability.13
Thus oblique intention is relevant when a particular consequence is the cer-

tain result of the conduct in question even if it is not the desired consequence
or the consequence that the actor specifically aimed to achieve.
The third and broadest approach to the meaning of intention under domes-
tic law is an approach that essentially subsumes the concept of recklessness
within the concept of intention. In the context of Australian tort law, inten-
tion is frequently attributed a wide scope so as to include recklessness, which
is interpreted to mean ‘conscious indifference’.14 In the context of Australian
11 Glanville Williams, ‘Oblique Intention’ (1987) 46(3) Cambridge Law Journal 417, 418 (citations
omitted).
12 Brent Fisse (ed), Howard’s Criminal Law (5th ed, The Law Book Company Limited, Sydney,
1990) 481.
13 Glanville Williams, ‘Oblique Intention’ (1987) 46(3) Cambridge Law Journal 417, 420–421.
14 Peter Cane, ‘Mens Rea in Tort Law’ in Ngaire Naffine, Rosemary Owens and John Williams
(eds), Intention in Law and Philosophy (Dartmouth Publishing Company, Aldershot, 2001) 129,
135–156.
Intentionally 101
criminal law, Simon Bronitt and Bernadette McSherry define recklessness as
‘the state of mind of a person who, while performing an act, is aware of a risk
that a particular consequence is likely to result.’15 Sir Anthony Mason refers to
‘the tendency of judges to extend the legal concept of intention to include the
lesser mental state of foresight of consequences.’16 Ian Leader-Elliot poses the
question: ‘[W]hat grounds can there be for distinguishing “recklessness” from
realisation of a certainty, where both express an attitude of utter indifference
to the anticipated death of another?’17 By posing this question Leader-Elliot
expresses his view that once intention is broadened to include the notion of
‘oblique intention’, there is no logical reason for maintaining the distinction
between intention and recklessness in Australian criminal law. 18
Thus it seems that the conceptualisation of the meaning of intention may
generally be divided into three categories: those who view intention as only
‘direct intention’; those who view intention as including both ‘direct inten-
tion’ and ‘oblique intention’; and those who view intention as including
‘direct intention’, ‘oblique intention’ and some form of foresight of conse-
quences (formulations of this conceptualisation may vary from foresight of
possible risk to foresight of probable risk). ‘Whether couched in terms of
probability or possibility, what is important is that recklessness relates to a
subjective attribution of awareness of risks that are substantial and the “real
and not remote” chance that the consequences will occur.’19 Nevertheless,
while ‘direct intention’, ‘oblique intention’ and ‘recklessness’ are all included
in the subjective fault elements of crimes under Australian criminal law (for
example), these categories remain distinguishable from ‘negligence’.
In Australian criminal law, the focus of the fault elements of intention
and recklessness is the offender’s subjective state of mind, whereas the focus
of the crime of negligence is the offender’s conduct considered against some
form of objective standard. Thus according to Simon Bronitt and Bernadette
McSherry, the distinction between reckless conduct and negligent con-
duct ‘lies in the accused’s subjective awareness of the danger that he or she
is creating.’20 Consequently, whereas the fault elements of intention and
Sydney, 2010) 205.
16 Anthony Mason, ‘Intention in the Law of Murder’ in Ngaire Naffine, Rosemary Owens and John
Williams (eds), Intention in Law and Philosophy (Dartmouth Publishing Company, Aldershot,
2001) 107, 108–109.
17 Ian D Leader-Elliot, ‘Negotiating Intentions in Trials of Guilt and Punishment’ in Ngaire
Publishing Company, Aldershot, 2001) 73, 80.
18 Ian D Leader-Elliot, ‘Negotiating Intentions in Trials of Guilt and Punishment’ in Ngaire
Publishing Company, Aldershot, 2001) 73, 95.
Sydney, 2010) 205 (citations omitted) (emphasis added).
Sydney, 2010) 209.
recklessness require a consideration of the offender’s subjective state of mind
in performing the act and require a consideration of whether the offender
could foresee the resulting harm, the fault element of negligence requires a
consideration of whether the consequence was reasonably foreseeable. In other
words, to establish negligence, the relevant question is whether a reasonable
person would have foreseen the consequences in question whereas to establish
recklessness the relevant question is whether the offender did foresee the
consequences.21 Thus even the broadest interpretation of ‘intention’ under
Australia’s domestic criminal law requires consideration of the offender’s
subjective state of mind.
Having presented some of the various possible characterisations of the
meaning of ‘intention’ in the domestic legal discourse, it is now possible to
consider whether the meaning of intention in article 1 of CAT fits within one
of these characterisations or whether it is subject to a different interpretation.
(c) Broad conceptualisation of ‘intention’ pursuant to article 1 of CAT

In light of the prevailing view, discussed in section (a) of this part, that in the
context of the article 1 definition of torture the intentional infliction of severe
pain or suffering excludes negligent conduct that causes severe pain or suf-
fering, it is necessary to consider the distinction between intention and neg-
ligence in this context. Thus the question arises: How does one know when
severe pain or suffering is intentionally inflicted and is not ‘the result of an
accident or of mere negligence’?22 Does the concept of intention under CAT
fall within one of the categories established in the domestic legal discourse
discussed earlier? When explaining the concept of negligence in the context
of CAT, Manfred Nowak and Elizabeth McArthur provide the example of
a situation in which prison guards forget about a detainee’s existence and
therefore omit to provide the detainee with food. This person will starve to
death as a result of this omission yet the conduct does not constitute torture
because there was no intention to starve the detainee to death – the prison
guards simply forgot that the detainee existed.23 Thus, when interpreting the
article 1 definition of torture, it seems that negligence is to be equated with
‘carelessness’. In other words, conduct that is an accident or the result of care-
lessness will not satisfy the ‘intention’ requirement in the article 1 definition
of torture.
21 See: Simon Bronitt and Bernadette McSherry, Principles of Criminal Law (3rd ed, Lawbook Co,
Sydney, 2010) 209.
Commentary (Oxford University Press, Oxford/New York, 2008) 73. See also: Manfred Nowak,
UN Covenant on Civil and Political Rights: CCPR Commentary (2nd ed, N P Engel Verlag, Kehl,
2005) 161 for a similar example.
Intentionally 103
In General Comment 2, the CAT Committee ‘emphasizes that elements
of intent and purpose in article 1 do not involve a subjective inquiry into
the motivations of the perpetrators, but rather must be objective determina-
tions under the circumstances.’24 Therefore, it seems that, unlike under many
domestic legal systems where intention denotes a subjective standard and
negligence denotes an objective standard, intention pursuant to article 1 of
CAT includes an objective component. Accordingly, it seems that ‘intention’
in this context is interpreted more broadly than intention in many domestic
legal contexts, including the meaning of intention in Australia’s domestic
criminal law, and that negligence is interpreted more narrowly. This broad
view of the notion of ‘intention’ is also evident in the Committee’s reversal of
the traditional onus of proof in the decision of Sahli v Algeria.25 In that deci-
sion, specifically referencing the ‘intention of the officials’, the Committee
states that ‘it is the responsibility of the State party to provide evidence that
the treatment of the victim in detention was not intended to be contrary to
article 1 of the Convention.’26 In other words, there are certain circumstances
in which the Committee will, in fact, presume the intention requirement to
be satisfied.27
In addition to the broad conception of the meaning of intention
demonstrated by the approach of the CAT Committee, some international
law commentators explicitly include the foreseeability of pain and suffering
within the concept of the meaning of intention under CAT. For example,
Rhonda Copelon specifically states that the ‘intent required under the inter-
national torture conventions is simply the general intent to do the act which
clearly or foreseeably causes terrible suffering.’28 In a more recent article, she
states that:
[T]he element of intent is not subjective but rather objective. The intent
required is general: that the person voluntarily engaged in conduct that
made severe pain or suffering objectively foreseeable, thereby distin-
guishing torture from accidents, disease, or consensual beneficial medical
treatment. The notion that the perpetrator must specifically intend to
torture was proposed by the United States and rejected in the drafting
of the Convention. It was then adopted by the U.S. Senate as a limiting
(4 July 2011)
26 Sahli v Algeria, Committee against Torture, Communication No 341/2008, UN Doc CAT/
C/46/D/341/2008 (4 July 2011) [9.3]
27 See for example: Dragan Dimitrijevic v Serbia and Montenegro, Committee against Torture,
Communication No 207/2002, UN Doc CAT/C/33/D/207/2002 (29 November 2004) and
Dimitrov v Serbia and Montenegro, Committee against Torture, Communication No 171/2000,
UN Doc CAT/C/34/D/171/2000 (23 May 2005).
interpretation for domestic purposes. But the Convention is not limited
in its application to sadists.29
Thus according to Copelon, pain or suffering is ‘intentionally inflicted’ under

CAT if it is a desired outcome, a certain outcome or a foreseeable outcome
(whether subjectively foreseeable or objectively foreseeable).
Further, while the approach of the International Criminal Tribunal for the
former Yugoslavia (ICTY) represents the international criminal law approach
(as opposed to the international human rights approach), the preeminent role
of CAT in establishing the law relating to torture has resulted in the ICTY con-
sidering the CAT definition and interpretation of torture. The ICTY has also
adopted a broad interpretation of the meaning of ‘intention’ in the context of
the definition of torture contained in article 1 of CAT. In the case of Prosecutor v
Kunarac, Kovač and Vuković,30 the Appeals Chamber considered the meaning of
‘intentionally’ in article 1 of CAT in the course of its discussion of the circum-
stances in which rape may constitute torture.31 The Appellants in this case sub-
mitted that they did not intentionally inflict pain or suffering as their aims were
purely sexual in nature.32 In rejecting this argument, the Appeals Chamber
interpreted the requirement that pain or suffering be intentionally inflicted as
including an objective component. It concluded that the rapes in question
constituted the intentional infliction of severe pain or suffering, stating that:
[E]ven if the perpetrator’s motivation is entirely sexual, it does not follow

that the perpetrator does not have the intent to commit an act of torture
or that his conduct does not cause severe pain or suffering, whether physi-
cal or mental, since such pain or suffering is a likely and logical consequence
of his conduct. In view of the definition, it is important to establish
whether a perpetrator intended to act in a way which, in the normal course
of events, would cause severe pain or suffering, whether physical or mental,
to his victims.33
Accordingly, pursuant to this decision of the ICTY, when determining

whether the element of ‘intention’ under article 1 of CAT is satisfied in a
given situation, one is not limited to considering the subjective state of mind
29 Rhonda Copelon, ‘Gender Violence as Torture: The Contribution of CAT General Comment No
2’ (2008) 11 New York City Law Review 229, 247 (citations omitted).
30 Case No IT-96-23 and IT-96-23/1-A (12 June 2002) (Judgment).
31 It should be noted that the Appeals Chamber specifically stated that the ‘definition of the crime
of torture, as set out in the Torture Convention, may be considered to reflect customary interna-
tional law.’ See: Prosecutor v Kunarac, Kovač and Vuković Case No IT-96-23 and IT-96-23/1-A (12
June 2002) (Judgment) [146].
32 Prosecutor v Kunarac, Kovač and Vuković Case No IT-96-23 and IT-96-23/1-A (12 June 2002)
(Judgment) [137].
33 Prosecutor v Kunarac, Kovač and Vuković Case No IT-96-23 and IT-96-23/1-A (12 June 2002)
(Judgment) [153] (emphasis added).
Intentionally 105
of the alleged perpetrator; one may take into account objective factors such as
whether pain or suffering is the ‘likely and logical consequence’ of the conduct
in question.
Therefore, while there is a dearth of clear, comprehensive and authoritative
statements regarding the meaning of ‘intentionally’ under article 1 of CAT,
it seems that ‘intentionally’ is to be interpreted broadly to include direct
intention, oblique intention and subjective foreseeability of pain or suffering.
Further, it seems that under CAT intention is interpreted more broadly than
under Australian domestic law so as to also include an objective standard in
relation to the foreseeability of pain or suffering, which under domestic law
falls within the province of negligence.
This extremely broad interpretation of the meaning of ‘intention’ is open
to a number of criticisms, a key one being that it is illogical to include an
objective component into the meaning of intention and at the same time to
interpret intention as excluding negligent conduct. Such an interpretation
may be viewed as illogical given that traditionally the primary distinction
between intention and negligence under domestic law rests on the distinction
between the subjective state of mind of the alleged perpetrator and the objec-
tive standard of the reasonable person. Of course, the meaning of intention
under article 1 of CAT does not have to fall within one of the domestic law
categories. However, given that scholars have expressed a general consensus
that intention under CAT excludes negligent conduct, an interpretation of
intention that is so broad as to render the concept of negligence devoid of
meaning seems somewhat inconsistent. After all, even if conduct is merely
‘careless’, pain or suffering may still be an objectively foreseeable consequence
of careless conduct. However, this criticism notwithstanding, in addition to
the views of scholars and the ICTY, the discussion here demonstrates that
the CAT Committee, which retains primary responsibility for interpreting
CAT, has clearly expressed the view that the meaning of ‘intent’ under CAT
includes an objective component.
The adoption of such a broad interpretation of the meaning of intention
pursuant to the article 1 definition of torture raises the question: does a broad
interpretation of the meaning of intention render the definition of torture too
wide? For example, according to this broad construction of the meaning of
intention, severely beating a person may constitute the intentional infliction
of severe pain or suffering on that person’s spouse given that it is foresee-
able that the person’s spouse will suffer on hearing about the beatings. It is
submitted that such a broad interpretation of the meaning of intention does
not excessively widen the definition of torture given that the other elements
of the article 1 definition of torture must still also be satisfied for conduct to
be categorised as torture. In any event, whether or not one agrees with this
broad interpretation of the meaning of intention, this broad construction
appears to be the prevailing view (although a more comprehensive and defini-
tive statement of interpretation by the CAT Committee would be a welcome
clarification).
Based on the approach set out here, it is argued that severe pain and suffer-
ing is a foreseeable consequence of both involuntary sterilisation and restric-
tions on abortion and that the ‘intention’ requirement is therefore satisfied
in both of these cases. Severe pain and suffering is a foreseeable consequence
of restricting access to abortion; for example, the documented incidents of
unsafe abortions in countries that restrict access to abortion services clearly
demonstrate the link between restricting access to abortion and severe pain
and suffering.34 It is therefore difficult to deny that such pain and suffer-
ing is a foreseeable consequence of restricting access to abortion. Similarly,
severe pain and suffering is a foreseeable consequence of sterilising a woman
without her full informed consent. For example, it is clear that sterilising a
woman without her informed consent amounts to a significant invasion of
her physical integrity and autonomy; the documented negative mental health
consequences of infertility also serve as clear indicators regarding the likely
negative outcomes of involuntary sterilisation.35 Therefore, both restric-
tions on abortion and involuntary sterilisation procedures may be viewed as
entailing the intentional infliction of severe pain and suffering.
3 Doctrine of double effect

It may be argued that the doctrine of double effect applies to negate the
proposition that restrictions on abortion constitute the intentional inflic-
tion of severe pain and suffering. According to The Stanford Encyclopedia of
Philosophy:
The doctrine (or principle) of double effect is often invoked to explain the
permissibility of an action that causes a serious harm, such as the death
of a human being, as a side effect of promoting some good end … [t]his
reasoning can be summarized with the claim that sometimes it is permis-
sible to bring about as a merely foreseen side effect a harmful event that
it would be impermissible to bring about intentionally.36
Jonathan Glover summarises the doctrine as follows: ‘[I]t may be permis-

sible to perform a good act with some foreseeable bad consequences, but it is
wrong to do a bad act for the sake of the good consequences that will follow.’37
This doctrine is loosely based on Kant’s direction to ‘act so that you treat
humanity, whether in your own person or in that of another, always as an end
34 Chapter 3 of this book engages in a more detailed discussion of the pain and suffering that may
result from legal restrictions on abortion.
35 Chapter 3 of this book engages in a more detailed discussion of the pain and suffering that may
result from involuntary sterilisation.
36 Alison McIntyre, ‘Doctrine of Double Effect’ in Edward N Zalta (ed), The Stanford Encyclopedia of
Philosophy (Spring 2009 ed) http://plato.stanford.edu/archives/fall2009/entries/double-effect/ at
19 April 2013.
Intentionally 107
and never as a means only.’38 A frequently cited example of the doctrine of
double effect is the example of a doctor performing the ‘good act’ of relieving
a terminally ill patient’s pain, which also has the negative effect of hastening
the patient’s death. The doctrine of double effect has itself been the subject
of much criticism. For example, Jonathan Glover identifies the difficulty of
distinguishing between deliberate and foreseen consequences and points out
the problems inherent in objectively defining what is a ‘good act’ and what
is a ‘bad act.’39
For example, if one were to invoke this argument to justify restrictions on
abortion one would probably argue that such restrictions constitute a ‘good
act’ because such restrictions act to protect the ‘unborn child’ and that the
potential negative health effects that women may endure as a consequence of
such restrictions are ‘foreseeable bad consequences’ or ‘a side effect of promot-
ing some good end.’ Contrariwise, one may take the view that the purpose of
regulations restricting access to abortion is not to protect the ‘unborn child’
but to compel a woman to carry a pregnancy to term and that such coercion
amounts to an act of violence against women.40 On this view, restricting
access to abortion clearly constitutes a ‘bad act.’ Accordingly, this doctrine is
extremely difficult to apply as whether an act is a ‘good act’ with some foresee-
able bad consequences or a ‘bad act’ involves an inherently subjective assess-
ment. Nonetheless, assuming the legitimacy of the doctrine, it is submitted
that it is not applicable in relation to restrictions on abortion or involuntary
sterilisation.
Even assuming that one regards protection of the ‘unborn child’ or protec-
tion of the woman41 as being the purpose of restricting access to abortion,
such restrictions nevertheless constitute a ‘bad act.’ Restrictions on abortion
constitute a ‘bad act’ because, irrespective of the motives informing such
laws, the act of preventing a woman from safely and legally terminating her
pregnancy amounts to a violation of her human rights.42 For example, restric-
tions on abortion constitute a violation of a woman’s procreative autonomy
and a form of discrimination against women. In this way, restricting access to
abortion violates women’s rights as the means to achieving a particular end.43
Consequently, restrictions on abortion constitute a ‘bad act’ and therefore do
not fall within the doctrine of double effect.
Ronald Dworkin discusses the fundamental right of procreative autonomy
38 Cited in: Judith Jarvis Thomson, ‘The Trolley Problem’ (1985) 94 Yale Law Journal 1395.
39 Jonathan Glover, Causing Death and Saving Lives (Penguin Books Ltd, London, 1977)
88–89.
40 Reva Siegel, ‘Reasoning from the Body: A Historical Perspective on Abortion Regulation and
Questions of Equal Protection’ (1992) 44 Stanford Law Review 261, 358–379.
41 A discussion of the notion of post-abortion syndrome is included in Chapter 3 of this book.
42 Chapter 1 of this book discusses the notion that restrictions on abortion violate a number of
established human rights.
Questions of Equal Protection’ (1992) 44 Stanford Law Review 261, 359.
in the context of United States constitutional law.44 In his view, ‘integrity
demands general recognition of the principle of procreative autonomy, and
therefore of the right of women to decide for themselves not only whether to
conceive but whether to bear a child.’45 In her article ‘A Defense of Abortion’,
Judith Jarvis Thomson bases her defence of abortion in part on the right to
procreative autonomy.46 It follows from this view that restrictions on abor-
tion constitute a violation of a woman’s procreative autonomy. In the United
States context, both Ruth Bader Ginsburg and Reva Siegel have taken this
argument one step further, maintaining that restrictions on abortion violate
both the right to autonomy and the principle of equality and both have
criticised the much discussed Supreme Court decision of Roe v Wade47 on the
ground that it focused on the right to autonomy to the exclusion of the right
to equality.48 According to Siegel, one of the hallmarks of patriarchy is the
restriction of women’s autonomy thus there is a clear connection between vio-
lations of women’s autonomy and discrimination against women.49 Similarly,
Rebecca J Cook has observed that ‘[t]he pursuit of women’s autonomy requires
their reproductive self-determination. Respect for human rights to reproduc-
tive self-determination requires the prohibition of all forms of discrimination
against women.’50
Restrictions on abortion violate women’s procreative autonomy by remov-
ing from a woman the choice to decide whether to continue a pregnancy to
term and by compelling a woman to have a child irrespective of her personal
wishes. In addition, restrictions on abortion constitute a form of discrimi-
nation against women in that they reinforce norms that deprive women of
their autonomy, prevent women from pursuing professional ambitions to
the same extent as their male counterparts and reaffirm stereotypical notions
of women’s role in society.51 Consequently, the act of legally preventing a
woman from terminating her pregnancy is itself a harmful act and not merely
a good act with some foreseeable harmful consequences and therefore cannot
be justified by invoking the doctrine of double effect.
This chapter has only discussed the doctrine of double effect as it pertains
to restrictions on abortion and not in the context of involuntary sterilisation.
44 Ronald Dworkin, Life’s Dominion (Alfred A Knopf, Inc, New York, 1993) 173.
45 Ronald Dworkin, Life’s Dominion (Alfred A Knopf, Inc, New York, 1993) 159.
46 Judith Jarvis Thomson, ‘A Defense of Abortion’ (1971) 1(1) Philosophy and Public Affairs 47.
47 410 US 113 (1973).
48 Ruth Bader Ginsburg, ‘Some Thoughts on Autonomy and Equality in Relation to Roe v Wade’
(1985) 63 North Carolina Law Review 375; Reva Siegel, ‘Reasoning from the Body: A Historical
Perspective on Abortion Regulation and Questions of Equal Protection’ (1992) 44 Stanford Law
Review 261.
49 Reva B Siegel, ‘Dignity and the Politics of Protection: Abortion Restrictions Under Casey/
Carhart’ (2008) 117 Yale Law Journal 1694.
50 Rebecca J Cook, ‘International Protection of Women’s Reproductive Rights’ (1992) 24 New
York University Journal of International Law and Politics 645, 726.
51 For a more in-depth discussion of restrictions on abortion as discrimination against women see:
Chapter 5 of this book.
Intentionally 109
In the context of involuntary sterilisation the doctrine is inapplicable given
that, on the face of it, the act of coercing a woman to submit to sterilisation
against her will cannot be categorised as a ‘good’ or even ‘indifferent’ act.
The doctrine of double effect requires the performing of a ‘good act’ (with
foreseeable ‘bad’ consequences); the performing of a ‘bad’ act with foreseeable
‘good’ consequences does not fall within the scope of the doctrine. Therefore,
even if involuntary sterilisation is performed for a worthwhile purpose, such
as population control in areas where there are inadequate resources to feed the
growing population, the evident moral difficulties with permanently depriv-
ing a woman of her procreative autonomy without her consent negate any
application of the doctrine of double effect.
4 Conclusion
The concept of intention is the subject of much debate in the domestic legal
and philosophical context. In the absence of a comprehensive exploration of
the meaning of intention in the international realm, this chapter has drawn
from the domestic legal context to illustrate the different characterisations of
intention that exist in the domestic realm in order to provide the framework
for a consideration of the meaning of intention under CAT. In the context
of the article 1 definition of torture, it seems that the requirement that
pain or suffering be intentionally inflicted is interpreted extremely broadly
and does not fit within any of the models established under domestic law.
Consequently, pursuant to the prevailing interpretation of article 1 of CAT,
pain or suffering will be intentionally inflicted where it is the desired out-
come, where it is certain to result from the conduct in question or where it is
foreseeable (either objectively or subjectively).
Therefore, in light of the fact that severe pain and suffering is a foreseeable
consequence of both restrictions on abortion and involuntary sterilisation
procedures, the article 1 requirement that pain or suffering be intentionally
inflicted is satisfied in this context. Proponents of restricting access to abor-
tion services may argue that the doctrine of double effect applies to negate the
proposition that the ‘intention’ requirement is satisfied in the case of restric-
tions on abortion. However, restricting a woman’s access to abortion can be
viewed as constituting a ‘bad act’; it is therefore not justifiable pursuant to the
doctrine of double effect.
5 Purpose: discrimination
or other person acting in an official capacity. It does not include pain
or suffering arising only from, inherent in or incidental to lawful
sanctions.1
1 Introduction
The definition of torture set out in article 1 of the United Nations Convention
against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment (CAT) requires not only that an act that causes severe pain or
suffering be intentionally inflicted on a person, but that such pain or suffer-
ing is inflicted for one of the enumerated purposes (or at least a comparable
purpose). These purposes include the extraction of information, punishment,
intimidation, ‘or for any reason based on discrimination of any kind.’2 This
chapter argues that restrictions on reproductive freedom frequently constitute
discrimination against women.
Broadly speaking, discrimination may be divided into two main catego-
ries: direct discrimination (also known as formal discrimination) and indirect
discrimination (also known as substantive discrimination). The Committee on
the Elimination of Discrimination against Women (CEDAW Committee)
has explained these two categories in the following way:
Purpose: discrimination 111
[D]irect discrimination against women constitutes different treatment
explicitly based on grounds of sex and gender differences. Indirect dis-
crimination against women occurs when a law, policy, programme or
practice appears to be neutral as it relates to men and women, but has
a discriminatory effect in practice on women, because pre-existing ine-
qualities are not addressed by the apparently neutral measure. Moreover,
indirect discrimination can exacerbate existing inequalities owing to a
failure to recognize structural and historical patterns of discrimination
and unequal power relationships between women and men.3
Often, in an attempt to eliminate discrimination, States prohibit conduct

that is directly discriminatory but fail to address adequately questions of
indirect discrimination, which are frequently far more complex. This is prob-
lematic because in order to achieve true equality, both direct and indirect
discrimination must be eliminated. Thus article 1 of the Convention on the
Elimination of All Forms of Discrimination against Women (CEDAW)4
defines ‘discrimination’ as:
[A]ny distinction, exclusion or restriction made on the basis of sex which

has the effect or purpose of impairing or nullifying the recognition,
enjoyment or exercise by women, irrespective of their marital status, on
a basis of equality of men and women, of human rights and fundamental
freedoms in the political, economic, social, cultural, civil or any other
field.
The CEDAW definition of discrimination includes both direct and indirect

discrimination; it includes behaviour that is purposefully discriminatory and
behaviour that has the effect of discriminating against women. Further, this
definition applies to all women regardless of marital status.5 Moreover, in
its General Recommendation on violence against women, the Committee
states that the ‘definition of discrimination includes gender-based violence,
that is, violence that is directed against a woman because she is a woman

the core obligations of States Parties under article 2 of the Convention on the Elimination of All Forms of
Discrimination against Women, UN Doc CEDAW/C/GC/28 (16 December 2010) [16].
4 Convention on the Elimination of All Forms of Discrimination against Women, opened for signature 18
December 1979, 1249 UNTS 13, art 1 (entered into force 3 September 1981).
5 Carmel Shalev, ‘Rights to Sexual and Reproductive Health’ (2000) 4(2) Health and Human Rights
39, 47. Rebecca J Cook and Susannah Howard note that the title of the treaty (Convention on
the Elimination of All Forms of Discrimination against Women) ‘underscores the obligation
of states not only to prohibit discrimination on grounds of sex, but also to eliminate all forms
of discrimination against women.’ They proceed to state that ‘“[a]ll forms of discrimination”
include stereotypes about women’s sex and physiology and those that are based on female
gender.’ See: Rebecca J Cook and Susannah Howard, ‘Accommodating Women’s Differences
Under the Women’s Anti-Discrimination Convention’ (2007) 56(4) Emory Law Journal 1039,
1043.
or that affects women disproportionately. It includes acts that inflict physi-
cal, mental or sexual harm or suffering.’6 Both restrictions on abortion and
involuntary sterilisation may be construed as falling within this definition of
discrimination.7
While CEDAW may be the primary international legal document that
enshrines the prohibition of discrimination against women, it is not the
only international source of the prohibition. For example, the Universal
Declaration of Human Rights as well as the two foundational human rights
treaties – the International Covenant on Civil and Political Rights (ICCPR)
and the International Covenant on Economic, Social and Cultural Rights
(ICESCR) – all contain articles prohibiting discrimination against women.8 It
has also been asserted that the prohibition of such discrimination is enshrined
in customary international law.9 Further, the view has been propounded
that human rights violations in general are often the product of ‘deep rooted
patterns of gender discrimination’ and that female specific concerns have
frequently been neglected in the international human rights realm.10 The
notion that international law is a gendered legal system is discussed in greater
detail in Chapter 1. This chapter focuses on the issue of discrimination and
argues that restrictions on abortion and involuntary sterilisation procedures
are frequently the product of deep-rooted patterns of discrimination against
women.11

Violence against Women, 11th sess, UN Doc A/47/38 (1992) [6]. However, it should be noted that
(as stated in Chapter 1) CEDAW’s limited recognition of oppression within the private sphere
and its contribution to women’s inequality is one illustration of international law’s public/pri-
vate divide. See: Hilary Charlesworth, ‘Whose Rule? Women and the International Rule of Law’
in Spencer Zifcak (ed), Globalisation and the Rule of Law (Routledge, New York, 2005) 83, 85.
7 Restrictions on abortion may be regarded as falling within this definition of discrimination
because both unsafe abortions (frequently a consequence of restrictions on abortion) and coerced
pregnancy/motherhood may be construed as a form of violence against women that is ‘directed
against a woman because she is a woman’ and that inflicts ‘physical, mental or sexual harm or suf-
fering.’ Involuntary sterilisation may be regarded as falling within this definition of discrimination
because this brutal invasion of bodily integrity may be construed as a form of violence that dispro-
portionately affects women and inflicts ‘physical, mental or sexual harm or suffering.’ See Chapter
3 for a more detailed discussion of the physical and mental pain and suffering that is frequently the
result of restricting access to abortion and performing involuntary sterilisation procedures.
UN Doc A/RES/810, art 2 (10 December 1948); International Covenant on Civil and Political
Rights, opened for signature 16 December 1966, 999 UNTS 171 art 2(1) (entered into force 23
March 1976); International Covenant on Economic, Social and Cultural Rights, opened for signature
16 December 1966, 993 UNTS 3 art 3 (entered into force 3 January 1976).
9 Ian Brownlie, State Responsibility (Oxford University Press, New York, 1983) 81.
10 Aart Hendriks, ‘The Right to Health: Promotion and Protection of Women’s Right to Sexual
and Reproductive Health under International Law: The Economic Covenant and the Women’s
Convention’ (1995) 44 The American University Law Review 1123, 1126.
11 It should be noted that both sex-based discrimination and gender-based discrimination are
prohibited under international law. For a discussion of the distinction between ‘sex’ and ‘gender’
in this context see: Rebecca J Cook, Bernard M Dickens, and Mahmoud F Fathalla, Reproductive
This chapter is divided into two parts. Part 1 discusses restrictions on
abortion as a form of discrimination against women. It is divided into four
sections: the first section considers the legal context of restrictions on abortion
and the second section considers the social context. Discussion then moves on
to an examination of the legislative purpose of restricting access to abortion
and the impact of such legislation. Part 2 discusses involuntary sterilisation
as a form of discrimination against women. It is divided into three sections:
the first section examines involuntary sterilisation as discrimination against
women and the second section considers other forms of discrimination appar-
ent within the feminist movement. The case studies of China, Peru and the
Czech Republic’s Roma population are then used to illustrate the points made
in the discussion.
2 Restrictions on abortion
International law has failed to construct a clear and unambiguous approach to
the issue of restrictions on access to abortion. Such restrictions have been con-
strued by various bodies and at various times as a violation of the right to life,
right to health and right to privacy.12 Yet there has been a lack of widespread,
in-depth discussion of restrictions on abortion as a violation of the right to be
free from discrimination. Nevertheless, a number of respected scholars, par-
ticularly from North America, have framed the right to abortion as an equal-
ity issue.13 This part therefore draws on much of their work to advance the
view that restrictions on abortion constitute discrimination against women.
In order to provide a framework for the argument that restrictions on abor-
tion constitute discrimination, this discussion devotes a section to placing
restrictions on abortion within the context of society’s existing inequalities
and discriminatory attitudes as well as the male-centric organisation of social
institutions. It must be acknowledged that not all societies are the same and
that some are clearly more egalitarian than others, yet the generalisations
remain relevant, particularly given that no society has completely eradicated
all forms of discrimination against women. It is the embedded nature of such
discrimination within the attitudes and organisation of society at large that
render it particularly insidious and that generally inform the rationale of
legislation restricting access to abortion, sometimes more subtly than others.
Further, not only do discriminatory attitudes towards women and male-centric
Health and Human Rights: Integrating Medicine, Ethics, and Law (Oxford University Press, Oxford,
2003) 198.
12 See discussion in section (a), which follows.
13 It should be noted that there is extensive academic discussion regarding the relationship between
the right to be free from discrimination and the right to equality. This technical discussion is
beyond the scope of this chapter. See for example: Timothy Macklem, Beyond Comparison: Sex and
Discrimination (Cambridge University Press, Cambridge, 2003) 1–4; Christopher McCrudden
(ed), Anti-Discrimination Law (Dartmouth Publishing Company Limited, Aldershot, 1991)
xvi–xviii.
viewpoints of society at large frequently form part of the policy behind restric-
tions on abortion, such restrictions serve to further entrench the subordination
of women. Thus the policy driving the drafting of legislation restricting access
to abortion often reflects discriminatory attitudes and the legislative impact
reinforces those attitudes and circumstances. Law and society interact in ways
that entrench and exacerbate discrimination against women.
It should be noted that while the focus of this chapter is on discrimina-
tion against women, restrictions on abortion may also reflect other forms
of discrimination, such as race-based discrimination and class-based dis-
crimination. For example, whereas wealthy women are often able to access
reasonably safe abortion services despite legal restrictions on abortion, des-
peration frequently leads poor women to resort to unsafe abortion services.14
Consequently, whereas the focus of this chapter is on discrimination against
women, it is useful to bear in mind the intersections between various forms of
discrimination in the reproductive rights context.
(a) Legal context

The international legal system has never expressly recognised a general
right to abortion.15 Nonetheless, such a general right has been alluded
to and a number of treaty bodies have found specific restrictions on abor-
tion to violate various treaty articles. Thus the right to abortion has been
conceptualised as part of the right to life,16 right to health17 and right to
14 Rebecca J Cook and Bernard M Dickens, ‘Human Rights Dynamics of Abortion Law Reform’
(2003) 25 Human Rights Quarterly 1, 38.
15 Christina Zampas and Jaime M Gher, ‘Abortion as a Human Right – International and Regional
Standards’ (2008) 8 Human Rights Law Review 249, 255.
16 See for example: Human Rights Committee, General Comment 28: Article 3 (Equality of Rights
between Men and Women), UN Doc CCPR/C/21/Rev.1/Add.10 (2000); Human Rights Committee,
Concluding Observations on Guatemala, 72nd sess, UN Doc CCPR/CO/72/GTM (27 August 2001)
[19]; Human Rights Committee, Concluding Observations on Mali, 77th sess, UN Doc CCPR/
CO/77/MLI (16 April 2003) [14]; Human Rights Committee, Concluding Observations on Mongolia,
68th sess, UN Doc CCPR/C/79/Add.120 (25 May 2000) [8(b)]; Human Rights Committee,
Concluding Observations on Peru, 70th sess, UN Doc CCPR/CO/70/PER (15 November 2000)
[20]; Committee on the Elimination of All Forms of Discrimination against Women, Concluding
Observations on Burindi, 24th sess, UN Doc A/56/38 (2 February 2001) [61]; Committee on the
Elimination of All Forms of Discrimination against Women, Concluding Observations on Mongolia,
24th sess, UN Doc A/56/38 (2 February 2001) [273]; Committee on the Elimination of All
Forms of Discrimination against Women, Concluding Observations on Myanmar, 22nd sess, UN Doc
A/55/38 (28 January 2000) [129]; Committee on the Elimination of All Forms of Discrimination
against Women, Concluding Observations on Nicaragua, 25th sess, UN Doc A/56/38 (31 July 2001)
[300][301]; Committee on the Elimination of All Forms of Discrimination against Women,
Concluding Observations on Romania, 23rd sess, UN Doc A/55/38 (23 June 2000) [314]; Committee
on the Rights of the Child, Concluding Observations on Colombia, 25th sess, UN Doc CRC/C/15/
Add.137 (16 October 2000) [48]; Committee on the Rights of the Child, Concluding Observations
on Guatemala, 27th sess, UN Doc CRC/C/15/Add.154 (9 July 2001) [40].
17 See for example: United Nations Population Division, Report of the International Conference on
Population and Development, UN Doc A/CONF.171/13 (18 October 1994) [8.25]; Human
privacy,18 even though a general right to abortion has not been explicitly rec-
ognised. The right to abortion has also been conceptualised as part of the right
to equality or, phrased differently, restrictions on abortion have been viewed
as a form of discrimination against women. The Committee on Economic,
Social and Cultural Rights unambiguously includes obstacles to the attain-
ment of reproductive health in its discussion of the elimination of discrimi-
nation against women in the implementation of the right to health. In a
thinly veiled reference to restrictions on abortion, the Committee states that:
To eliminate discrimination against women, there is a need to develop

and implement a comprehensive national strategy for promoting women’s
right to health throughout their life span. Such a strategy should include
interventions aimed at the prevention and treatment of diseases affecting
women, as well as policies to provide access to a full range of high quality
and affordable health care, including sexual and reproductive services. A major
goal should be reducing women’s health risks, particularly lowering rates
of maternal mortality and protecting women from domestic violence. The
realization of women’s right to health requires the removal of all barriers
interfering with access to health services, education and information, including
in the area of sexual and reproductive health.19
Further, in its General Recommendation on Women and Health the CEDAW

Committee states that:
It is discriminatory for a State party to refuse to provide legally for

the performance of certain reproductive health services for women. For
instance, if health service providers refuse to perform such services based
Rights Committee, Concluding Observations on Mali, 77th sess, UN Doc CCPR/CO/77/MLI

(16 April 2003) [14]; Human Rights Committee, Concluding Observations on Poland, 82nd sess,
UN Doc CCPR/CO/82/POL (2 December 2004) [8]; Committee on the Elimination of All
Forms of Discrimination against Women, Concluding Observations on Ireland, 33rd sess, UN
Doc CEDAW/A/60/38 (22 July 2005) [397]; Committee on the Elimination of All Forms of
Discrimination against Women, Concluding Observations on Andorra, 25th sess, UN Doc A/56/38
(31 July 2001) [48]; Committee on the Elimination of All Forms of Discrimination against
Women, Concluding Observations on Burkina Faso, 22nd sess, UN Doc A/55/38 (31 January
2000) [276]; Committee on the Elimination of All Forms of Discrimination against Women,
Concluding Observations on Cameroon, 23rd sess, UN Doc A/55/38 (26 June 2000) [60]; Committee
on the Elimination of All Forms of Discrimination against Women, Concluding Observations on
Chile, 36th sess, UN Doc CEDAW/C/CHI/CO/4 (25 August 2006) [19]; Committee on the
Elimination of All Forms of Discrimination against Women, Concluding Observations on Jordan,
22nd sess, UN Doc A/55/38 (27 January 2000) [181].
18 See for example: Llantoy Huamán v Peru, Human Rights Committee, Communication No
1153/2003, UN Doc CCPR/C/85/D/1153/2003 (22 November 2005). In the context of the
European regional system see for example: Tysiac v Poland (2007) Eur Court HR 5410/03; A, B
and C v Ireland (2010) Eur Court HR 25579/05.
19 Committee on Economic, Social and Cultural Rights, General Comment 14: The Right to the
Highest Attainable Standard of Health, UN Doc E/C.12/2000/4 (11 August 2000) [21].
on conscientious objection, measures should be introduced to ensure that
women are referred to alternative health providers.20
Thus in this General Recommendation the CEDAW Committee, without
expressly using the term ‘abortion’, expresses the view that restrictions on
abortion constitute discrimination against women. The view is reinforced
in a later paragraph of the same General Recommendation in which the
Committee asserts that:
States parties should not restrict women’s access to health services or
to the clinics that provide those services on the ground that women
do not have the authorization of husbands, partners, parents or health
authorities, because they are unmarried or because they are women. Other
barriers to women’s access to appropriate health care include laws that
criminalize medical procedures only needed by women and that punish
women who undergo those procedures.21
As Rebecca J Cook and Bernard M Dickens point out, ‘laws that criminalize
medical procedures only needed by women’ by definition include laws crimi-
nalising abortion.22 In addition, the CEDAW Committee has raised the issue
of abortion in a number of concluding observations.23
While there have been statements and decisions at both the international
and regional levels conceptualising restrictions on abortion as violating a
number of human rights, there have not been many decisions that discuss the
right to abortion in the context of the prohibition of discrimination. In the
landmark decision of Llantoy Huamán v Peru,24 the Human Rights Committee
(HRC) found that Peru had violated the prohibition of torture and CIDT but
dismissed the applicant’s claim that the State’s failure to provide her with
access to abortion services constituted a violation of article 3 of the ICCPR,
which enshrines the right to equality and non-discrimination.25 Nevertheless,
in the more recent decision of LMR v Argentina,26 the HRC found a violation
of article 3 (as well as articles 7 and 17) in circumstances in which Argentina
failed to provide a mentally impaired rape victim with timely access to

Women and Health, UN Doc A/54/38/Rev.1 (5 February 1999) [11].
Women and Health, UN Doc A/54/38/Rev.1 (5 February 1999) [14].
23 See for example: Committee on the Elimination of All Forms of Discrimination against Women,
Concluding Observations on Jamaica, 52nd sess, UN Doc CEDAW/C/JAM/CO/6-7 (27 July 2012)
[29].
(22 November 2005).
25 See Chapter 3 for discussion of the facts of this case.
(28 April 2011).
abortion. In contrast, the European Court of Human Rights (European Court)
has examined the issue of restrictions on abortion within the framework of
article 3 (right to be free from torture and CIDT) and article 8 (right to pri-
vacy) but has failed to consider this issue in the context of the article 14 right
to be free from discrimination even in its most recent decisions.27
In October 2011 the CEDAW Committee finally handed down a decision
that concluded that, in certain circumstances, restricting a woman’s access
to abortion may constitute discrimination against women. The case of LC v
Peru28 involved a teenager who had been sexually abused. She became preg-
nant as a result of the abuse and consequently jumped from a building in an
attempt to commit suicide. She survived the suicide attempt but sustained
serious injuries. The hospital declined to perform emergency surgery on the
basis that it posed a risk to the pregnancy and refused to perform an abortion
despite the fact that the pregnancy clearly posed a danger to LC’s physical and
mental health and that therapeutic abortion is legal in Peru. The CEDAW
Committee held that the hospital’s refusal to terminate the pregnancy and
to perform the necessary surgery in a time-effective manner constituted a
violation of the convention.
Thus it seems that the adoption of a discrimination-based approach to con-
ceptualising restrictions on abortion is slowly gaining some momentum at the
international level. In addition to the gradual recognition in the international
realm of restrictions on abortion as a violation of the right to be free from
discrimination, scholarly material has emerged out of domestic jurisdictions
(particularly North America) advocating for a discrimination-based approach
to restrictions on access to abortion services.29 Nonetheless, a discrimination-
based approach remains underdeveloped; thus Rebecca J Cook and Susannah
Howard observe that ‘an antidiscrimination theory that adequately addresses
the differences in women’s reproductive functions, and the differences in the
construction of women’s life choices arising out of those functions, has yet to
be developed.’30
27 See for example: Tysiac v Poland (2007) Eur Court HR 5410/03; A, B, and C v Ireland (2010) Eur
Court HR 25579/05; RR v Poland (2011) Eur Court HR 27617/04; P and S v Poland (2012) Eur
Court HR 57375/08.
28 Committee on the Elimination of Discrimination against Women, Communication No 22/2009,
UN Doc CEDAW/C/50/D/22/2009 (25 November 2011).
29 See for example: Ruth Bader Ginsburg, ‘Some Thoughts on Autonomy and Equality in Relation
to Roe v Wade’ (1985) 63 North Carolina Law Review 375; Reva Siegel, ‘Reasoning from the Body:
A Historical Perspective on Abortion Regulation and Questions of Equal Protection’ (1992) 44
Stanford Law Review 261. It should be noted that those who advocate an equality-/discrimination-
based approach to the issue of restrictions on abortion do not necessarily advocate such an approach
to the exclusion of a privacy-/autonomy-based approach. For an elaboration of the idea that both
of these approaches are in fact necessary in order to properly address both the individual and social
aspects of reproduction see: Rosalind Pollack Petchesky, Abortion and Woman’s Choice: The State,
Sexuality, and Reproductive Freedom (2nd ed, Northeastern University Press, Boston, 1990) 2.
30 Rebecca J Cook and Susannah Howard, ‘Accommodating Women’s Differences Under the
Women’s Anti-Discrimination Convention’ (2007) 56(4) Emory Law Journal 1039, 1040.
To date, the United States Supreme Court has adopted a predominantly
privacy-/autonomy-based approach to the issue.31 Critics of the conceptualisa-
tion of a right to abortion as constituting only a right to bodily integrity and
autonomy which forms a part of the right to privacy (to the exclusion of the
right to equality) principally focus on two factors: first, the notion that the
right to abortion must be placed in its social context and must not be seen as
merely an individual right existing in a social vacuum.32 Thus according to
Rosalind Pollack Petchesky, ‘the very nature of reproduction – is social and
individual at the same time.’ 33 The struggle for reproductive autonomy must
occur alongside the struggle for social equality. Second, the right to privacy
has for centuries been invoked as a justification for the State’s refusal to inter-
fere in matters of ‘private violence’ against women thereby reinforcing the
need to explode the private into the public sphere and to tear down illusory
boundaries.34 In fact, one of the primary feminist criticisms of international
law rests on the notion that it reinforces the public/private dichotomy.35
It is interesting to note that this criticism of a wholly privacy-/autonomy-
based approach to the issue was to some extent picked up by the Constitutional
Court of Colombia in its decision of May 2006, which liberalised Colombia’s
extremely restrictive abortion legislation.36 In this case, the Constitutional
Court invoked a number of international human rights, including the right to
life and right to health, as part of its explanation for why a statute criminalis-
ing abortion under all circumstances was unconstitutional. In addition, the
Court also invoked an equality-based approach, stating that:
[s]exual and reproductive rights also emerge from the recognition that
equality in general, gender equality in particular, and the emancipation
31 This was the approach originally adopted in the seminal case of Roe v Wade 410 US 113, 153
(1973) and it has, for the most part, been followed in subsequent cases.
32 See for example: Elizabeth Kingdom, ‘Legal Recognition of a Woman’s Right to Choose’ in Julia
Brophy and Carol Smart, Women in Law (Routledge, London, 1985).
34 See for example: Catharine MacKinnon, ‘The Male Ideology of Privacy: A Feminist Perspective
on the Right to Abortion’ (1983) 17 Radical America 23. The State’s traditional stance of non-
intervention in matters of domestic violence is one example of the way in which States have
traditionally used privacy discourse to avoid addressing problems of violence against women.
35 See discussion in Chapters 1 and 6.
36 Sentencia C-355 de 2006 Corte Constitucional. In this case the Constitutional Court struck
down the complete prohibition of abortion and decriminalised abortion in circumstances where:
there is a danger to the life or health of the woman; the foetus will not be viable outside the
uterus; or the pregnancy is the result of a criminal offence. See: Emilia Ordolis, ‘Lessons from
Colombia: Abortion, Equality, and Constitutional Choices’ (2008) 20(2) Canadian Journal of
Women and the Law 263; Verónica Undurraga and Rebecca J Cook, ‘Constitutional Incorporation
of International and Comparative Human Rights Law: The Colombian Constitutional Court
Decision C-355/2006’ in Susan H Williams (ed) Constituting Equality: Gender Equality and
Comparative Constitutional Law (Cambridge University Press, Cambridge, 2009) 215.
of women and girls are essential to society. Protecting sexual and repro-
ductive rights is a direct path to promoting the dignity of all human
beings and a step forward in humanity’s advancement towards social
justice.37
This application of an equality-based approach to the issue of abortion in a

national court is encouraging. Nevertheless, as Rebecca J Cook and Verónica
Undurraga point out, it did not go far enough. Despite invoking the language
of equality as part of its reasoning the Court ‘did not invoke the duty of the
state to eliminate all forms of discrimination against women, the right to
equal treatment of men and women, or the equal treatment of subgroups of
women.’38
(b) Social context

Men and women are biologically different. Women experience pregnancy;
men do not. Thus the capacity to gestate clearly distinguishes between the
sexes in physiological terms. If one adopts a ‘formal’ or ‘direct’ approach
to discrimination, this difference between the sexes provides a justification
for differential treatment. This is because, as mentioned already, direct dis-
crimination involves a comparison between two people who are similarly
situated and declares that when one of those people is treated less favourably
than the other, based on a specific characteristic (such as race or gender),
discrimination is established.39 Given that only women become pregnant, in
the context of discourses relating to reproduction, men and women are not
similarly situated. Therefore, there is no basis for comparing whether women
are treated less favourably than men and, consequently, direct discrimination
cannot be established.40 Ann Scales notes the irony of adopting a solely direct
or formal approach to discrimination in the context of reproduction when
she states that ‘no discrimination exists if pregnant women and pregnant
men are treated the same.’41 Catharine Mackinnon expands on this idea,
stating that ‘[c]omparatively few men are raped and no men are denied abor-
tions; gender comparisons are therefore unavailable or strained. So sexuality
37 Sentencia C-355 de 2006 Corte Constitucional [7].

38 Verónica Undurraga and Rebecca J Cook, ‘Constitutional Incorporation of International and
Comparative Human Rights Law: The Colombian Constitutional Court Decision C-355/2006’
in Susan H Williams (ed) Constituting Equality: Gender Equality and Comparative Constitutional
Law (Cambridge University Press, Cambridge, 2009) 215, 236.
39 Richard Townshend-Smith, Discrimination Law: Text, Cases and Materials (Cavendish Publishing
Limited, London, 1998) 140.
40 Catharine A MacKinnon, ‘Reflections on Sex Equality Under Law’ (1991) 100 Yale Law Journal
1281, 1286–1287. See also: Simone Cusack and Rebecca J Cook, ‘Combating Discrimination
Based on Sex and Gender’ in Catarina Krause and Martin Scheinin (eds), International Protection of
Human Rights: A Textbook (Institute for Human Rights, Åbo Akademi University, Turku, 2009)
205, 206.
41 Ann Scales, (1986) 95 Yale Law Journal 1373, 1399.
and procreation become happy differences or unhappy differences but never
imposed inequalities.’42
Gender equality cannot be achieved by way of a purely formal approach
to discrimination – ‘indirect’ discrimination must also be targeted for true,
substantive equality to be achieved.43 As mentioned earlier, determining the
existence of indirect discrimination requires an examination of whether a law
or policy, while neutral on its face and prima facie applicable to all (therefore
not directly discriminatory), nevertheless operates in a way that disadvantages
a particular group (such as women).44 When considered through the lens of an
indirect discrimination approach, restrictions on abortion clearly constitute
discrimination against women as only women become pregnant; therefore, only
women are directly affected by laws restricting abortion regardless of whether
such laws are formally phrased as targeting the population as a whole. In other
words, it stands to reason that a law that regulates a physiological function only
women perform is a discriminatory law; whether or not the discrimination
may in certain circumstances be justified is a different question. Yet it is not
solely the biological reality that only women become pregnant that renders
laws restricting access to abortion discriminatory in effect. The male-oriented
organisation of society has translated this biological or physiological distinc-
tion into a social distinction that has no physiological basis and this social
distinction for the most part constitutes discrimination against women.45
While women’s biology dictates that women must suffer the consequences
of unwanted pregnancies, it does not dictate that only women must bear the
consequences of unwanted pregnancies. Rather, the disproportionate impact
of unwanted pregnancies on women’s lives is a reflection of ‘biology mediated
by social and cultural organization.’46 Restrictions on access to abortion ser-
vices are reflective of stereotypes of women’s role in society.47 They reflect the
view that because biological reality dictates that women (and not men) bear
children, women are biologically predisposed towards the rearing of children.
1281, 1297.
43 Maja Kirilova Eriksson, Reproductive Freedom (Kluwer Law International, The Hague, 2000) 27.
44 Chris Ronalds and Rachel Pepper, Discrimination Law and Practice (2nd ed, Federation Press,
Sydney, 2004) 43.
45 See: Rebecca J Cook and Susannah Howard, ‘Accommodating Women’s Differences Under the
Women’s Anti-Discrimination Convention’ (2007) 56(4) Emory Law Journal 1039, 1040–1041.
For comment on the need for a contextual approach to discrimination against women as well
as the need for substantive equality between the sexes see: Committee on the Elimination of
Discrimination against Women, General Recommendation 25: On Article 4, Paragraph 1, of the
Convention on the Elimination of All Forms of Discrimination Against Women, on Temporary Special
Measures, 20th session, UN Doc A/59/38 (2004) [8]–[10].
47 For a discussion of sex role stereotypes generally see: Rebecca J Cook and Simone Cusack, Gender
Stereotyping: Transnational Legal Perspectives (University of Pennsylvania Press, Philadelphia,
2010) 28–29.
It is this leap from the factual observation that women bear children to the
socially constructed vision of women as homemakers and child rearers that
constitutes discrimination. As Zillah Eisenstein states:
[W]hen the pregnant body is conflated with the ‘idea’ of the mother, we
are left with the engendered meaning of sex ‘difference,’ which attrib-
utes the hierarchical opposition of ‘woman’ and ‘man’ to nature. To
recognize that sex and gender are interconnected and that differences
between women and men exist is not the same as to accept the engendered
definition of ‘woman’ and ‘man.’48
Restrictions on abortion reflect the ‘engendered definition of “woman”’

because they reflect the notion that a woman’s biological destiny is to be a
mother.49 Thus Rebecca J Cook and Simone Cusack observe that a ‘common
prescriptive stereotype of women is that they should be mothers. This stereo-
type may be used to justify denying them access to reproductive health infor-
mation and services so that they will be more liable to initiate and continue
pregnancies.’50 In order to analyse this idea further it is useful to consider the
other ways in which socially constructed definitions of gender contribute to
women’s inequality in society at large.
For example, the casting of women as passive and submissive contributes to
the normalisation of male sexual aggression against women;51 the stereotyping
of women as caregivers translates into a disproportionate number of women
working in ‘traditional’ female occupations such as childcare and nursing,
which are typically low status and low paid;52 the view of women as home-
makers contributes to the economic dependence of women on men, which, in
turn, contributes to the feminisation of poverty.53 In the context of reproduc-
tion, restricting access to abortion is only one illustration of the numerous
examples of social inequality between the sexes. As Catharine MacKinnon
48 Zillah R Eisenstein, The Female Body and the Law (University of California Press, Berkeley, 1988)
3.
1281, 1311. See also Rebecca J Cook and Susannah Howard, ‘Accommodating Women’s
Differences Under the Women’s Anti-Discrimination Convention’ (2007) 56(4) Emory Law
Journal 1039, 1044.
50 Rebecca J Cook and Simone Cusack, Gender Stereotyping: Transnational Legal Perspectives (University
of Pennsylvania Press, Philadelphia, 2010) 85 (citations omitted). See also Simone Cusack and
Rebecca J Cook, ‘Combating Discrimination Based on Sex and Gender’ in Catarina Krause and
Martin Scheinin (eds), International Protection of Human Rights: A Textbook (Institute for Human
Rights, Åbo Akademi University, Turku, 2009) 205, 222.
1281, 1302.
52 See for example: United Nations Platform for Action Committee, Women and Paid Work (2006)
Women and the Economy http://www.unpac.ca/economy/paidwork.html at 19 April 2013.
53 See for example: Dorothy McBride-Stetson, Women’s Rights in the USA (3rd ed, Routledge, New
York 2004) 380.
states, ‘reproduction is socially gendered’54 and ‘women, because of their sex,
are subjected to social inequality at each step in the process of procreation.’55
For example, women are coerced into sex to a far greater extent than men; it
is women who are shamed for engaging in sex or becoming pregnant at a time
society views as inappropriate; women and not men are expected to forego
their opportunities and aspirations to care for children.56 Similarly, Rebecca
J Cook and Simone Cusack provide the example of ‘discouraging the use of
artificial methods of contraception’ in Manila City to demonstrate the way in
which regulation may enforce ‘prescriptive sex role stereotypes of women as
primarily child bearers and caregivers.’57
As long as reproduction remains socially gendered, abortion must exist as
an option for women faced with the reality of an unwanted pregnancy given
that restrictions on abortion further entrench existing social inequalities. For
example, a woman who is forced to continue with an unwanted pregnancy
may as a consequence be forced into a lower paid job that is at least somewhat
compatible with her role as caregiver.58 As long as society fails to provide
adequate maternity leave and adequate childcare; as long as child rearing is
viewed as the role of the mother, the social context of reproduction will pre-
clude the implementation of laws restricting abortion that are free from any
semblance of discrimination. No change aimed at women alone is sufficient
to eradicate existing social inequalities – change must be aimed at society as
a whole such that men and women have the same opportunities to be active
parents and active members of the workforce; society must be structured such
that the care of children is properly valued and catered for.59
Catharine Mackinnon imagines a social context in which equality between
the sexes reigns and, by envisaging a different world, highlights the ine-
qualities that permeate this world and compel an assessment of regulations
restricting abortion as discriminatory:
1281, 1313.
1281, 1309.
1281, 1313. It should be noted that the CEDAW Committee has specifically stated that ‘[t]he
responsibilities that women have to bear and raise children affect their right of access to educa-
tion, employment, and other activities related to their personal development. They also impose
inequitable burdens of work on women.’ See: Committee on the Elimination of Discrimination
against Women, General Recommendation 21: Equality in Marriage and Family Relations, UN Doc
A/49/38 (4 February 1994) [21].
of Pennsylvania Press, Philadelphia, 2010) 55.
58 For a discussion of the reality that childcare responsibilities force women into lower paid and
lower status jobs see: Lucy Ward, ‘Childcare Locks Women into Lower-Paid Jobs’, The Guardian
(United Kingdom), 6 December 2007, 2.
I am told that sex equality is not a desirable approach to reproductive
control because it has a sunset built into it. Even if we had equality,
wouldn’t women still need abortions? If sex equality existed, there would
be no more forced sex; safe effective contraception would be available and
the psychological pressures surrounding its use would be gone; whatever
womanhood meant, women would need neither men nor intercourse nor
babies to prove it; abortions for sex selection as now practiced would be
unthinkable; the workplace would be organized with women as much in
mind as men; the care of children would be a priority for adults without
respect to gender; women would be able to support themselves and their
families (in whatever form) in dignity through the work they do. Now
imagine the woman who is pregnant without wanting to be.60
It is difficult to imagine a world without any unwanted pregnancies. Yet the

consequences of an unwanted pregnancy look very different in a vision of a
world in which there is full equality between the sexes; a world in which men
and women assume equal responsibility for child rearing, a world in which
social institutions, including places of employment, support women with
children. The social conditions of inequality that influence women’s repro-
ductive decisions are to a large extent produced by governmental policies and
practices. These social conditions of inequality manifest themselves in various
forms, including discrimination based on gender, race and class.61 While the
world continues to be one of inequality, the social context in which unwanted
pregnancies occur and in which the children resulting from those pregnancies
are raised precludes denial of the reality that restrictions on abortion serve to
support and further entrench existing inequalities. With this broader context
in mind, I now turn to consider the discriminatory motivation behind, and
impact of, laws restricting access to abortion.
(c) Legislative purpose

Broadly speaking, the expressed purpose of laws restricting access to abor-
tion is generally to protect the foetus.62 The argument is essentially that
foetuses have rights and that abortion violates those rights. The extent to
1281, 1326.
61 Nancy Ehrenreich, ‘Introduction’ in Nancy Ehrenreich (ed) The Reproductive Rights Reader (New
York University Press, New York, 2008) 1, 4.
62 See for example: the view of the Roman Catholic Church that life begins at conception and that
abortion therefore constitutes a violation of the right to life (of the foetus): Franciscus Card.
Seper and Hieronymus Hamer, Declaration on Procured Abortion (1974) The Holy See http://
www . vatican . va / roman _ curia / congregations / cfaith / documents / rc _ con _ cfaith _ doc _ 19741118 _
declaration-abortion_en.html at 19 April 2013; Rishona Fleishman, ‘The Battle Against
Reproductive Rights: The Impact of the Catholic Church on Abortion Law in Both International
and Domestic Arenas’ (2000) 14 Emory International Law Review 277, 279–283.
which the rights of the foetus will be viewed as trumping the rights of the
woman depends on the terms of the particular law in question. Where a foetal
rights approach forms the basis of a law restricting access to abortion, such an
approach may be challenged on a number of grounds. For example, even if one
assumes the foetus has rights, those rights should not trump the rights of the
woman because the woman is a person and the foetus does not obtain person-
hood until birth.63 However, these arguments are not based on the purpose of
the law but rather are based on the impact of the law in question – an issue
discussed in the section that follows. Thus where a foetal rights approach is
genuinely the sole rationale for laws restricting access to abortion, such laws
are not passed with a discriminatory purpose. Nevertheless, the truth of this
statement depends on the assumption that the purpose behind the legislation
is in fact foetal protection and that discriminatory ideas about women and
women’s roles play no part in the framing and implementation of such legisla-
tion. This is an unlikely scenario. As Reva Siegel states: ‘When a legislature
adopts regulation governing the conditions in which women conceive, ges-
tate, and nurture children, its actions are “realistically based upon” and thus
“realistically reflect[]” social judgments about women’s roles.’64 Similarly,
Rebecca J Cook and Susannah Howard observe that:
Restrictions on access to abortion are commonly defended as a necessary

means to protect the sanctity of human life and to preserve the sexual
morals of the community. These values and goals are often and intention-
ally articulated in sex and gender-neutral terms. A law will not be saved,
however, merely because it is expressed or defended in neutral terms.
Laws and policies that are based, even in part, on ‘the idea of [women’s]
… inferiority,’ or that reinforce women’s existing inequality in effect
violate the Women’s Anti-Discrimination Convention. Moreover, where
laws and policies are ‘based on the idea of … the superiority’ of men –
such as laws treating men with impunity for the unwanted pregnancies
they helped to cause – they can also be shown to violate states’ obligations
under the Convention.65
The issue of how to deal with a situation in which a number of purposes influence
the conduct in question was addressed by the International Criminal Tribunal
63 For a defence of abortion even assuming the personhood of the foetus see: Judith Jarvis Thomson,
‘A Defense of Abortion’ (1971) 1(1) Philosophy and Public Affairs 47. While this argument sup-
ports a woman’s right to choose despite an assumption of foetal personhood, the last sentence of
the article makes the point that ‘[a] very early abortion is surely not the killing of a person, and
so is not dealt with by anything I have said here.’
Women’s Anti-Discrimination Convention’ (2007) 56(4) Emory Law Journal 1039, 1048 (cita-
tions omitted).
for the former Yugoslavia (ICTY) in the case of Prosecutor v Kunarac, Kovač and
Vuković.66 In deciding that the rapes at issue constituted torture the ICTY
rejected the argument that they were perpetrated for the purpose of obtaining
sexual gratification and held that even if obtaining sexual gratification was one
of the purposes for which the rapes were committed, the prohibited purpose
required for a finding of torture need only be part of the motivation and need
not be the sole or predominant purpose.67 According to this view, even if pro-
tecting the foetus is a purpose for which laws restricting access to abortion are
passed, where such laws are also motivated by discrimination this will be suf-
ficient to satisfy the purpose requirement of the article 1 definition of torture.
There is evidence to suggest that laws restricting access to abortion, while
ostensibly created to protect the foetus, are also informed by stereotypes of
women as child bearers and child rearers – the ‘separate spheres’ ideology
continues to exercise its covert influence over the framing of laws that sig-
nificantly affect women’s lives.68 The stereotype of women as ‘self-sacrificing
caregivers’ influences the formation of laws that entrench this position.69 For
example, in 1990 a poll conducted in Louisiana found that 89% of those
surveyed favoured providing women with access to abortion where the preg-
nancy was the result of incest or rape but 79% of those surveyed opposed
abortion where it was sought on the basis that childbirth might interrupt the
woman’s career.70 Siegel states that ‘[t]he most widespread support for abor-
tion depended upon a judgment about the sexual relations in which unborn
life was conceived, and the most widespread opposition to abortion reflected a
judgment about women’s pursuit of career opportunities in conflict with the
maternal role.’71 In Australia, too, ‘[t]here is now a great deal of evidence that
public attitudes about whether abortion should be freely available to women
are influenced by attitudes about women’s role in the paid workforce; that is,
that public attitudes reveal a connection between women’s claims to equality
and reproductive decision-making.’72 Therefore, it seems unlikely that the
66 Case No IT-96-23 and IT-96-23/1-A (12 June 2002) (Judgment).

67 Clare McGlynn, ‘Rape, Torture and the European Convention on Human Rights’ (2009) 58
International and Comparative Law Quarterly 565, 582. See: Chapter 4 for a discussion of this case
in the context of determining the meaning of ‘intentionally’ in article 1 of CAT.
72 Regina Graycar and Jenny Morgan, The Hidden Gender of Law (2nd ed, The Federation Press,
Sydney, 2002) 210 citing Jonathan Kelley and MDR Evans, ‘Should Abortion be Legal?:
Australians’ Opinions and Their Sources in Ideology and Social Structure’ in Jonathan Kelley
and Clive Bean (eds), Australian Attitudes: Social and Political Analysis from the National Social
Sciences Survey (Allen & Unwin, Sydney, 1988) 10 and 16.
protection of the foetus is regularly the sole factor influencing the formulation
of laws restricting access to abortion.
Even where protection of the foetus is the reason for laws restricting access
to abortion, it is unlikely that such laws are passed free of stereotypical
assumptions as to women’s roles; ‘a legislature may not decide that it is rea-
sonable to save unborn life by compelling pregnancy, “but for” the archaic or
stereotypic assumptions about women it holds.’73 In other words, ‘the coercive
force of the state’ is required ‘to ensure that women behave in accordance with
the prevailing patriarchal social model’ rather than to ‘protect the unborn.’74
The fact that States that restrict women’s access to abortion generally fail to
provide practical support to help prevent unwanted pregnancies from occurring
in the first place and to assist such women when they become mothers serves to
bolster the argument that legislation restricting access to abortion rests on
discriminatory assumptions about women and does not only rest on concern for
the rights of the foetus. According to Catharine MacKinnon, ‘[i]f states wanted
to protect the fetus, rather than discriminate against women, they would help
the woman, not make her a criminal. The most effective route to protecting
the fetus – given illegal abortion, perhaps the only effective route – is support-
ing the woman.’75 If protection of the rights of the foetus were the sole motive
behind restrictions on abortion, one would expect States restricting access to
abortion to concomitantly provide widespread and affordable access to con-
traception free of stigma. If the protection of the foetus were the true rationale
for restricting women’s access to abortion, one would expect States to provide
comprehensive sex education in public schools. If concern for the foetus and
later the child were the sole motive behind restrictions on abortion, one would
presume that a State passing such laws would attempt to minimise the negative
effects of forced pregnancy on women. For example, one would expect that such
a State would adopt at least some measures to recognise the fact that State laws
compel the protection of the foetus at the expense of the woman. Such meas-
ures may include providing compensation to such women, protecting their
employment and educational opportunities and providing appropriate child-
care. Unsurprisingly, States that restrict access to abortion tend not to imple-
ment policies aimed at preventing unwanted pregnancies and that recognise
the sacrifice that compelling a woman to continue with an unwanted pregnancy
exacts of that woman. The view that women’s ‘lives can be subordinated to the
work of gestation and nurturance without consequence’ is a view that reflects
profoundly discriminatory assumptions about women’s roles.76
1281, 1320.
Questions of Equal Protection’ (1992) 44 Stanford Law Review 261, 366. See also: Rebecca J Cook
While the protection of the foetus remains the dominant expressed rationale
for laws that restrict access to abortion, more recently the argument has been
propagated that laws that restrict access to abortion are necessary to protect
women. Rebecca J Cook and Simone Cusack make the point that ‘[g]ender-
paternalistic stereotypes have enabled the development of the women-pro-
tective rationale for limiting access to therapeutic abortion.’77 According to
this rationale for restricting access to abortion, women who terminate their
pregnancies frequently do so without full knowledge of the consequences of
this decision and eventually suffer those consequences and regret the deci-
sion.78 The first part of this argument uses the language of informed consent
to put forward the view that many women do not truly understand the nature
and consequences of the abortion procedure when they decide to terminate a
pregnancy and that it is therefore in women’s best interests to limit access to
abortion. This depiction of women as ‘confused and coerced decision makers’ is
reminiscent of 19th-century depictions of the hysterical woman and feed into
paternalistic assumptions that law-makers, rather than individual women,
know what is best for women and that women are incapable of comprehending
all of the relevant information to reach a rational and independent decision.79
The second part of this argument draws on stereotypes about women’s nature
and women’s roles. It presumes that abortion is contrary to a woman’s instinct
to protect her child, contrary to a woman’s natural role as nurturer and car-
egiver, and results in serious negative health consequences for the woman.80
This argument perpetuates the stereotype of women as weak, vulnerable and
in need of protection.81 In fact, the discourse relating to ‘post-abortion syn-
drome’ discussed in Chapter 3 constitutes an integral component of this par-
ticular anti-abortion argument. Thus laws restricting access to abortion that
are based on the rationale that restrictions on abortion protect women are
based on stereotypes of women as incapable of making a rational, informed
decision as to the consequences of terminating versus continuing with an
unwanted pregnancy and are based on assumptions about women’s nature
and women’s roles. As such, laws based on this rationale are discriminatory
in their intent. As a final word on the issue of legislative purpose, it is useful
to note Catharine Mackinnon’s assertion that ‘intent can be inferred from
and Bernard M Dickens, ‘Human Rights Dynamics of Abortion Law Reform’ (2003) 25 Human
Rights Quarterly 1.
of Pennsylvania Press, Philadelphia, 2010) 85 (citation omitted).
78 Reva B Siegel, ‘The New Politics of Abortion: An Equality Analysis of Woman-Protective
Abortion Restrictions’ (2007) 3 University of Illinois Law Review 991, 1030. See also the majority
judgment in Gonzales v Carhart 127 S Ct 1610 (2007) 9 (discussed in Chapter 3).
Abortion Restrictions’ (2007) 3 University of Illinois Law Review 991, 1033–1036.
Abortion Restrictions’ (2007) 3 University of Illinois Law Review 991, 1038–1039.
81 Rebecca J Cook, ‘Structures of Discrimination’ (2011) 28 Macalester International Journal 33, 43.
impact’.82 The discussion that follows on legislative impact considers myriad
ways in which restrictions on abortion harm women. Given that these harms
are clearly foreseeable, it is difficult to argue that they are not intended.83
(d) Legislative impact

Restricting a woman’s access to abortion may negatively affect her in myriad
ways. From a health perspective, Chapter 3 has detailed the ways in which
restrictions on abortion may have a detrimental effect on women’s physical,
mental and emotional wellbeing.84 Given that the negative health impact of
restricting access to abortion is discussed elsewhere in this book, this section
will focus on the consequences of restricting access to abortion that do not
directly relate to health. These consequences include the coercing of women
into the role of mother, the relegation of women to the role of homemaker
and child rearer and the restriction of women’s educational and employment
opportunities. These consequences are clearly interconnected and all may in
turn have a negative impact on a woman’s health and wellbeing. Regina
Graycar and Jenny Morgan summarise these effects in the following statement:
Women are overwhelmingly allocated the responsibility of caring for

children after birth and ‘often do not control the circumstances in which
they rear children, because of poverty, inadequate housing, lack of day
care, and the structuring of the world of paid work on the assump-
tion that everyone in it – women included – has a life-cycle like the
male’s and the same freedom from child care responsibilities that has long
characterized male workers. That is, the social as well as the biological
implications of pregnancy and child-birth have overwhelmingly different
impacts on women and men.85
Coercing women into the role of mother has both social and biological effects;
it ‘instrumentalizes women as childbearers, violating both dignity as auton-
omy and equality values.’86 Coercing a woman to continue with a pregnancy
has the effect of coercing her to put certain strains on her body and take
certain risks with her physical health. It is clear that pregnancy may have a
1281, 1321.
83 For a more detailed elaboration of the argument that the State, in passing laws restricting access
to abortion, intends to cause the severe pain and suffering that may result from such restrictions,
see the discussion in Chapter 4.
84 This is discussed in the context of the argument that restrictions on abortion may cause ‘severe
pain or suffering.’
85 Regina Graycar and Jenny Morgan, The Hidden Gender of Law (2nd ed, Federation Press, Sydney,
2002) 210.
86 Reva B Siegel, ‘Dignity and the Politics of Protection: Abortion Restrictions Under Casey/
Carhart’ (2008) 117 Yale Law Journal 1694, 1759.
negative impact on a woman’s physical health and that childbirth may be
painful and, in extreme cases, may cause her death.87 From a social perspec-
tive, coercing a woman to continue with a pregnancy has the effect of coercing
her to become a mother. When women are compelled to bear children, they
are, in practice, compelled to raise those children given that many women
feel emotionally unable to ‘give up’ a child and given the social pressure on
women to raise the children they bear.88 Raising a child involves a significant
amount of work and it is mothers (not fathers) who are expected to carry
the bulk of the workload and to subordinate their interests to those of the
family.89 Further, the work of childcare is uncompensated, undervalued and
is frequently performed under conditions of economic dependency.90 Thus
Rebecca J Cook and Bernard M Dickens state that the ‘abortion-related dis-
crimination that women suffer on grounds of race, ethnicity, and, for instance,
age, illustrates the pervasive violation of the right to equality that creates the
subordinate status that many women occupy in their families, communities,
wider societies, and legal systems.’91
A direct consequence of compelling women to become mothers and to
engage in the work of motherhood is the socially imposed construction of a
woman’s role in society. Thus stereotypes about women’s nature and women’s
roles frequently form both part of the legislative purpose behind restrictions
on abortion and the legislative consequences of such restrictions. Women
are socially constructed as homemakers and child rearers and are in this way
deprived of the autonomy of constructing their own roles and choosing their
own life paths; they are reduced to their reproductive capacity and valued on
this basis.92 For women to be equal to men, women must have the same con-
trol over their own social roles as do men. An argument advocating a woman’s
right to abortion is not just an argument about abortion but is an argument
about a woman’s right to take responsibility for choosing her own future, in
the same way as men do.93 Reva Siegel eloquently articulates this notion in
the following statement:
87 For a discussion of the negative effects of pregnancy and childbirth see for example: Donald H
Regan, ‘Rewriting Roe v Wade’ (1979) 77 Michigan Law Review 1569, 1579–1582; Sylvia A Law,
‘Rethinking Sex and the Constitution’ (1984) 132 University of Pennsylvania Law Review 955,
1017. See also: Chapter 3 for a discussion of the pain of child birth.
93 Kenneth L Karst, ‘The Supreme Court 1976 Term: Foreword: Equal Citizenship Under the
Fourteenth Amendment’ (1977) 91(1) Harvard Law Review 1, 58.
Vesting women with control over whether and when to give birth breaks
with the customary assumption that women exist to care for others. It
recognizes women as self-governing agents who are competent to make
decisions for themselves and their families and have the prerogative to
determine when and how they will devote themselves to caring for others.
In a symbolic as well as a practical sense, then, reproductive rights repu-
diate customary assumptions about women’s agency and women’s roles.94
As well as promoting the social conceptualisation of a woman’s role as being

defined by her maternal status, restrictions on abortion also reinforce the
social demarcation of roles; woman’s role as homemaker and caregiver is fre-
quently constructed as incompatible with her role as a participating member
of the paid workforce. Most work places are not structured in a way that is
compatible with the needs and obligations of a woman who maintains sole or
primary child-rearing responsibilities. Consequently, while work places fail
to respond to the needs of such women and while governments fail to provide
adequate childcare facilities, abortion remains ‘a prerequisite for other choices
in women’s lives.’95 If women wish to participate in the paid workforce, in
jobs that differ from the low paid and low status jobs women traditionally
occupy, reproductive autonomy is essential. When conceptualised in this
way, it is clear that denying women access to abortion has a negative effect
on women’s professional lives and life opportunities (in a way in which men’s
lives are not affected) and for this reason constitutes discrimination.
Further, the impact of this discrimination on women’s professional lives
is merely a symptom of the larger impact of this discrimination on women’s
ability to contribute outside the home. It is representative of the effect of this
discrimination on women’s public face and voice and women’s capacity to
play a role in civil and political life. In other words, ‘the shape of the law on
gender-based classification and reproductive autonomy indicates and influ-
ences the opportunity women will have to participate as men’s full partners
in the nation’s social, political, and economic life.’96 When conceptualised
in this way, it is clear that restrictions on reproductive freedom reinforce the
reality, noted already in Chapter 1, that whereas both men’s and women’s civil
and political rights may be violated, women are disproportionately affected
by violations of economic, social and cultural rights.
Legal restrictions on access to abortion discriminate against women in
myriad ways. They are formulated and implemented in a social context in
94 Reva B Siegel, ‘Sex Equality Arguments for Reproductive Rights: Their Critical Basis and
Evolving Constitutional Expression’ (2007) 56 Emory Law Journal 815, 819.
95 Zillah R Eisenstein, The Female Body and the Law (University of California Press, Berkeley, 1988)
184.
96 Ruth Bader Ginsburg, ‘Some Thoughts on Autonomy and Equality in Relation to Roe v
Wade’ (1985) 63 North Carolina Law Review 375, 375. See also Robin West, ‘From Choice to
Reproductive Justice: De-Constitutionalizing Abortion Rights’ (2009) 118 Yale Law Journal
1394.
which gender inequality reigns; they are informed by this social context and
they serve to reinforce it. In the words of Catharine MacKinnon:
Such laws and practices are simply biased, their one-sidedness diagnos-
able from subordinate group disadvantage, provable from invidious social
meaning and damaging material consequences. Failure to see the state’s
hand in these examples would miss much of the way law insinuates itself
into social life, intruding on and structuring relations between the sexes,
institutionalizing male dominance.97
3 Involuntary sterilisation
Like abortion, the social context of involuntary sterilisation renders it a prac-
tice that generally discriminates against women. However, there are two
primary reasons why the argument that involuntary sterilisation constitutes
discrimination against women may not be immediately clear: first, both men
and women (as opposed to women only) may be the victims of involuntary
sterilisation. Thus it is important to understand that whereas both men and
women may be the victims of involuntary sterilisation, in reality, women
are disproportionately affected globally by this practice. Second, whereas an
unwanted pregnancy may be experienced by any woman, regardless of factors
such as race or class, middle-class white women living in Western liberal
democracies have generally not been the targets of involuntary sterilisation
programs. Thus it is important to understand that the failure of middle-class
white women to raise the issue of involuntary sterilisation in the context of
discrimination does not negate the argument that involuntary sterilisation as
practised globally generally constitutes discrimination against women. This
part of the chapter elaborates further on these factors and argues that for the
most part involuntary sterilisation, as it has been carried out thus far, consti-
tutes such discrimination. The circumstances surrounding the involuntary
sterilisation of Chinese women, Peruvian women and Roma women will be
used as case studies to illustrate the point.
As has been noted earlier, this book is not concerned with the sterilisation
of women with intellectual disabilities.98 The failure to address sterilisation
in such circumstances should not be construed as a dismissal of this impor-
tant issue that is of continued relevance today.99 However, the complexity of
arguments relating to capacity and ‘best interests’ render the consideration of
sterilisation in such circumstances beyond the scope of this book. Therefore,
1281, 1326.
98 See: Chapter 1. For a discussion of this issue see: Kristin Savell, ‘Sex and the Sacred: Sterilisation
and Bodily Integrity in English and Canadian Law’ (2004) 49 McGill Law Journal 1093,
1099–1100.
99 For example, in Australia in 2012 the Senate commenced an inquiry into the sterilisation of
people with disabilities.
this chapter focuses on the involuntary sterilisation of women who have the
capacity to consent, for purposes such as population control.
(a) Involuntary sterilisation as discrimination against women

As already mentioned, in theory, both men and women may be subjected to
involuntary sterilisation. However, in reality, women are disproportionately
affected by this practice. Women have been targeted for involuntary sterilisa-
tion in numerous countries and contexts. For example, in the United States
in the 20th century (as recently as the 1970s) African-American and Hispanic
women were subjected to involuntary sterilisation; in Puerto Rico from the
1950s to the 1970s a significant percentage of the female population was
subjected to involuntary sterilisation; in Peru as late as this century women
were targeted for involuntary sterilisation; in countries as diverse as Brazil,
China and Slovakia, concern continues to be expressed over the targeting of
women for involuntary sterilisation.100 Historically, it has not been difficult
for governments to propagate policies promoting involuntary sterilisation
procedures and these procedures have typically disproportionately affected
women who are already marginalised.
To demonstrate the point that involuntary sterilisation may be viewed as
a form of discrimination against women, it is useful to consider some of the
concluding observations of the various human rights treaty bodies. In its
1999 concluding observations on Peru, the Committee on the Elimination
of Racial Discrimination (CERD Committee) took note ‘of the allegations
of forced sterilization of women belonging to indigenous communities’101
and in its 2004 concluding observations on Slovakia, the CERD Committee
expressed concern ‘about reports of cases of sterilization of Roma women
without their full and informed consent.’102
100 See for example: Thomas M Shapiro, Population Control Politics: Women, Sterilization, and
Reproductive Choice (Temple University Press, Philadelphia, 1985); Stephen Trombley, The
Right to Reproduce: A History of Coercive Sterilization (George Weidenfeld & Nicolson Limited,
London, 1988); Sonia Corrêa, Population and Reproductive Rights: Feminist Perspectives from the
South (Zed Books Ltd, London, 1994) 30; Bartholomew Dean, Eliana Elías Valdeavellano,
Michelle McKinley and Rebekah Saul, ‘The Amazonian Peoples’ Resources Initiative:
Promoting Reproductive Rights and Community Development in the Peruvian Amazon’
(2000) 4(2) Health and Human Rights 219; Jocelyn E Getgen, ‘Untold Truths: The Exclusion
of Enforced Sterilizations from the Peruvian Truth Commission’s Final Report’ (2009) 29
Boston College Third World Law Journal 1; Richard Parker and Peter Aggleton (eds), Culture,
Society and Sexuality (2nd ed, Routledge, New York, 2007); Ying Chen, ‘China’s One-Child
Policy and Its Violations of Women’s and Children’s Rights’ (2009) 22 New York International
Law Review 1; Johanna E Bond, ‘Intersecting Identities and Human Rights: The Example of
Romani Women’s Reproductive Rights’ (2004) 5 Georgetown Journal of Gender and the Law
897.
101 Committee on the Elimination of Racial Discrimination, Concluding Observations on Peru, 54th
sess, UN Doc A/54/18 (1–19 March 1999) [155].
102 Committee on the Elimination of Racial Discrimination, Concluding Observations on Slovakia,
59th sess, UN Doc A/59/18 (23 February–12 March 2004) [389]; Betsy Hartmann, Reproductive
In its 1999 concluding observations on Japan, the Human Rights
Committee (HRC) referred to the ‘forced sterilization of disabled women’103
and in its 2001 concluding observations on Peru, the HRC asserted that
‘[r]ecent reports of forced sterilizations, particularly of indigenous women
in rural areas and women from the most vulnerable social sectors, are of
concern.’104 In addition, in its 2003 concluding observations on Slovakia, the
HRC expressed ‘concern at reports of forced or coerced sterilization of Roma
women.’105 Years later, in 2011, the HRC once again expressed concern
regarding the ‘lack of information on concrete measures to eliminate forced
sterilization’ of Roma women in Slovakia.106 Similarly, in its 2007 conclud-
ing observations on the Czech Republic the HRC noted its ‘concern that
Roma and other women have been subjected to sterilization without their
consent.’107
In its 2003 concluding observations on Brazil, the Committee on Economic,
Social and Cultural Rights (ICESCR Committee) expressed concern ‘about
the persistence of forced sterilization’108 and in its 2005 concluding observa-
tions on China, the ICESCR Committee was ‘deeply concerned about reports
of forced abortions and forced sterilizations imposed on women.’109 In its
2002 concluding observations on Peru, the CEDAW Committee noted with
concern that ‘mention is made of numerous cases of sterilization of women
without prior informed consent.’110 Similarly, in its 2004 concluding obser-
vations on the Czech Republic the Committee against Torture expressed
concern about ‘[a]llegations regarding some incidents of uninformed and
involuntary sterilizations of Roma women’111 and it has reiterated these
concerns in its 2012 concluding observations on the Czech Republic in
which it discussed ‘reports of sterilization of Roma women without free and
Rights and Wrongs: The Global Politics of Population Control (Revised ed, Harper & Row, New
York, 1995) 244, 246.
103 Human Rights Committee, Concluding Observations on Japan, 54th sess, UN Doc A/54/40 (21
October 1999) [173].
104 Human Rights Committee, Concluding Observations on Peru, 70th sess, UN Doc CCPR/CO/70/
PER (15 November 2000) [76].
105 Human Rights Committee, Concluding Observations on Slovakia, 58th sess, UN Doc A/58/40 (24
October 2003) [82].
SVK/CO/3 (20 April 2011) [13].
107 Human Rights Committee, Concluding Observations on the Czech Republic, 90th sess, UN Doc
CCPR/C/CZE/CO/2 (9 August 2007) [10].
108 Committee on Economic, Social and Cultural Rights, Concluding Observations on Brazil, 30th
sess, UN Doc E/2004/22 (5–23 May 2003) [134].
109 Committee on Economic, Social and Cultural Rights, Concluding Observations on China, 34th
sess, UN Doc E/2006/22 (25 April–13 May 2005) [165].
110 Committee on the Elimination of All Forms of Discrimination against Women,
Concluding Observations on Peru, 26th sess, UN Doc A/57/38 (14 January–1 February 2002)
[484].
Doc CAT/C/CR/32/2 (3 June 2004) [6(n)].
informed consent’.112 Further, in its 2006 concluding observations on Peru
the Committee against Torture expressed concern ‘at reports of women under-
going involuntary sterilization.’113
Five primary observations may be gleaned from an analysis of these con-
cluding observations. First, while it might be expected that the CEDAW
Committee, as the only committee whose task is specifically to focus on
matters of discrimination against women, would focus on instances of invol-
untary sterilisation of women, none of the other committees is predisposed
to focusing on women. Second, none of the numerous instances in which
the various committees express concern as regards the issue of involuntary
sterilisation concerns the sterilisation of men; in every instance, the commit-
tees’ concerns relate to the involuntary sterilisation of women. Third, in the
majority of instances, comments relate to the sterilisation of women who are
already marginalised, such as Roma women, indigenous women and women
with disabilities. Fourth, it is apparent that the involuntary sterilisation of
women is a global issue; it is not contained within one country or even one
continent. Fifth, involuntary sterilisation of women is not a relic of the past, it
remains a problem in this millennium. Finally, in addition to the concluding
observations, it should be noted that in the case of AS v Hungary114 involving
the sterilisation of a Hungarian Romani woman without her knowledge or
informed consent, the CEDAW Committee found that there was a violation
of CEDAW thereby confirming the Committee’s view that involuntary steri-
lisation may constitute a form of discrimination against women.
Betsy Hartmann poses the question: ‘Why are women’s bodies always
considered the prime locus of population control policies?’115 This is an
interesting question; logic and reason dictate that male sterilisation should
be far more prevalent than female sterilisation given that a vasectomy is a
much simpler operation (with fewer associated risks) as compared with any
form of female sterilisation.116 Thus it is interesting to consider not just the
fact of the discriminatory application of involuntary sterilisation procedures
but also the factors that influence such discrimination. Rebecca J Cook and
CAT/C/CZE/CO/4-5 (13 July 2012) [12].
PER/CO/4 (25 July 2006) [23].
114 Committee on the Elimination of Discrimination against Women, Communication No
4/2004, UN Doc A/61/38 (14 August 2006).
116 Maja Kirilova Eriksson, Reproductive Freedom (Kluwer Law International, The Hague, 2000)
256–257; Betsy Hartmann, Reproductive Rights and Wrongs: The Global Politics of Population
Control (Revised ed, Harper & Row, New York, 1995) 244. It should be noted that India’s
sterilisation campaign of the 1970s disproportionately affected men but that following inter-
national outrage the focus shifted to the sterilisation of women. See: Molly Moore, ‘Teeming
India Engulfed by Soaring Birthrate’ Washington Post (Washington DC), 21 August 1994, A1,
A32.
Simone Cusack make the point that sterilisation procedures are frequently
informed by the ‘[f]alse stereotype of women as incapable of making rational
decisions.’117 Betsy Hartmann notes in relation to barriers to women’s repro-
ductive control in general that ‘the issue goes far beyond the simple question
of contraception to involve power relationships at almost every social level,
from the family on up to the national government.’118 The manner in which
women have been targeted for involuntary sterilisation reflects existing power
structures and the inferior position which women continue to occupy in soci-
ety. Thus Paula Abrams observes that ‘women are the target of most popula-
tion programs because women have always been subject to extensive social
control.’119 Indeed, the power dynamics between the State and the individual
are significantly magnified when gender is factored into the equation. Not
only does the State exercise power over the individual in general, but the male
State, the State in which fundamental decisions are traditionally made by men
within a male-centric framework that entrenches women’s inferior position,
wields enormous power over the female citizen. Women’s bodies continue to
be objectified and viewed as the property of society as a whole. As Johanna
Bond comments:
Women’s bodies often serve as the site of bitter, violent struggles over
national identity. In many patriarchal societies, men strive to protect
and control women’s reproductive capacity, giving women’s reproduction
the normative value of a male property right. Women’s reproduction is,
therefore, not seen as a critical component of women’s human rights but,
rather, as the prerogative of men.120
In a society in which women’s bodies are deemed the property of another, is

it any wonder that sterilisation policies predominantly target women? If a
woman’s body belongs to the men in her life and the male paradigm of the
State, then it is logical that involuntary sterilisation procedures should be
carried out on women more than men, even though the medical procedure for
men is much simpler and safer than that for women. Thus when questioning
the reason for the discriminatory application of involuntary sterilisation pro-
cedures, it is necessary to place such procedures within the context of social
norms that continue to place women in a subordinate position to men.
117 Rebecca J Cook and Simone Cusack, Gender Stereotyping: Transnational Legal Perspectives
(University of Pennsylvania Press, Philadelphia, 2010) 85.
119 Paula Abrams, ‘Reservations About Women: Population Policy and Reproductive Rights’
(1996) 29 Cornell International Law Journal 1, 11.
120 Johanna E Bond, ‘Intersecting Identities and Human Rights: The Example of Romani
Women’s Reproductive Rights’ (2004) 5 Georgetown Journal of Gender and the Law 897, 906
(citations omitted).
(b) Discrimination within the feminist movement

In light of the discrimination inherent in the implementation of poli-
cies relating to involuntary sterilisation, and in light of the reality that such
discriminatory practice is rooted in discriminatory social norms and values,
it is somewhat surprising that feminism has failed to address this issue on
a widespread scale. This is particularly surprising when one considers the
vehemence with which some feminists have asserted the right of a woman
to choose to terminate a pregnancy. Thus the question emerges: why has
the focus of feminist thought and advocacy been on the right to abortion as
opposed to other violations of reproductive autonomy, such as involuntary
sterilisation?
bell hooks suggests that the feminist focus on abortion rights, as opposed
to reproductive rights in general, is reflective of the reality that the feminist
movement represents the concerns of white, privileged women. She uses
the campaign for women’s ‘right to work’ as an example of this reality. She
argues that poor women have always worked; that for many poor women
the right to be a housewife would be a form of emancipation from the long
hours of unfulfilling and unrewarding labour that they currently endure both
inside and outside the home. Yet for middle-class white women, the right
to work became a feminist slogan, thereby ignoring and disenfranchising the
many women who had no choice but to work in jobs whose conditions and
requirements they themselves would not withstand.121 Commenting on the
feminist approach to reproductive rights in the United States, hooks states
that:
In retrospect, it is evident that highlighting abortion rather than repro-

ductive rights as a whole reflected the class biases of the women who were
at the forefront of the movement. While the issue of abortion was and
remains relevant to all women, there were other reproductive issues that were
just as vital which needed attention and might have served to galvanize masses.
These issues ranged from basic sex education, prenatal care, preventive
health care that would help females understand how their bodies worked,
to forced sterilization, unnecessary cesareans and/or hysterectomies, and the
medical complications they left in their wake. Of all these issues individual
white women with class privilege identified most intimately with the pain of
unwanted pregnancy. And they highlighted the abortion issue. They were not
by any means the only group in need of access to safe, legal abortions. As
already stated, they were far more likely to have the means to acquire an
abortion than poor and working-class women. In those days poor women,
black women included, often sought illegal abortions. The right to have an
121 bell hooks, Ain’t I a Woman: Black Women and Feminism (South End Press, Boston, 1981)
145–150; bell hooks, Feminist Theory: From Margin to Center (2nd ed, Pluto Press, London,
2000) Chapter 7.
abortion was not a white woman’s only issue; it was simply not the only or even the
most important reproductive concern for masses of American women.122
To reiterate, abortion rights are clearly relevant to all women, including

poor women of colour. Angela Davis makes the point that in ‘New York, for
instance, during the several years preceding the decriminalisation of abor-
tions in that state, some 80 per cent of deaths caused by illegal abortions
involved Black and Puerto Rican women.’123 However, just as relevant to such
women as the right not to have a child was the right to have a child. Thus
Rebecca J Cook and Simone Cusack assert that the ‘false stereotype of women
as incapable of making rational decisions … can result in women being
sterilized without their consent, especially subgroups of women who are further
marginalized because of their ethnicity.’124 The Committee on the Elimination of
Racial Discrimination has made a similar point, asserting that ‘certain forms
of racial discrimination may be directed towards women specifically because
of their gender, such as … the coerced sterilization of indigenous women.’125
Accordingly, the focus of white women of privilege on the right to abortion
above other reproductive rights itself amounts to a form of discrimination
based on race and class.
Kimberle Crenshaw discusses the ‘intersectionality’ of different forms of
discrimination by invoking the example of a domestic violence shelter in New
York. The shelter refused to provide shelter to a Latina woman who spoke
minimal English on the basis that she would not be able to communicate
and would therefore feel isolated. In other words, the shelter, established
to provide refuge to battered women, refused to provide refuge to a woman
who was clearly terrified and in danger, on the basis that she lacked English
language proficiency. This is a shocking illustration of an institution estab-
lished to protect women’s interests that overtly excluded minority women of
non-English-speaking backgrounds.126 As Crenshaw states, ‘[w]hile gender,
race, and class intersect to create the particular context in which women
of color experience violence, certain choices made by “allies” can reproduce
intersectional subordination within the very resistance strategies designed to
respond to the problem.’127
122 bell hooks, Feminism is for Everybody (Pluto Press, London, 2000) 26 (emphasis added).
123 Angela Davis, ‘Racism, Birth Control and Reproductive Rights’ in Nancy Ehrenreich (ed) The
Reproductive Rights Reader (New York University Press, New York, 2008) 86, 86.
124 Rebecca J Cook and Simone Cusack, Gender Stereotyping: Transnational Legal Perspectives
(University of Pennsylvania Press, Philadelphia, 2010) 85 (emphasis added, citation omitted).
125 Committee on the Elimination of Racial Discrimination, General Recommendation 25: Gender
Related Dimensions of Racial Discrimination, UN Doc A/55/18, annex V (2000) [2].
126 Kimberle Crenshaw, ‘Mapping the Margins: Intersectionality, Identity Politics, and Violence
Against Women of Color’ (1991) 43 Stanford Law Review 1241, 1262.
127 Kimberle Crenshaw, ‘Mapping the Margins: Intersectionality, Identity Politics, and Violence
Against Women of Color’ (1991) 43 Stanford Law Review 1241, 1262–1265. See also: Kimberle
Crenshaw, ‘Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of
Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics’ (1989) University of
The focus of feminism on issues that concern ‘white women with class
privilege’ is not only a concern in the United States.128 In her discussion
of the Programme of Action of the International Conference on Population
and Development resulting from the 1994 United Nations conference held
in Cairo, Rosalind Pollack Petchesky raises this issue. She makes the point
that while the document goes a long way towards incorporating gender
concerns into the discussion of population and development, it fails to adopt
an approach that adequately incorporates the particular needs of women of
different races or ethnicities. The document fails to acknowledge that women
of different backgrounds, cultures, races and ethnicities may be the victims of
different types of discrimination, abuse or neglect. She states that:
The insertion of ‘women’ everywhere [in the document] and of racial and
ethnic groups almost nowhere suggests an image of ‘women’ as homoge-
nous and undifferentiated. In reality, ethnic minority women – especially
if they are poor – are often more susceptible to involuntary sterilisation,
reproductive tract infections, or lack of maternal health services than are
ethnic majority women in many societies. The Cairo document’s failure
to recognise the divisions among women by race, ethnicity and class,
along with age, thus reduces the complex meanings of reproductive and
sexual health and reproductive rights.129
When viewed from this perspective it is not surprising that, while women are
clearly disproportionately the victims of involuntary sterilisation, the femi-
nist campaign to secure women’s reproductive autonomy has (for the most
part) restricted its focus to the issue of abortion.130 Essentially, while fighting
against sex-based and gender-based discrimination the feminist movement
has come to predominantly represent the concerns of white women of privi-
lege and has thus internalised a way of thinking which at times reaffirms other
forms of discrimination, such as race-based and class-based discrimination.131
The three case studies used in the following section discuss the involuntary
Chicago Legal Forum 139. For a discussion of the ‘intersectionality’ of different forms of dis-
crimination in the context of the provision of government-funded obstetrics care in New York
see Khiara M Bridges, ‘Quasi-Colonial Bodies: An Analysis of the Reproductive Lives of Poor
Black and Racially Subjugated Women’ (2009) 18(2) Columbia Journal of Gender and Law 609.
128 bell hooks, Feminism is for Everybody (Pluto Press, London, 2000) 26 (emphasis added).
129 Rosalind Pollack Petchesky, ‘From Population Control to Reproductive Rights: Feminist Fault
Lines’ (1995) 6 Reproductive Health Matters 152, 158.
130 It should be noted, as already mentioned, that even though restrictions on abortion affect white
women of privilege, such restrictions also disproportionately affect poor women of colour. See
for example: Rebecca J Cook and Susannah Howard, ‘Accommodating Women’s Differences
Under the Women’s Anti-Discrimination Convention’ (2007) 56(4) Emory Law Journal 1039,
1062.
131 See bell hooks, Ain’t I a Woman: Black Women and Feminism (South End Press, Boston, 1981);
bell hooks, Feminist Theory: From Margin to Center (2nd ed, Pluto Press, London, 2000); Angela
P Harris, ‘Race and Essentialism in Feminist Legal Theory’ (1990) 42 Stanford Law Review 581.
sterilisation of Chinese, Peruvian and Romani women. None of these women
is adequately represented by a feminist movement that embodies the concerns
of white, middle-class women living in Western liberal democracies.
(c) Case studies
(i) China
China’s ‘one-child policy’ provides a useful example of a population control
policy that has targeted women for involuntary sterilisation. Since the 1970s
China has enforced a strict family planning policy that dictates, when couples
may marry, what types of contraceptive they may use and when they may have
a child. As the name suggests, the policy also restricts couples to one child
only.132 The policy is enforced by way of both a carrot and stick approach.
Those who enforce and/or abide by the policy are rewarded; rewards may
take the form of financial incentives and increased job opportunities. Those
who fail to abide by the policy are punished; punishment may take numerous
forms including financial ruin, damage to property, forced abortion, or forced
sterilisation.133 Forced abortions and involuntary sterilisation procedures are
central to the enforcement of the one-child policy.134 For example, in the
town of Linyi in the Shandong Province at least 7,000 families were sub-
jected to involuntary sterilisation between March 2005 and July 2005.135 In
its 2006 concluding observations on China the CEDAW Committee urged
China ‘to investigate and prosecute the reports of abuse and violence against
ethnic minority women by local family planning officials, including forced
sterilization and forced abortion.’136 Sterilisations are frequently conducted
in unsanitary conditions, particularly when sterilisation procedures are being
performed en masse to meet rigid quotas or deadlines. This obviously increases
the risk that infection or other medical complications will eventuate.137
132 Susan Tiefenbrun and Christie J Edwards, ‘Gendercide and the Cultural Context of Sex Trafficking
in China’ (2009) 32 Fordham International Law Journal 731, 757–760. It should be noted that there
are some exceptions to this policy, for example the policy is applied differently to couples living
in rural areas and ethnic minorities: Ying Chen, ‘China’s One Child Policy and its Violations of
Women’s and Children’s Rights’ (2009) 22 New York International Law Review 1, 5.
133 Xiaorong Li, ‘License to Coerce: Violence Against Women, State Responsibility, and Legal
Failures in China’s Family-Planning Program’ (1996) 8 Yale Journal of Law and Feminism 145,
153–155; Ying Chen, ‘China’s One Child Policy and its Violations of Women’s and Children’s
Rights’ (2009) 22 New York International Law Review 1, 58.
134 Ying Chen, ‘China’s One Child Policy and its Violations of Women’s and Children’s Rights’
(2009) 22 New York International Law Review 1, 61.
(2009) 22 New York International Law Review 1, 64–65.
136 Committee on the Elimination of All Forms of Discrimination against Women, Concluding
Observations on China, 36th sess, UN Doc CEDAW/C/CHN/CO/6 (7-25 August 2006) [32].
137 Xiaorong Li, ‘License to Coerce: Violence Against Women, State Responsibility, and Legal
Failures in China’s Family-Planning Program’ (1996) 8 Yale Journal of Law and Feminism 145,
171.
Women are disproportionately affected by the involuntary sterilisation
procedures that take place on a regular basis to implement the one-child
policy.138 Many women undergo a sterilisation procedure directly following
childbirth or an abortion procedure.139 The targeting of women for involun-
tary sterilisation may to some extent be explained by the cultural attribution
of birth control and family planning responsibility onto women140 as well
as the reality that women’s subordination is deeply ingrained in Chinese
culture.141 Further, Chinese men are notoriously reticent to undergo a vasec-
tomy.142 Data from one study indicate that, in the province of Jiangsu, the
rate of female sterilisation was approximately 9.4% whereas the rate of male
sterilisation was approximately 0.6%.143 Nationally, it seems that women
are in excess of three times more likely to undergo a sterilisation procedure
than men.144 In the year 2003, 2.10 million tubal ligation procedures were
performed as against approximately 300,000 vasectomies.145
There are countless numbers of women who tell stories of the horror of
being the victims of involuntary sterilisation. Wang Qin, a 34-year-old
woman from Linyi, became illegally pregnant and tried to hide. Her relatives
were arrested and she was found and forcibly sterilised.146 Huang Baofen,
another 34-year-old woman from Linyi, was forcibly sterilised after giving
birth to her second daughter; the sterilisation procedure resulted in serious
ed, Harper & Row, New York, 1995) Chapter 9.
139 See for example: Steven W Mosher, A Mother’s Ordeal: One Woman’s Fight Against China’s One-
Child Policy (Harcourt Brace & Company, New York, 1993).
141 Susan Tiefenbrun and Christie J Edwards, ‘Gendercide and the Cultural Context of Sex
Trafficking in China’ (2009) 32 Fordham International Law Journal 731, 734. The social system
is structured such that daughters cost their parents money and leave their families to live
with and care for their husbands’ families. In contrast, sons are financially rewarding and are
expected to support their elderly parents. The consequences of this cultural preference for sons
have been devastating to the female population of China. Consequences have included sex-
selective abortion, abandonment of female infants, infanticide and non-registration of children
at birth. It should be noted that changes have been made to the one-child policy in an attempt
to address the issue of son preference and its consequences: See: Susan Tiefenbrun and Christie J
Edwards, ‘Gendercide and the Cultural Context of Sex Trafficking in China’ (2009) 32 Fordham
International Law Journal 731, 772 (citations omitted).
142 Steven W Mosher, A Mother’s Ordeal: One Woman’s Fight Against China’s One-Child Policy
(Harcourt Brace & Company, New York, 1993) 57.
143 Karen Hardee, Zhenming Xie and Baochang Gu, ‘Family Planning and Women’s Lives in
Rural China’ (2003) 30(2) International Family Planning Perspectives 68.
York, 2002) 30–31; Betsy Hartmann, Reproductive Rights and Wrongs: The Global Politics of
Population Control (Revised ed, Harper & Row, New York, 1995) 164.
145 Data from the China Health Yearbook 2004 cited in Tyrene White, China’s Longest Campaign:
Birth Planning in the People’s Republic, 1949–2005 (Cornell University Press, Ithaca, 2006) 136.
injury to her.147 Sun Zhonghua, a 34-year-old woman from Xiapu County,
was beaten to death for refusing to be sterilised.148 Further, it should be noted
that in addition to involuntary sterilisation, forced abortion has also been a
mechanism used to enforce the State’s family planning policies.149 Finally, the
expressed guilt and remorse of a woman who enforced the one-child policy
encapsulates the horror: ‘What good is your regret? ... How does it help the
troubled and despairing women, now forever barren, whom you tortured,
aborted, and sterilized?’150
(ii) Peru
Between 1980 and 2000 Peru was overwhelmed by a state of intense internal
armed conflict. It is estimated that approximately 70,000 individuals died as a
result of this discord. According to the Truth and Reconciliation Commission
established in July 2001, those who suffered from poverty and social exclusion
were significantly more likely to become victims of the conflict. In fact, the
largest percentage of victims were indigenous peasants thus revealing ele-
ments of racial and class-based discrimination that underpinned the tension.
Nevertheless, despite the reality of internal armed conflict, between 1980 and
1992 a democratic regime was in power.151 In April 1992 a coup d’état began
the authoritarian rule of Alberto Fujimori, which ended only in November
2000 when Fujimori fled to Japan in a cloud of corruption. This period has
become notorious for the perpetration of government sponsored gross human
rights violations.152 It was during this period that the involuntary sterilisa-
tion of over 200,000 mostly indigenous rural women took place.153
As an integral component of his policy to eradicate poverty, Fujimori pre-
sided over the implementation of a family planning program that emphasised
149 See for example: Malcolm Moore, ‘A Forced Abortion for a Mother Who Failed to Sign a Form’
Daily Telegraph (London), 15 June 2012, 21.
150 Steven W Mosher, A Mother’s Ordeal: One Woman’s Fight Against China’s One-Child Policy
(Harcourt Brace & Company, New York, 1993) 322.
151 Truth and Reconciliation Commission of Peru, Final Report (August 2003).
152 Jocelyn E Getgen, ‘Untold Truths: The Exclusion of Enforced Sterilizations from the Peruvian
Truth Commission’s Final Report’ (2009) 29 Boston College Third World Law Journal 1, 9–15.
Truth Commission’s Final Report’ (2009) 29 Boston College Third World Law Journal 1, 33; J
Jaime Miranda and Alicia Ely Yamin, ‘Reproductive Health Without Rights in Peru’ (2004)
363 The Lancet 68, 68; Amnesty International, Peru: The Truth and Reconciliation Commission – A
First Step Towards a Country without Injustice (25 August 2004). It should be noted that there
is no universal consensus as to the number of women subjected to involuntary sterilisation in
Peru. See for example: Lara M Knudsen, Reproductive Rights in a Global Context (Vanderbilt
University Press, Nashville, 2006) 84.
the sterilisation of women particularly uneducated poor rural women.154
Women occupy a subordinate position in Peruvian society; the sterilisation
campaign’s targeting of women is a logical consequence of this culture of
male dominance.155 For example, women rarely retain control over their own
sexuality or fertility.156 Further, the campaign’s focus on poor rural women is
logical given that Peru’s feminist movement is for the most part centralised in
Lima and comprised of middle- to upper-class women.157 Thus the patriarchal
nature of Peruvian society provided the context for the implementation of a
sterilisation campaign that disproportionately affected women and the focus
of the Peruvian feminist movement on issues concerning urban women of
privilege allowed the practice to continue without powerful opposition.
Legal restrictions on sterilisation were lifted in September 1995 and the
number of sterilisations performed annually within Ministry of Health facili-
ties jumped from fewer than 15,000 prior to 1995 to approximately 67,000
in 1996 to approximately 115,000 in 1997.158 This significant increase in
sterilisations over such a short period of time resulted in a dearth of ade-
quately trained medical personnel, inappropriate medical facilities and clear
shortcomings in the informed consent process.159 Deficiencies in the informed
consent process were further exacerbated by the fact that health workers were
required to meet obligatory tubal ligation targets and were provided financial
incentives to exceed those targets.160 For example, information with respect
to non-permanent forms of contraception was deliberately withheld; women
were sterilised without their knowledge; women were sterilised without
154 Anna-Britt Coe, ‘From Anti-Natalist to Ultra-Conservative: Restricting Reproductive Choice

in Peru’ (2004) 12(24) Reproductive Health Matters 56; Center for Reproductive Rights,
Reproductive Rights in the Inter-American System for the Promotion and Protection of Human Rights
(October 2002) 16.
in Peru’ (2004) 12(24) Reproductive Health Matters 56, 59:
[M]en in Peru frequently exercise control over their female partners’ sexuality and fertility,
expecting to be provided with sex on demand and opposing their use of contraception or
barrier methods for infection prevention. Male control is reinforced through intimate partner
violence, which is commonplace. A recent prevalence study of gender-based violence found
that half of all women in Lima, and almost two-thirds of all women in Cusco department
reported having been physically and/or sexually abused by an intimate partner at least once
in their lifetime.

in Peru’ (2004) 12(24) Reproductive Health Matters 56, 59–61.
157 Lara M Knudsen, Reproductive Rights in a Global Context (Vanderbilt University Press, Nashville,
2006) 85.
in Peru’ (2004) 12(24) Reproductive Health Matters 56, 62.
160 Lara M Knudsen, Reproductive Rights in a Global Context (Vanderbilt University Press, Nashville,
2006) 82.
being told the consequences of sterilisation; women were bribed with food to
accept sterilisation; and other forms of pressure were applied to coerce women
into accepting sterilisation.161 Further, in an effort to increase the number
of people being sterilised, regular sterilisation ‘fairs’ became commonplace;
‘[t]hese fairs became notorious for coercive service delivery, substandard sur-
gical procedures, and a lack of postoperative supervision.’162
The case of María Mamérita Mestanza Chávez (Mestanza) provides an
illustration of the way in which the sterilisation policy affected one person.
Mestanza was a 33-year-old, low-income, illiterate rural woman with seven
children.163 In a petition lodged with the Inter-American Commission on
Human Rights on 15 June 1999, it was alleged that Peru violated Mestanza’s
human rights by forced sterilisation that ultimately caused her death.164 It
was alleged that Mestanza was coerced to undergo a tubal ligation and that
the serious health complications that she experienced following the surgery
were ignored resulting in her death within ten days of the surgery.165 It
should be noted that, in line with the subordinate position that women
occupy in Peruvian society, it was her partner and not Mestanza herself who
authorised the sterilisation procedure.166 On 26 August 2003 the parties
signed a Friendly Settlement in which Peru recognised that it had violated
Mestanza’s human rights; pledged to investigate and punish those responsible
for the violations; and agreed to provide various forms of compensation.167
(iii) Roma (Czech Republic)

Discrimination against Roma across Europe is widespread and dates back
generations. In the Czech Republic, such discrimination has taken many
forms. For example, in the case of DH and Ors v the Czech Republic,168 the
European Court found that the disproportionate number of Roma children
being placed in schools established to educate intellectually disabled children

in Peru’ (2004) 12(24) Reproductive Health Matters 56, 62; Lara M Knudsen, Reproductive Rights
in a Global Context (Vanderbilt University Press, Nashville, 2006) 82.
162 Bartholomew Dean et al, ‘The Amazonian Peoples’ Resources Initiative: Promoting
Reproductive Rights and Community Development in the Peruvian Amazon’ (2000) 4(2)
Health and Human Rights 219, 220.
Truth Commission’s Final Report’ (2009) 29 Boston College Third World Law Journal 1, 12.
164 María Mamérita Mestanza Chávez v Peru: Friendly Settlement [2003] Inter-Am Comm HR No
71/03 [1].
71/03 [11]– [12].
166 Center for Reproductive Rights, Reproductive Rights in the Inter-American System for the Promotion
and Protection of Human Rights (October 2002) 16.
71/03 [14].
168 (2007) Eur Court HR 57325/00.
constituted discrimination. Roma have also been discriminated against in the
Czech Republic as regards the allocation of State housing facilities; access to
employment and the perpetuation of stereotypes of Roma as violent crimi-
nals.169 Further, in the past decade there has been increased recognition of
the practice of involuntary sterilisation of Romani women. This practice is a
reflection of the social perception that Romani women bear too many children
who become a burden on society and that there is therefore a need to curb the
Roma birthrate.170
On 9 September 2004 the Public Defender of Rights (Ombudsman)
received a complaint from ten Romani women alleging that they had been
subjected to sterilisation without providing informed consent.171 The
Ombudsman proceeded to investigate the involuntary sterilisation of Romani
women and ultimately released a report on the matter.172 It is clear from this
report that the incidents of involuntary sterilisation that have taken place
in the Czech Republic have disproportionately affected Romani women.173
Romani women were specifically targeted for sterilisation when they came
into hospital to give birth and many unnecessary caesarean sections were
performed as a vehicle for performing the sterilisation procedures.174 Thus,
as with the case study of Peru, this case study provides an example of both
discrimination against women and discrimination on the basis of race.175
The complex nature of the discrimination is reflected in the fact that both
the CEDAW Committee and the CERD Committee have expressed concern
169 League of Human Rights (Czech Republic), Shadow Report to the Human Rights Committee: The
Czech Republic (10 June 2007) 44–55.
Czech Republic (10 June 2007) 8. In addition to constituting discrimination, Rebecca J Cook
and Simone Cusack state that ‘[t]here is also a form of degrading treatment when a doctor
sterilizes a woman without her free and informed consent, because he or she stereotyped the
patient as an irresponsible and excessive child bearer by virtue of her status as a Roma woman.’
See Rebecca J Cook and Simone Cusack, Gender Stereotyping: Transnational Legal Perspectives
(University of Pennsylvania Press, Philadelphia, 2010) 64 (citation omitted).
171 Otakar Motejl, Public Defender of Rights, Final Statement of the Public Defender of Rights in the
Matter of Sterilisations Performed in Contravention of the Law and Proposed Remedial Measures (23
December 2005) 1.
December 2005).
December 2005).
December 2005).
175 Claude Cahn, ‘Groundbreaking Report by Czech Ombudsman Recognises “Problem” of
Coercive Sterilisation and Calls for Far-Reaching Changes to Law, Policy and Society’ (2006)
1 Roma Rights Quarterly 69, 70; Johanna E Bond, ‘Intersecting Identities and Human Rights:
The Example of Romani Women’s Reproductive Rights’ (2004) 5 Georgetown Journal of Gender
and the Law 897, 905.
with respect to the involuntary sterilisation of Romani women.176 As Johanna
Bond has commented, the ‘racial and gender discrimination faced by Romani
women is mutually reinforcing and inextricably intertwined’; it is a form of
discrimination that ‘weaves together racism and sexism resulting in an inter-
sectional bias that is more entrenched and complicated than merely the sum
of racism plus sexism.’177
According to the Ombudsman’s report, the sterilisation of Romani women
is not a recent phenomenon. As early as 1978 the involuntary sterilisation of
Romani women was part of official State policy and in 1988 the government
began providing financial incentives for women to submit to sterilisation;
given the correlation between poverty and the Roma population, the foresee-
able and actual consequences of this policy was the disproportionate sterilisa-
tion of Romani women.178 Those instrumental in carrying out these abuses
include the medical personnel who performed the procedures without obtain-
ing proper informed consent as well as the social workers who ‘persuaded’
women to submit to the procedures.179 From the 1990s onwards the sterilisa-
tion of Romani women no longer formed part of official government policy
but there is ample evidence that numerous Romani women were subjected
to involuntary sterilisation during the 1990s and into this millennium.180
Thus in its 2012 concluding observations on the Czech Republic the CAT
176 See for example: AS v Hungary, Committee on the Elimination of Discrimination against
Women, Communication No 4/2004, UN Doc A/61/38 (14 August 2006); Committee on the
Elimination of Racial Discrimination, Concluding Observations on the Czech Republic, 70th sess,
UN Doc CERD/C/CZE/CO/7 (19 February–9 March 2007) [14].
177 Johanna E Bond, ‘Intersecting Identities and Human Rights: The Example of Romani Women’s
Reproductive Rights’ (2004) 5 Georgetown Journal of Gender and the Law 897, 906–909.
December 2005) 25-27.
December 2005) 43.
180 Committee on the Elimination of Racial Discrimination, Concluding Observations on the Czech
Republic, 70th sess, UN Doc CERD/C/CZE/CO/7 (19 February–9 March 2007) [14]; League
of Human Rights (Czech Republic) Shadow Report to the Human Rights Committee: The Czech
Republic (10 June 2007) 8, 9:
the cases documented include:
• cases in which consent had not been provided at all, in either oral or written form, prior to
the operation
• cases in which consent was secured during delivery or shortly before delivery, during
advanced stages of labour, i.e., in circumstances in which the mother is in great pain and/
or under intense stress
• cases in which consent appears to have been provided (i) based on a mistaken understanding
of terminology used, (ii) after the provision of apparently manipulative information and/
or (iii) absent explanations of consequences and/or possible side effects of sterilization, or
adequate information on alternative methods of contraception
• cases in which officials put pressure on Romani women to undergo sterilization, including
through the use of financial incentives or threats to withhold social benefits.
Committee expressed concern ‘about reports of sterilization of Roma women
without free and informed consent, the destruction of medical records on
involuntary sterilizations and the difficulties of victims to obtain redress.’181
One example is the case of Helena Ferenčiková. On 10 October 2001 Helena
gave birth to her second child in the Vitkovice hospital in the city of Ostrava
by way of caesarean section and was sterilised by tubal ligation at the same
time. The so-called ‘consent’ to the tubal ligation was secured by doctors min-
utes prior to the operation, when Helena was already suffering from intense
labour pains.182 Another example is the case of a mother of four from a socially
disadvantaged background in Frýdek-Mistek. In 2007 she was coerced by a
social worker to submit to sterilisation after the social worker threatened to
take her children into institutional care.183
The case studies in this part demonstrate the wider point that the practice
of involuntary sterilisation disproportionately affects women and further, that
it disproportionately affects poor minority women. Consequently, involuntary
sterilisation frequently constitutes discrimination against women and tends
also to constitute other forms of discrimination such as race- and class-based
discrimination. Accordingly, it is frequently a manifestation of multiple/
intersectional discrimination.
4 Conclusion
The definition of torture contained in article 1 of CAT requires that severe
pain or suffering be intentionally inflicted for a particular purpose. One of
those purposes is ‘for any reason based on discrimination of any kind.’ Thus
discrimination against women is a prohibited purpose under the CAT defini-
tion of torture. This chapter has argued that both restrictions on abortion and
involuntary sterilisation may constitute such discrimination. Further, the
discrimination that is frequently inherent in both of these forms of restric-
tions on women’s reproductive freedom is to a large extent based on socially
constructed assumptions about women’s nature and women’s role in society.
The social context surrounding discrimination against women with respect to
both restrictions on abortion and involuntary sterilisation place these issues
squarely within the public (as opposed to private) realm. This issue of the
public nature of such restrictions on women’s reproductive freedom will be
discussed in greater detail in the next chapter.
CAT/C/CZE/CO/4-5 13 July 2012) [12].
Czech Republic (10 June 2007) 12; Claude Cahn, ‘Groundbreaking Report by Czech Ombudsman
Recognises “Problem” of Coercive Sterilisation and Calls for Far-Reaching Changes to Law,
Policy and Society’ (2006) 1 Roma Rights Quarterly 69, 72–73.
183 Elena Gorolova, ‘Elena Gorolova’s Voice’ (Speech delivered at the Durban Review Conference,
Geneva, 21 April 2009); ROMEA, Women Harmed by Forced Sterilization (2009) http://lolodiklo.
blogspot.com/2009/07/ women-harmed-by-forced-sterilization.html at 19 April 2013.
6 Public official
coercing him or a third person, or for any reason based on discrimi-
nation of any kind, when such pain or suffering is inflicted by or at the
instigation of or with the consent or acquiescence of a public official or other
person acting in an official capacity. It does not include pain or suffering
arising only from, inherent in or incidental to lawful sanctions.1
1 Introduction
The definition of torture contained in article 1 of the Convention against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
(CAT) specifically requires that the ‘pain or suffering’ in question ‘is inflicted
by or at the instigation of or with the consent or acquiescence of a public
official or other person acting in an official capacity.’2 The original draft of
the Convention prohibited pain or suffering ‘inflicted by or at the instiga-
tion of a public official.’3 The concept of ‘acquiescence’ was subsequently
introduced to clarify that, in addition to refraining from engaging in acts of
torture, a public official also has a duty to prevent acts of torture.4 Further,
the inclusion of ‘persons acting in an official capacity’ was included to clarify
3 Draft International Convention against Torture and other Cruel, Inhuman or Degrading
Treatment or Punishment, 18 January 1978, UN Doc E/CN.4/1285.
4 Question of the Human Rights of All Persons Subjected to Any Form of Detention or
Imprisonment, In Particular: Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment: Summary Prepared by the Secretary-General in Accordance with Commission
Resolution 18 (XXXIV), 19 December 1978, UN Doc E/CN.4/1314.
that the Convention applies to people in both de jure and de facto positions of
authority within the State.5 During the drafting of the Convention there was
some debate regarding whether the definition of torture should be limited to
‘public officials’ or whether it should extend to include private individuals
within the jurisdiction of the relevant State. Ultimately, a compromise was
struck that resulted in the language of the current definition of torture.6 In
light of the fact that the formulation of the public official requirement reflects
a compromise position, the wording in article 1 is lacking in precision.
Thus it is necessary to consider the discourse that has developed following
the drafting of CAT to determine the circumstances in which this require-
ment is met.7 There has been little debate as to the meaning of ‘inflicted by
or at the instigation of a public official or other person acting in an official
capacity.’ It seems that these terms are fairly self-explanatory. However, the
phrase ‘consent or acquiescence of a public official’ has been interpreted in an
increasingly broad manner. This chapter demonstrates that the international
human rights regime has embraced an approach to State responsibility that
includes both direct and indirect State responsibility and that the Committee
against Torture (CAT Committee) has followed this trend by adopting a
broad interpretation of the ‘public official’ requirement.8
This chapter is divided into two parts. Part 1 addresses the issue of direct
State responsibility and argues that legal restrictions on abortion and invol-
untary sterilisation procedures performed in public hospitals meet the ‘public
official’ requirement. In both of these circumstances there is a direct link
between the State and the pain and suffering experienced. In the case of
restrictions on abortion, the link with the State is the law itself and in the
5 Question of the Human Rights of All Persons Subjected to Any Form of Detention or
Imprisonment, In Particular: Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment: Summary Prepared by the Secretary-General in Accordance with Commission
Resolution 18 (XXXIV), 19 December 1978, UN Doc E/CN.4/1314.
6 Report of the Working Group on a Draft Convention against Torture and other Cruel, Inhuman
or Degrading Treatment or Punishment, 11 March 1979, UN Doc E/CN.4/L.1470.
7 It should be noted that the ‘public official’ requirement is also a prerequisite for the establish-
ment of conduct constituting cruel, inhuman or degrading treatment. Article 16(1) of CAT
states that:
Each State Party shall undertake to prevent in any territory under its jurisdiction other acts
of cruel, inhuman or degrading treatment or punishment which do not amount to torture
as defined in article 1, when such acts are committed by or at the instigation of or with the
consent or acquiescence of a public official or other person acting in an official capacity.
Therefore, this chapter draws on the interpretation of this requirement stemming from the
discourse relating to both torture and other cruel, inhuman or degrading treatment.
See: Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,
opened for signature 10 December 1984, 1465 UNTS 85, art 16 (entered into force 26 June
1987).
8 For a discussion of the notion of ‘State responsibility’ from a feminist perspective see: Rebecca J
Cook, ‘State Responsibility for Violations of Women’s Human Rights’ (1994) 7 Harvard Human
Rights Journal 125.
Public official 149
case of involuntary sterilisation, the link with the State is that the procedure
is performed in a public hospital or by State-employed medical personnel.
The questions become more difficult when the link with the State is less
direct. This is relevant in the context of involuntary sterilisation procedures
performed in the private sphere. Part 2 addresses the issue of indirect State
responsibility and thus examines whether, and if so in what circumstances, a
State can be held responsible for the conduct of private actors. It is not neces-
sary to consider the conduct of private actors in the context of restrictions on
abortion. This is because the consequences of restrictions on abortion are: 1)
a pregnant woman is forced to continue with an unwanted pregnancy; or 2) a
pregnant woman feels compelled to endure an unsafe, illegal abortion. Even
when considering whether the State may be held responsible for the conse-
quences of unsafe abortions performed by private actors, such unsafe abortions
are directly referential to the State restricting access to abortion.9 Of course,
an abortion may be unsafe even where it is legal, for example in circumstances
in which the procedure is performed in an unhygienic environment or by a
person lacking the appropriate qualifications, in which case the issue of State
responsibility for the conduct of private actors may arise. Such contexts are,
however, beyond the scope of this book, which is confined to a consideration
of legal restrictions on access to abortion. That said, the analysis relating to
indirect State responsibility discussed here would be relevant.
2 Direct state responsibility

Chapter 3 outlined the pain and suffering that may be caused by both restric-
tions on abortion and involuntary sterilisation procedures. It discussed the
reality that the restrictive regulation of abortion frequently causes mental
pain and suffering to a woman who is denied the choice to terminate her preg-
nancy and consequently is forced to continue with an unwanted pregnancy. It
also discussed the fact that restrictive regulation of abortion leads to the per-
forming of illegal, unsafe abortions that frequently result in tremendous pain
and suffering. Further, that same chapter considered the pain and suffering
that may result from involuntary sterilisation. The question to be examined
in this chapter is whether the infliction of such pain and suffering can be
imputed to the State.
9 According to the World Health Organization, the ‘incidence of unsafe abortion is influenced
by the legal provisions governing access to safe abortion, as well as the availability and quality
of legal abortion services. Restrictive legislation is associated with a high incidence of unsafe abortion’:
World Health Organization, Unsafe Abortion: Global and Regional Estimates of Incidence of Unsafe
Abortion and Associated Mortality in 2003 (2007) 2 (emphasis added). See also: David A Grimes
et al, ‘Unsafe Abortion: The Preventable Pandemic’ (2006) 368 The Lancet 1908, 1908; Ina K
Warriner, ‘Unsafe Abortion: An Overview of Priorities and Needs’ in Ina K Warriner and Iqbal
H Shah (eds), Preventing Unsafe Abortion and its Consequences: Priorities for Research and Action
(Guttmacher Institute, New York, 2006); Marge Berer, ‘National Laws and Unsafe Abortion:
The Parameters of Change’ (2004) 12(Supp 24) Reproductive Health Matters 1, 2.
J Herman Burgers and Hans Danelius explain that the ‘public official’
requirement was inserted into the CAT definition of torture because it was
intended that ‘only torture for which the authorities could be held responsible
should fall within the article’s definition.’10 In their view, the ‘problem with
which the Convention was meant to deal was that of torture in which the
authorities of a country were themselves involved and in respect of which
the machinery of investigation and prosecution might therefore not func-
tion normally.’11 They proceed to explain that ‘[a]ll such situations where
the responsibility of the authorities is somehow engaged are supposed to be
covered by the rather wide phrase appearing in article 1.’12 Traditionally,
this requirement has been discussed when examining the conduct of police,
military or security personnel.13 However, there is nothing in the wording
of article 1 to prevent an analysis of this requirement in other contexts. This
part posits that (in light of their direct link with the State) the restrictive
regulation of abortion and involuntary sterilisation procedures performed in
public hospitals meet the ‘public official’ requirement. The approach of the
Human Rights Committee (HRC) to the characterisation of restrictions on
reproductive freedom as a violation of article 7 and the approach of the CAT
Committee to the characterisation of restrictions on reproductive freedom as
a violation of CAT are discussed in Chapters 2 and 10. Therefore, this chapter
merely provides a few examples to demonstrate the point that States may be
held responsible for involuntary sterilisation procedures performed in public
hospitals and for the consequences of restricting access to abortion.
(a) Restrictions on abortion

With regard to restrictive regulation of abortion, it is argued that torture that
is a direct result of a legislative prohibition is ‘torture for which the authori-
ties could be held responsible.’14 The authorities of a country are clearly
13 See for example: Saadia Ali v Tunisia, Committee against Torture, Communication No 291/2006,
UN Doc CAT/C/41/D/291/2006 (26 November 2008); Keremedchiev v Bulgaria, Committee
against Torture, Communication No 257/2004, UN Doc CAT/C/41/D/257/2004 (21
November 2008); Dimitrov v Serbia and Montenegro, Committee against Torture, Communication
No 171/2000, UN Doc CAT/C/34/D/171/2000 (23 May 2005).
Public official 151
directly involved in the passing of legislation and in general, in the absence
of a declaration that a law is unconstitutional, the machinery of investigation
and prosecution function so as to enforce such a law.15 Thus in the context of
legislative restrictions on abortion, once a law restricting access to abortion is
passed, it is the responsibility of the authorities to implement such a law, in
spite of the fact that the implementation of such legislation results in women
being forced either to continue with unwanted pregnancies or to endure
illegal and unsafe abortions (with the concomitant negative health impli-
cations that frequently result from the exercise of both of these ‘choices’).
Accordingly, the responsibility of the authorities is plainly engaged where a
legislative prohibition (which causes severe pain and suffering) is passed by
Parliament and implemented by the authorities.
Anand Grover makes this point in the context of laws that criminalise
abortion when he states that ‘where the criminal law is used as a tool by
the State to regulate the conduct and decision-making of individuals in the
context of the right to sexual and reproductive health the State coercively
submits its will for that of the individual.’16 Thus when Parliament passes a
law restricting a woman’s access to legal abortion, the State is implicated in
any consequential pain or suffering experienced by a woman as a result of such
restrictions. Given that the direct consequence of restricting a woman’s access
to abortion is that she is compelled either to continue with a pregnancy that
she would otherwise choose to terminate or to obtain an unsafe abortion, it is
logical that any pain or suffering resulting from either the compulsion to con-
tinue with the pregnancy or the unsafe abortion is attributable to the State.
The 2005 HRC decision of Llantoy Huamán v Peru,17 discussed in Chapter
3, illustrates this point. As previously stated, this case involved a 17-year-old
Peruvian girl who became pregnant. The scan showed that she was carrying
an anencephalic foetus and the hospital refused to terminate the pregnancy
(on the basis that termination in such circumstances would be illegal) despite
the fact that article 119 of the Peruvian Criminal Code permitted therapeutic
abortion in circumstances where ‘termination of the pregnancy was the only
way of saving the life of the pregnant woman or avoiding serious and perma-
nent damage to her health.’18 As predicted, the complainant gave birth to an
anencephalic baby who survived for four days and, after the baby’s death, she
fell into a state of deep depression. The HRC accepted that she suffered severe
mental health consequences as a result of being compelled to continue with
15 This direct State involvement in the passing and implementation of laws restricting access
to abortion also informs the conclusion in Chapter 3 that such conduct satisfies the article 1
requirement for an act (which causes severe pain or suffering).
16 Anand Grover, Report of the Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest
Attainable Standard of Physical and Mental Health, UN Doc A/66/254 (3 August 2011) [12].
(22 November 2005).
18 Llantoy Huamán v Peru Human Rights Committee, Communication No 1153/2003, UN Doc
CCPR/C/85/D/1153/2003 (22 November 2005) [2.3].
her pregnancy. It found that the conduct of Peru, ‘in not enabling the author
to benefit from a therapeutic abortion’, was the cause of her suffering.19 As a
consequence, the HRC found that Peru had violated Karen’s right to be free
from torture or cruel, inhuman or degrading treatment.20
As well as considering the consequences of forcing a woman to continue
with a pregnancy that she wishes to terminate, the HRC has also specifically
expressed concern regarding the consequences of unsafe, clandestine abor-
tions when addressing States’ compliance with article 7 of the International
Covenant on Civil and Political Rights (ICCPR).21 For example, in its 2000
concluding observations with respect to Peru the Committee expressed its
concern that ‘abortion continues to be subject to criminal penalties, even
when pregnancy is the result of rape. Clandestine abortion continues to be the
main cause of maternal mortality in Peru.’22 Further, in its General Comment
28 the HRC stated that ‘[t]o assess compliance with article 7 of the Covenant
… the Committee … needs to know whether the State party gives access to
safe abortion to women who have become pregnant as a result of rape.’23 In
this statement the HRC seems to indicate that it is not sufficient for States
to refrain from prohibiting abortion but that, at least in cases of rape, States
must actively provide access to safe abortion services. This approach of the
HRC is confirmed in the 2011 decision of LMR v Argentina,24 in which the
HRC found that Argentina’s failure to provide a mentally impaired rape
victim with timely access to abortion constituted a violation of article 7. A
Similar approach was taken by the CEDAW Committee in the case of LC v
Peru,25 in which the Committee decided that Peru’s failure to ensure access to
19 Llantoy Huamán v Peru Human Rights Committee, Communication No 1153/2003, UN Doc
CCPR/C/85/D/1153/2003 (22 November 2005) [6.3].
(22 November 2005).
21 See for example: Human Rights Committee, Concluding Observations on Peru, 58th sess, UN
Doc CCPR/C/79/Add.72 (18 November 1996) [15]; Human Rights Committee, Concluding
Observations on Senegal, 61st sess, UN Doc CCPR/C/79/Add.82 (19 November 1997) [12];
Human Rights Committee, Concluding Observations on Sudan, 61st sess, UN Doc CCPR/C/79/
Add.85 (19 November 1997) [10]; Human Rights Committee, Concluding Observations on Peru,
70th sess, UN Doc CCPR/CO/70/PER (15 November 2000) [20]; Human Rights Committee,
Concluding Observations on Sri Lanka, 79th sess, UN Doc CCPR/CO/79/LKA (1 December
2003) [12]; Human Rights Committee, Concluding Observations on Ecuador, 63rd sess, UN Doc
CCPR/C/79/Add.92 (18 August 1998) [11]; Human Rights Committee, Concluding Observations
on Trinidad and Tobago, 70th sess, UN Doc CCPR/CO/70/TTO (10 November 2000) [18];
Human Rights Committee, Concluding Observations on Morocco, 82nd sess, UN Doc CCPR/
CO/82/MAR (1 December 2004) [29].
22 Human Rights Committee, Concluding Observations on Peru, 70th sess, UN Doc CCPR/CO/70/
PER (15 November 2000) [20].
3), 68th sess, UN Doc CCPR/C/21/Rev.1/Add.10 (29 March 2000) [11].
(28 April 2011).
UN Doc CEDAW/C/50/D/22/2009 (25 November 2011).
Public official 153
abortion services for a pregnant teenage rape victim who had sustained serious
injuries as a result of a suicide attempt constituted a violation of CEDAW.
Unfortunately, the CAT Committee, the key institution responsible for
addressing violations of the prohibition of torture at the international level,
has not decided a dispute addressing the specific question of whether legisla-
tive restrictions on abortion contravene CAT. However, a number of com-
ments by the CAT Committee as well as the Special Rapporteur on torture
and other cruel, inhuman or degrading treatment or punishment (Special
Rapporteur) suggest an inclination towards adopting such an approach. In its
General Comment 2 on the implementation of article 2 by States Parties the
CAT Committee, when articulating the scope of State obligations and respon-
sibility, asserted that ‘States bear international responsibility for the acts and
omissions of their officials and others, including agents, private contractors,
and others acting in an official capacity or acting on behalf of the State, in
conjunction with the State, under its direction or control, or otherwise under colour
of law.’26 A woman who endures the pain and suffering of continuing with
an unwanted pregnancy that, given the choice, she would terminate, endures
such pain and suffering because the law, as passed by officials of the State,
prevents her from terminating the pregnancy. Thus the suffering of a woman
who is forced to continue with her pregnancy as a result of legislative restric-
tions on abortion is a suffering that is experienced under the direction and
control of the State and ‘under colour of law.’
Further, the suffering of a woman who, in desperation, endures an unsafe
abortion is a suffering that results from the State’s refusal to allow access to
safe abortion services. For example, in its 2006 conclusions and recommenda-
tions with respect to Peru the Committee expressed its concern regarding
information to the effect that:
[M]edical personnel employed by the State denies the medical treatment

required to ensure that pregnant women do not resort to illegal abortions
that put their lives at risks. Current legislation severely restricts access to
voluntary abortion, even in cases of rape, leading to grave consequences,
including the unnecessary deaths of women.27
In its 2009 conclusions and recommendations with respect to Nicaragua, the

CAT Committee was:
[D]eeply concerned by the general prohibition of abortion … even in

cases of rape, incest or apparently life-threatening pregnancies that in
many cases are the direct result of crimes of gender violence. For the

PER/CO/4 (25 July 2006) [23].
woman in question, this situation entails constant exposure to the viola-
tion committed against her and causes serious traumatic stress and a risk
of long-lasting psychological problems such as anxiety and depression.28
Thus, while this comment is focused on contextually specific types of preg-

nancy, the CAT Committee has clearly acknowledged the link between leg-
islation restricting access to abortion and the pain and suffering experienced
by many women who are prevented from terminating their pregnancies as a
result of such legislation.
(b) Involuntary sterilisation

Just as legal restrictions on abortion implicate the State in any pain and suf-
fering resulting from such restrictions, legal authorisation of involuntary ster-
ilisation procedures also directly implicate the State in any pain and suffering
resulting from such authorisation. A law that authorises involuntary sterili-
sation is in many ways directly analogous with a law that authorises female
genital mutilation (FGM) in that both types of law are laws that authorise
violence against women, the consequence of which may be severe pain and
suffering.29 Further, even in the absence of permissive legislation, where an
involuntary sterilisation procedure is carried out in a public hospital or by a
State-employed medical practitioner, there is a clear link with the State. As
stated previously, the question of State responsibility for procedures that are
performed in private hospitals will be addressed in Part 2 of this chapter.
In its General Comment 2 on the implementation of article 2 by States
Parties, the CAT Committee, when articulating the scope of State obligations
and responsibility, asserted that ‘each State party should prohibit, prevent
and redress torture and ill-treatment in all contexts of custody or control, for
example, in prisons, hospitals, schools, institutions that engage in the care of
children, the aged, the mentally ill or disabled, in military service, and other
institutions.’30 The specific reference to hospitals in this General Comment
further bolsters the argument that the State bears responsibility for an invol-
untary sterilisation procedure that is performed in a public hospital. In addi-
tion, in relation to FGM, former Special Rapporteur Manfred Nowak has
specifically stated that ‘from a human rights perspective, medicalization does
not in any way make the practice more acceptable. Even in contexts where
FGM has been recognized as a criminal offence, but where public hospitals
28 Committee against Torture, Concluding Observations on Nicaragua, 42nd sess, UN Doc CAT/C/
NIC/CO/1 (10 June 2009) [16].
29 For a discussion of the notion that FGM and involuntary sterilisation are forms of violence
against women see: Radhika Coomaraswamy, Report of the Special Rapporteur on Violence against
Women, its Causes and Consequences, UN Doc E/CN.4/1999/68/Add.4 (21 January 1999).
Public official 155
offer this “service”, it constitutes torture or ill-treatment.’31 Following this
logic, an involuntary sterilisation procedure will not be acceptable simply
because it is performed in a sanitary, medical environment (as opposed, for
example, to an unhygienic space set up for the specific purpose of performing
mass sterilisations).32 In fact, where this procedure is performed in a public
hospital, the public nature of the hospital is sufficient to impute responsibility
to the State even if the practice is prohibited by law.
A 2006 decision of the Committee on the Elimination of Discrimination
against Women (CEDAW Committee) recognises this connection between
involuntary sterilisation and the State. In AS v Hungary,33 a Hungarian
Romani woman was subjected to coerced sterilisation by medical staff at the
public hospital in Fehérgyarmat. The CEDAW Committee found that the
‘failure of the State party, through the hospital personnel, to provide appropri-
ate information and advice on family planning’ constituted a violation of
article 10(h) of the Convention on the Elimination of Discrimination against
Women (CEDAW), which requires States to ensure access to specific edu-
cational information.34 Similarly, the State of Hungary was responsible for
the hospital’s failure to obtain informed consent and the deprivation of the
woman’s right to decide the number and spacing of her children in violation
of articles 12 and 16(1)(e) of CEDAW. Thus the CEDAW Committee held
the State of Hungary responsible for an involuntary sterilisation procedure
performed in one of its public hospitals.
Comparably, in a number of cases, the European Court of Human Rights
(European Court) has found Slovakia responsible for instances of involuntary
sterilisation that have occurred in its public hospitals. In the cases of VC v
Slovakia,35 NB v Slovakia36 and IG and Ors v Slovakia,37 the European Court
ordered Slovakia to pay compensation to Romani women who had been steri-
lised in public hospitals while undergoing caesarean sections without provid-
ing informed consent to the sterilisation procedures. Further, this attribution
of State responsibility for involuntary sterilisation procedures performed in
Slovakia has also been affirmed by the HRC in broad terms. For example,
32 For example, in Peru during the reign of Alberto Fujimori ‘health care providers denied women
their fundamental rights to informed consent when professionals pressured women to undergo
surgical sterilization during “Tubal Ligation Festivals” and at locations designated for food aid
distribution.’ See Jocelyn E Getgen, ‘Untold Truths: The Exclusion of Enforced Sterilizations
from the Peruvian Truth Commission’s Final Report’ (2009) 29 Boston College Third World Law
Journal 1, 12.
UN Doc A/61/38 (14 August 2006).
34 AS v Hungary Committee on the Elimination of Discrimination against Women, Communication
No 4/2004, UN Doc A/61/38 (14 August 2006) [11.2] (emphasis added).
35 (2011) Eur Court HR 18968/07.
36 (2012) Eur Court HR 29518/10.
37 (2012) Eur Court HR 15966/04.
in its 2003 concluding observations on Slovakia the HRC raised the issue
of involuntary sterilisation in the context of article 7 of the ICCPR, stating
that States should investigate alleged instances of involuntary sterilisation,
provide effective remedies to victims and prevent any future incidents of
involuntary sterilisation from occurring.38
Accordingly, the ‘public official’ requirement in article 1 of CAT is sat-
isfied with respect to both legal restrictions on abortion and involuntary
sterilisation procedures performed in the public sphere. There is a direct con-
nection between the State and the pain and suffering experienced by a woman
who has endured an involuntary sterilisation procedure in a public hospital
or by a State-employed doctor. Similarly, it seems that there is a direct con-
nection between legislation restricting access to abortion and the suffering of
a woman who is compelled either to continue with an unwanted pregnancy
or to endure an illegal abortion, thereby establishing a relationship between
the State and the experience of pain and suffering. Yet this analysis does not
address all the possible scenarios. For example, does the State bear responsibil-
ity for an involuntary sterilisation procedure performed in a private hospital?
This issue is the focus of the remainder of this chapter.
3 Indirect state responsibility

As stated already, the purpose of this part is to examine whether a State can be
held responsible for the conduct of private actors. The ‘public official’ require-
ment in article 1 of CAT requires that severe pain or suffering be ‘inflicted
by or at the instigation of or with the consent or acquiescence of a public
official or other person acting in an official capacity.’ Thus the question to be
discussed in this part is: what is the meaning of ‘consent or acquiescence’ in
this context? Does ‘consent or acquiescence’ translate into a broad conceptu-
alisation of the notion of State responsibility? Many feminist scholars argue
for an expansive approach to the notion of State responsibility. Accordingly,
this part begins with a brief preliminary discussion of the gendered dimen-
sion of the public/private distinction in international human rights law before
delving into the interpretation of the ‘public official’ requirement in CAT.
(a) Gendered dimension of the public/private distinction

The argument that international human rights law privileges the realities of
men’s lives while marginalising the realities of women’s lives is well docu-
mented and is discussed in Chapter 1.39 For example, international human
38 Human Rights Committee, Concluding Observations on Slovakia, 58th sess, UN Doc A/58/40 (24
October 2003) [12].
39 See for example: Rebecca J Cook, ‘Introduction’ in Rebecca J Cook (ed), Human Rights of Women:
National and International Perspectives (University of Philadelphia Press, Philadelphia, 1994)
10; Alice Edwards, ‘The “Feminizing” of Torture Under International Human Rights Law’
(2006) 19 Leiden Journal of International Law 349; Charlotte Bunch, ‘Women’s Rights as Human
Public official 157
rights law has traditionally privileged civil and political rights (CPR), which
are most relevant in the public sphere, over economic, social and cultural
rights, which are most relevant in the private sphere.40 Given that men have
traditionally occupied the public sphere and women the private sphere, this
de facto hierarchy of rights has privileged those rights that are more likely to
affect men directly over those rights that are more likely to concern women
directly.41 Thus the emphasis on the public arena at the expense of the private
has served to reinforce the subordinated status of women.42
Further, even within the realm of CPR, not only do such rights tend to fall
within the public space but they also tend to be specifically interpreted so as
to exclude the private space. A clear example is the prohibition of torture.
The right to be free from torture is a civil and political right and the ‘public
official’ requirement in article 1 of CAT has traditionally been interpreted so
as to require a direct link between the act of torture and the State, thereby
placing the prohibition firmly within the public domain. Thus the ‘public
official’ requirement in CAT has represented the privileging of men’s reality
over women’s reality.43
Rhonda Copelon illustrates this point in her discussion of domestic violence
as torture. She describes the severe pain and suffering intentionally inflicted on
women who are subjected to extreme forms of domestic violence and considers
the purposes for which such pain and suffering is inflicted, which may include
one or more of the following: to elicit information, to punish, to intimidate; or
as a form of discrimination against women.44 Through this analysis, Copelon
concludes that there is little to differentiate private violence from official
violence other than the extent of State involvement in the perpetration of the
pain or suffering. She observes that ‘when stripped of privatization, sexism and
sentimentality, private gender-based violence is no less grave than other forms
Rights: Toward a Re-Vision of Human Rights’ (1990) 12 Human Rights Quarterly 486; Hilary
Charlesworth, Christine Chinkin and Shelley Wright, ‘Feminist Approaches to International
Law’ (1991) 85 American Journal of International Law 613; Hilary Charlesworth, ‘The Hidden
Gender of International Law’ (2002) 16 Temple International and Comparative Law Journal 93;
Hilary Charlesworth and Christine Chinkin, The Boundaries of International Law (Manchester
University Press, Manchester, 2000).
40 See for example: Committee on Economic, Social and Cultural Rights, Submission to the World
Conference on Human Rights, UN Doc E/1993/22, Annex III (1993) [5]–[7]. See also: the discus-
sion providing examples of the gendered nature of the international legal system in Chapter 1.
41 Alice Edwards, ‘The “Feminizing” of Torture Under International Human Rights Law’ (2006)
19 Leiden Journal of International Law 349, 355; Hilary Charlesworth, Christine Chinkin and
Shelley Wright, ‘Feminist Approaches to International Law’ (1991) 85 American Journal of
International Law 613, 626.
42 Rebecca J Cook, ‘State Responsibility for Violations of Women’s Human Rights’ (1994) 7
Harvard Human Rights Journal 125, 150; Hilary Charlesworth and Christine Chinkin, The
Boundaries of International Law (Manchester University Press, Manchester, 2000) 44.
43 Alice Edwards, ‘The “Feminizing” of Torture Under International Human Rights Law’ (2006)
19 Leiden Journal of International Law 349, 350.
(1994) 25 Columbia Human Rights Law Review 291, 308–341.
of inhumane and subordinating official violence that have been prohibited by
treaty and customary law and recognized by the international community as
jus cogens, or peremptory norms.’45 In this way, Copelon makes the point that
when analysing extreme forms of domestic violence as torture, the only ele-
ment missing is the ‘public official’ requirement and that insisting on direct
official involvement has the effect of placing conduct that disproportionately
affects women beyond the radar of international condemnation.
Further, the objection of some feminists to a narrow conceptualisation
of the ‘public official’ requirement is not limited to the view that such an
approach elevates the primary concerns of men to the international realm
while marginalising the primary concerns of women. Many feminists have
argued that the public/private distinction is largely a myth. According to
this argument, the public and the private are so closely linked that any
sharp distinction is somewhat artificial. Thus Hilary Charlesworth, Christine
Chinkin and Shelley Wright have observed that the ‘myth that state power is
not exercised in the “private realm” allocated to women masks its control’46
and Frances Olsen has noted that the State clearly influences the private realm
regardless of whether it actively intervenes in that realm.47 Celina Romany
has remarked that the ‘public/private dichotomy … obscures the political
nature of so-called private life.’48 She describes violence against women as a
political act operating in a parallel State that serves to reinforce the values of
the official State. Thus in her view, the public cannot be separated from the
private because the atrocities to which women are subjected in the private
realm reflect the culture and values of the official State; values that protect
male power and domination.49 Rhonda Copelon expresses a similar view,
asserting that intimate violence against women ‘is rooted in and perpetuates
the culture as well as the structure of the patriarchal state.’50 The culture of
the patriarchal State is one that allows the perpetrators of violence against
women to behave with impunity thereby constituting ‘men as a de facto abso-
lutist state in women’s lives.’51 Hilary Charlesworth and Christine Chinkin
pursue a similar line of thought, commenting that ‘if violence against women
is understood not just as aberrant behaviour but as part of the structure of the
46 Hilary Charlesworth, Christine Chinkin and Shelley Wright, ‘Feminist Approaches to
International Law’ (1991) 85 American Journal of International Law 613, 627.
47 Frances Olsen, ‘The Myth of State Intervention in the Family’ (1985) 18 University of Michigan
Journal of Law Reform 835.
48 Celina Romany, ‘Women as Aliens: A Feminist Critique of the Public/Private Distinction in
International Human Rights Law’ (1993) 6 Harvard Human Rights Journal 87, 100.
49 Celina Romany, ‘Women as Aliens: A Feminist Critique of the Public/Private Distinction in
International Human Rights Law’ (1993) 6 Harvard Human Rights Journal 87, 111.
Public official 159
universal subordination of women, it cannot be considered a purely “private”
issue.’52 Further, Catharine MacKinnon queries why violence against women
in the form of rape, domestic violence and pornography is not viewed as
‘political’ and concludes that ‘the definition of the political is an unequal one,
determined on the basis of sex such that atrocities to women are denied.’53
Along a similar vein, she observes that the restriction of human rights viola-
tions to State actions makes no sense given that the majority of violations to
which women are subjected are violations perpetrated by private actors and
tolerated by the State, rather than actions of the State itself.54
Accordingly, from a feminist perspective, a narrow interpretation of the
‘public official’ requirement that focuses solely on direct State action is prob-
lematic. Fortunately, as discussed in the next section, the CAT Committee
has begun to adopt a broad approach to the ‘public official’ requirement that
incorporates the notion of ‘due diligence’ applied throughout the interna-
tional human rights regime. Consequently, whereas satisfaction of the public
official requirement remains a prerequisite for conduct to be categorised as a
violation of article 1 (or article 16) of CAT, the interpretation of this require-
ment is falling in line with the broad approach to State responsibility adopted
more generally in the international human rights system.
(b) International position

In general, States are the subjects of international human rights law.55 Thus
it is States, rather than individuals, that are held responsible for human
rights violations. The international legal system has begun to adopt a broad
approach to the notion of State responsibility such that States are held respon-
sible not only for their own actions but, for example, for failing to exercise due
diligence to prevent private actors from committing human rights abuses.56
This section explores the broad approach to State responsibility that the inter-
national system is adopting with respect to human rights violations, particu-
larly with regard to conduct constituting torture and other cruel, inhuman or
degrading treatment (CIDT).
It is useful to bear in mind that whereas the requirement for a nexus with
53 Catharine A MacKinnon, ‘On Torture: A Feminist Perspective’ in Kathleen E Mahoney and Paul
Mahoney (eds), Human Rights in the Twenty-First Century: A Global Challenge (Martinus Nijhoff
Publishers, Dordrecht, 1993) 26.
55 See for example: Robert McCorquodale, ‘Non-State Actors and International Human Rights
Law’ in Sarah Joseph and Adam McBeth (eds), Research Handbook on International Human Rights
Law (Edward Elgar, Cheltenham, 2010) 97, 97.
56 See for example: Rebecca J Cook, ‘State Responsibility for Violations of Women’s Human
Rights’ (1994) 7 Harvard Human Rights Journal 125, 151.
the State is generally a logical and implicit prerequisite for State responsibil-
ity for human rights violations, the definition of torture set out in article 1
of CAT is explicit in its requirement for a link with the State. In other words,
whereas most human rights treaties assume the requirement for a nexus with
the State, the definition of torture contained in article 1 of CAT specifically
insists on pain or suffering that is ‘inflicted by or at the instigation of or with
the consent or acquiescence of a public official or other person acting in an
official capacity.’57 Thus in order to determine whether the ‘public official’
requirement may be established in the context of ‘private’ violence, it is
necessary to consider the meaning of ‘consent or acquiescence of a public offi-
cial’. According to Rhonda Copelon, the phrase ‘consent or acquiescence’ was
added to the ‘public official’ requirement ‘to ensure that officials could not
escape responsibility by claiming ignorance of violations not committed by
public officials, but for which such officials should bear some responsibility.’58
Indeed, this approach is a manifestation of the compromise that was struck
during the drafting of the Convention, between restricting the definition to
the conduct of public officials and expanding it to include the conduct of
private actors.59 This section delves into this concept by considering both
the approach of the HRC and the regional bodies to the notion of State
responsibility as well as the approach of the CAT Committee and various
commentators to the ‘public official’ requirement.
(i) Application of the ‘due diligence’ requirement to torture and CIDT in

international human rights law
APPROACH OF THE HRC
While the CAT Committee is the main international body responsible for
steering the international position with regard to matters of torture and
CIDT, the HRC (in its interpretation of article 7 of the ICCPR) also sig-
nificantly contributes to the international discourse. It is worth noting (as
alluded to earlier) that whereas article 7 of the ICCPR does not explicitly
require a nexus with the State, the HRC has interpreted article 7 as implicitly
including the requirement for a connection with the State.
In Cabal and Pasini v Australia,60 the HRC was asked to decide whether
Australia’s obligations under the ICCPR applied to privately run detention
facilities. It decided that Australia was responsible for what occurred in these
58 Rhonda Copelon, ‘Gender Violence as Torture: The Contribution of CAT General Comment No
2’ (2008) 11 New York City Law Review 229, 254.
or Degrading Treatment or Punishment, 11 March 1979, UN Doc E/CN.4/L.1470.
(7 August 2003).
Public official 161
private detention facilities, stating that ‘the contracting out to the private
commercial sector of core State activities which involve the use of force and
the detention of persons does not absolve a State party of its obligations under
the Covenant, notably under articles 7 and 10.’61 In Kaba v Canada,62 the
HRC was asked to decide whether returning a 15-year-old girl to Guinea
where there was a real risk that she would be subjected to FGM by private,
non-State actors would violate article 7 of the ICCPR. It decided that article
7 would be violated despite the existence of laws prohibiting FGM given that
the law in this context was not enforced; consequently, those who practise
FGM do so with impunity.63 In its General Comment 20, the HRC clearly
extends the responsibility of States for acts of torture and CIDT into the pri-
vate realm. It unambiguously states that ‘[i]t is the duty of the State party to
afford everyone protection through legislative and other measures as may be
necessary against the acts prohibited by article 7, whether inflicted by people
acting in their official capacity, outside their official capacity or in a private
capacity.’64 Similarly, in its General Comment 31, the HRC refers to the
obligation of States to ‘exercise due diligence to prevent, punish, investigate
or redress’ harm caused by private actors.65
Further, it is interesting to note that the HRC, in its interpretation of
article 7 of the ICCPR, has specifically addressed the question of involuntary
sterilisation. In its General Comment 28, the HRC requested that States
Parties provide information on ‘measures to prevent forced abortion or forced
sterilization.’66 The HRC’s concern with what measures States are taking to
prevent involuntary sterilisation is indicative of its view that States have an
obligation to prevent the performance of involuntary sterilisation procedures.
It may be presumed that this obligation to exercise due diligence applies
with respect to procedures performed in private as well as public fora. This
broad approach to the interpretation of article 7 is also reflected in the HRC’s
concluding observations. For example, the HRC has stressed the need for
States to prevent incidents of involuntary sterilisation from occurring and
to investigate and remedy such instances if they do occur.67 Once again, the
61 Cabal and Pasini v Australia Human Rights Committee, Communication No 1020/2002, UN

Doc CCPR/C/78/D/1020/2002 (7 August 2003) [7.2].
(21 May 2010).
63 Kaba v Canada Human Rights Committee, Communication No 1465/2006, UN Doc CCPR/
C/98/D/1465/2006 (21 May 2010) [10.2].
64 Human Rights Committee, General Comment 20: Replaces General Comment 7 Concerning Prohibition
of Torture and Cruel Treatment or Punishment, 44th sess, UN Doc HRI/GEN/1/Rev.1 (10 March
1992) [2].
65 Human Rights Committee, General Comment 31: Nature of the General Legal Obligation on States
Parties to the Covenant, 80th sess, UN Doc CCPR/C/21/Rev.1/Add.13 (29 March 2004) [8].
67 See for example: Human Rights Committee, Concluding Observations on Slovakia, 58th sess, UN
Doc A/58/40 (24 October 2003) [12].
HRC has not limited this obligation to circumstances in which involuntary
sterilisation occurs in the public realm. It can therefore be presumed that the
HRC conceptualises the State obligation as an obligation to prevent, investi-
gate and remedy instances of involuntary sterilisation in the private (as well
as public) realm. Thus it seems that the HRC is adopting a broad approach
to the notion of State responsibility for human rights violations, including
involuntary sterilisation, which embraces the ‘due diligence’ approach. This
approach has also found favour at the regional level.
REGIONAL APPROACH
The regional systems seem to have embraced a broad approach to the attri-
bution of State responsibility in disputes involving allegations of torture or
CIDT.68 In a case against Chad, the African Commission was confronted with
allegations of numerous human rights violations committed against a number
of people in the context of civil war.69 It was unclear whether the State was
directly involved in any of the violations. In finding a violation of the prohibi-
tion of torture and inhuman and degrading treatment, the Commission stated
that ‘[e]ven where it cannot be proved that violations were committed by
government agents, the government had a responsibility to secure the safety
and liberty of its citizens, and to conduct investigations into murders.’70
Similarly, the Inter-American Court of Human Rights has also cast a
wide net in the imputation of State responsibility in the context of torture
discourse. In the influential Velásquez Rodríguez case,71 the Inter-American
Court of Human Rights imposed a duty of due diligence on States to prevent,
investigate and punish acts of torture. The Court stated that:
The State has a legal duty to take reasonable steps to prevent human
rights violations and to use the means at its disposal to carry out a serious
investigation of violations committed within its jurisdiction, to identify
those responsible, to impose the appropriate punishment and to ensure
the victim adequate compensation … The State is obligated to investi-
gate every situation involving a violation of the rights protected by the
Convention. If the State apparatus acts in such a way that the violation
goes unpunished and the victim’s full enjoyment of such rights is not
restored as soon as possible, the State has failed to comply with its duty
to ensure the free and full exercise of those rights to the persons within
its jurisdiction. The same is true when the State allows private persons or groups
68 See: Chapter 2 for an overview of the prohibition of torture and CIDT in the European system,
the Inter-American system and the African system.
69 Commission Nationale des Droits de l’Homme et des Libertés v Chad, African Commission on Human
and Peoples’ Rights, Communication No 74/92 (October 1995).
70 Commission Nationale des Droits de l’Homme et des Libertés v Chad, African Commission on Human
and Peoples’ Rights, Communication No 74/92 (October 1995) [22].
Public official 163
to act freely and with impunity to the detriment of the rights recognized by the
Convention.72
In that case, Manfred Velásquez was kidnapped by men in civilian clothes

who used a vehicle without licence plates. The court found that the failure
of Honduras to investigate and punish the perpetrators was sufficient to
impute responsibility onto the State and therefore declared that Honduras
had violated article 5 of the Inter-American Convention on Human Rights,
which prohibits torture and CIDT.73 Such an approach was confirmed in
the more recent decision of González et al v Mexico,74 where the court found
that Mexico had violated article 5 in circumstances where police failed to
investigate the disappearances and murders of three poor migrant women. In
this case, for the first time, the Inter-American Court considered the positive
obligations of States to respond to violence against women perpetrated by
private actors.75
The European Court has also adopted a broad approach to the question of
State responsibility in the context of torture discourse. In fact, according to
Malcolm Evans, there has been:
[A] dramatic broadening of what falls within the scope of an ‘act of

a public official’. This certainly includes being ill-treated by a police
officer or prison warder but rather than focus on what officials of the
state have ‘done’, there is an increased tendency to focus on what the
state can legitimately be held responsible for and to present its reasoning
through the lens of ‘state responsibility’. Some still cling to the notion
that in order to amount to a violation of Article 3 ill-treatment must
have been meted out by state actors themselves, but it is now quite clear
that a state may in certain circumstances be in breach of Article 3 when it fails
to prevent forms of ill-treatment that attain the requisite degree of seriousness from
occurring.76
The approach of the European Court is particularly significant given that the
approach of the European system to the issue of torture and CIDT has strongly
influenced the international system. For example, the drafters of the defini-
tion of torture contained in the Declaration on the Protection of All Persons
from Being Subjected to Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment,77 which came into being almost a decade before
72 Velásquez Rodríguez v Honduras [1988] Inter-Am Court HR (ser c) No 4 [174]–[176].

74 [2009] Inter-Am Court HR (ser c) No 205 also known as the ‘Cotton Field case.’
75 Rebecca J Cook, ‘Structures of Discrimination’ (2011) 28 Macalester International Journal 33, 43.
76 Malcolm D Evans, ‘Getting to Grips with Torture’ (2002) 51 International and Comparative Law
Quarterly 366, 378 (citations omitted; emphasis added).
77 GA Res 3452 (XXX), UN GAOR, 30th sess, 2433rd plen mtg, UN Doc A/RES/3452(XXX)
(9 December 1975).
CAT, were influenced by the discussion of the European Commission of
Human Rights in its Greek Case.78
The European Court has clearly stated that a failure to conduct a proper
investigation, in circumstances in which authorities are alerted to behaviour
that falls within the parameters of torture or CIDT, will constitute a violation
of article 3 of the European Convention for the Protection of Human Rights
and Fundamental Freedoms (ECHR). For example, in the case of Assenov v
Bulgaria,79 which involved allegations of ill-treatment by police, and the case
of MC v Bulgaria,80 which involved allegations of rape by private actors, the
European Court found a violation of article 3 based on the State’s failure to
conduct a proper investigation into the allegations. The European Court has
also stated that a failure to protect individuals from the conduct of private
actors, in circumstances in which authorities are alerted to behaviour that
falls within the parameters of torture or CIDT, will constitute a violation of
article 3 of the ECHR. For example, in A v United Kingdom,81 the authorities
were notified of incidents of corporal punishment but failed to act on such
notification. The European Court found that the State’s failure to act to pro-
tect A from receiving beatings with a garden cane, together with insufficient
legal protection against such conduct, amounted to a violation of article 3
by the United Kingdom. Similarly, in Z v United Kingdom,82 the European
Court found that the failure of the social services system to protect children
from serious, long-term neglect and abuse at home, in circumstances where
social services were alerted and continually updated as to the predicament,
amounted to a violation of article 3.
By interpreting the notion of State responsibility so as to include the
requirement that States exercise due diligence in preventing, investigating
and punishing acts of torture, it seems that (at both the international and
regional level) international law is extending its reach into the private realm
while nevertheless ensuring that the State remains the subject of the pro-
hibition. The remaining question to be answered is: is the ‘public official’
requirement in CAT interpreted in a broad manner akin to the notion of State
responsibility in international human rights law generally? Or has the explicit
reference to the requirement for a nexus with the State in CAT resulted in a
narrower interpretation of the ‘public official’ requirement?
78 (1969) YB Eur Conv on HR 461. See J Herman Burgers and Hans Danelius, The United Nations
Convention against Torture: A Handbook on the Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment (Martinus Nijhoff Publishers, Dordrecht, 1988) 114–115.
79 (1998) VIII Eur Court HR 24760/94.
80 (2003) XII Eur Court HR 39272/98.
81 (1998) VI Eur Court HR 25599/94.
82 (2001) V Eur Court HR 29392/95.
Public official 165
(ii) Interpretation of the ‘public official’ requirement in CAT

The question of whether a State can be held responsible for the torturous
activities of private actors does not lend itself to a simple answer. Peter
Kooijmans, the first Special Rapporteur on torture and other cruel, inhuman
or degrading treatment or punishment (Special Rapporteur), is of the view
that ‘State responsibility is apparent’ where the State acts through ‘private
gangs or paramilitary groups’ and where the State acquiesces to the private
practice of harmful customs such as FGM. However, he is careful to note that
‘private acts of brutality’ should not be imputed to the State.83 Nigel Rodley,
also a former Special Rapporteur, has expressed the view that the ‘public
official’ requirement is an expression of the notion that ‘the state violates the
right through its agents.’84 Consequently, in Rodley’s view, the State bears no
responsibility for the actions of wholly private actors.85
However, Manfred Nowak, who finished his term as Special Rapporteur
in October 2010, has adopted a broader approach to this requirement. In
his view, ‘the language used in article 1 of the Convention concerning con-
sent and acquiescence by a public official clearly extends State obligations
into the private sphere and should be interpreted to include State failure to
protect persons within its jurisdiction from torture and ill-treatment com-
mitted by private individuals.’86 Further, in his January 2008 report to the
Human Rights Council, Nowak includes an entire section on torture and
ill-treatment in the private sphere where he specifically states that private acts
of violence against women, such as intimate partner violence and FGM, may
constitute torture if the State fails to act with due diligence.87 For example,
in relation to intimate partner violence Nowak states that ‘States should be
held accountable for complicity in violence against women, whenever they
create and implement discriminatory laws that may trap women in abusive
circumstances.’88 In relation to FGM, Nowak states that ‘in cases where FGM
is performed in private clinics and physicians carrying out the procedure are
not being prosecuted, the State de facto consents to the practice and is there-
fore accountable.’89 Accordingly, the logical consequence of this approach is
83 Peter Kooijmans, Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, UN Doc E/CN.4/1986/15 (19 February 1986) [38].
Problems 467, 484.
Problems 467, 484–487.
86 Manfred Nowak, Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading
that States that fail to exercise due diligence in prosecuting private actors
who perform involuntary sterilisation procedures may be held responsible
for pain or suffering resulting from such procedures.90 Thus it seems that
there has been much discussion among experts in the field as to the extent to
which States will be held responsible for private conduct. The remainder of
this chapter will consider the approach of the CAT Committee to the ‘public
official’ requirement.
CAT COMMITTEE DECISIONS
As already mentioned, article 1 of CAT explicitly states that in order to con-

stitute torture, pain or suffering must be ‘inflicted by or at the instigation of or
with the consent or acquiescence of a public official or other person acting in
an official capacity.’ Therefore, in contrast to many other international human
rights documents in which the nexus with the State is an implicit require-
ment, pursuant to CAT the nexus with the State is an explicit requirement.
This section examines the approach of the CAT Committee to the notion of
‘consent or acquiescence’ of a public official. Most of the cases decided by the
CAT Committee have focused on the conduct of State officials such as police,
military or security personnel (in which case the ‘public official’ requirement
is clearly established) or on the conduct of armed groups in direct conflict
with the State (in which case the ‘public official’ requirement has generally
not been established). Nevertheless, the CAT Committee has handed down a
few decisions indicating that it is open to adopting a broad approach to the
requirement for a nexus with the State. The principal case that the Committee
has heard that has raised the issue of whether the actions of wholly private
actors (who do not belong to armed groups opposing the government) can
be attributed to the State is the case of Dzemajl et al v Serbia and Montenegro
(concerning article 16 CAT).91 In this case, which involved police officers
standing by and watching as a crowd destroyed a Roma settlement, the CAT
Committee found that the malicious and wide-scale destruction of property
occurred with the acquiescence of public officials. Accordingly, this decision
90 It should be noted that, with regard to violence against women more broadly, there has been
significant discussion regarding the obligation of States to exercise ‘due diligence’ and the
scope of such a ‘due diligence’ requirement. For example, the Declaration on the Elimination of
Violence against Women urges States to ‘exercise due diligence to prevent, investigate and, in
accordance with national legislation, punish acts of violence against women, whether those acts
are perpetrated by the State or by private persons’: Declaration on the Elimination of Violence against
Women, GA Res 48/104, UN GAOR, 48th sess, 85th plen mtg, UN Doc A/RES/48/104 (23
February 1994). Further, Yakin Ertürk, former Special Rapporteur on violence against women,
its causes and consequences focused her 2006 report to the Commission on Human Rights on
‘The Due Diligence Standard as a Tool for the Elimination of Violence against Women’: Yakin
Ertürk, Report of the Special Rapporteur on Violence against Women, its Causes and Consequences, UN
Doc E/CN.4/2006/61 (20 January 2006).
(21 November 2002).
Public official 167
indicates that a State’s failure to take reasonable steps to prevent torture (or
CIDT) constitutes acquiescence, thereby giving rise to accountability under
CAT.92
The 2010 decision of Njamba and Balikosa v Sweden93 is also relevant in
this context. In this case, the CAT Committee decided that Sweden would
be in violation of article 3 of CAT if it deported a mother and daughter
to the Democratic Republic of the Congo based on the likelihood that the
women would be subjected to sexual violence on return. The Committee
reached this decision despite the fact that the threat of sexual violence was
not necessarily directly referable to officials of the State. In reaching this
conclusion the Committee cited a United Nations report which concludes
that ‘[v]iolence against women, in particular rape and gang rape committed
by men with guns and civilians, remains a serious concern, including in areas
not affected by armed conflict.’94 Therefore, it seems that, although there is a
dearth of individual communications that raise the question of State respon-
sibility for the conduct of private actors, the CAT Committee is embracing
a broad interpretation of the notion of ‘consent or acquiescence’ of a public
official. Thus while there has been significant criticism directed at the CAT
Committee’s refusal to attribute State responsibility to the conduct of armed
groups in conflict with the government,95 it seems that in the context of State
responsibility for the conduct of private actors the Committee is open to the
broad approach adopted by the international human rights regime generally.
The Committee’s willingness to embrace a broad interpretation of the ‘public
official’ requirement is confirmed in its General Comments as well as in a
number of concluding observations.
GENERAL COMMENTS
Comments of the CAT Committee outside the individual communications

arena indicate a willingness to embrace the notion of indirect State responsi-
bility. For example, in its General Comment 2 the CAT Committee specifi-
cally extended State responsibility for acts causing severe pain or suffering to
include acts committed by private actors. It stated that:
The Committee has made clear that where State authorities or others
acting in official capacity or under colour of law, know or have reason-
able grounds to believe that acts of torture or ill-treatment are being
92 Sarah Joseph, Jenny Schultz and Melissa Castan, The International Covenant on Civil and Political
Rights: Cases, Materials, and Commentary (2nd ed, Oxford University Press, Oxford 2004) [9.12].
(14 May 2010).
94 Njamba and Balikosa v Sweden, Committee against Torture, Communication No 322/2007, UN
Doc CAT/C/44/D/322/2007 (14 May 2010) [9.5] (emphasis added).
95 See for example: Robert McCorquodale and Rebecca La Forgia, ‘Taking off the Blindfolds:
Torture by Non-State Actors’ (2001) 1 Human Rights Law Review 189.
committed by non-State officials or private actors consistently with the
Convention, the State bears responsibility and its officials should be
considered as authors, complicit or otherwise responsible under the
Convention for consenting to or acquiescing in such impermissible acts
… The Committee has applied this principle to States parties’ failure to prevent
and protect victims from gender-based violence, such as rape, domestic violence,
female genital mutilation, and trafficking.96
Thus in General Comment 2, the CAT Committee explicitly asserted that

States may bear responsibility for the conduct of private actors in circum-
stances in which they knew or should have known that acts of torture were
being perpetrated. In addition, the Committee emphasised the responsibility
of States to ‘prevent and protect’ victims of gender-based violence.
In this same General Comment, the Committee has recalled that the failure
‘to exercise due diligence to intervene to stop, sanction and provide rem-
edies to victims of torture facilitates and enables non-State actors to commit
acts impermissible under the Convention with impunity.’97 In this way, the
Committee has linked the concept of ‘consent or acquiescence’ to that of
‘due diligence’ applied in other treaties and international documents.98 The
Committee also directly acknowledged the dangers that women face in the
reproductive sphere when it stated that ‘[t]he contexts in which females are
at risk include deprivation of liberty, medical treatment, particularly involving
reproductive decisions, and violence by private actors in communities and homes.’99
According to Theodore Van Boven:
[T]he General Comment is in line with General Comment No. 31 of the

Human Rights Committee which signifies the responsibility of States fail-
ing to exercise due diligence to prevent, punish, investigate or redress harm
caused by acts of private persons or entities violating the Covenant. The
General Comment is also fully in keeping with General Recommendation
No. 19 on Violence against Women where the Committee on the
Elimination of Discrimination against Women (‘CEDAW’) stated, ‘Under
general international law and specific human rights covenants, States may
be responsible for private acts if they fail to act with due diligence to pre-
vent violations of rights or to investigate and punish acts of violence.’100

98 Rhonda Copelon, ‘Gender Violence as Torture: The Contribution of CAT General Comment
No 2’ (2008) 11 New York City Law Review 229, 254.
100 Theodore Van Boven, ‘Remarks on the Convention against Torture’s General Comment No 2’
(2008) 11 New York City Law Review 217, 221 (citations omitted).
Public official 169
Thus according to Van Boven, in General Comment 2, the CAT Committee
adopted an approach to the ‘public official’ requirement which accords with
the approach of the HRC as well as the CEDAW Committee to the question
of State responsibility for the conduct of private actors.
Similarly, Felice Gaer, in her remarks on General Comment 2, emphasises
the notion that the ‘public official’ requirement includes conduct perpetrated
‘with the consent or acquiescence of a public official.’ She notes that pursuant
to General Comment 2, a systematic failure to protect against conduct that
meets the requirements for torture or CIDT and to hold perpetrators account-
able would fall within the rubric of CAT.101 Moreover, according to Gaer, the
General Comment’s ‘explicit use of the concept of due diligence to explain the
meaning of acquiescence’ is significant.102
This adoption by the CAT Committee of a due diligence approach to the
question of State responsibility is reiterated in General Comment 3, in which
it asserts that:
Where State authorities or others acting in their official capacity com-

mitted, knew or have reasonable grounds to believe that acts of torture or
ill-treatment had been committed by non-state officials or private actors
and failed to exercise due diligence to prevent, investigate, prosecute
and punish such non-State officials or private actors in accordance with
the Convention, the State bears responsibility to provide redress for the
victims.103
Thus it seems that the CAT Committee is interpreting the public official
requirement in article 1 of CAT in line with the broad approach to State
responsibility being adopted at the broader international human rights level.
CONCLUDING OBSERVATIONS
The CAT Committee has also addressed the question of State responsibility
for the conduct of private actors in a number of concluding observations. For
example, the CAT Committee has specifically addressed the issue of State
facilitation of FGM. In its 2004 conclusions and recommendations with
respect to Cameroon, the Committee recommended that Cameroon enact
a law banning FGM.104 In its 2008 concluding observations with respect
to Indonesia, the Committee recommended the adoption of measures to
101 Felice D Gaer, ‘Opening Remarks: General Comment No 2’ (2008) 11 New York City Law
Review 187, 194.
Review 187, 194.
Doc CAT/C/GC/3 (19 November 2012) [7].
104 Committee against Torture, Conclusions and Recommendations on Cameroon, 31st sess, UN Doc
CAT/C/CR/31/6 (5 February 2004) [7].
eradicate FGM and in its 2009 concluding observations with respect to Chad,
the Committee expressed concern regarding the practice of FGM and empha-
sised the need for the implementation of legislation prohibiting FGM.105 It is
interesting that the Committee has not restricted itself to raising this issue
in connection with States in which FGM is widely accepted and practised; in
its 2008 concluding observations with respect to Australia, for example, the
Committee recommended that Australia introduce the prohibition of FGM
into the Federal Criminal Code.106
The CAT Committee has invoked this same logic in relation to other
forms of violence against women. For example, in its 2007 conclusions and
recommendations with respect to Japan, the Committee expressed concern
regarding the restrictive scope of legislation covering rape.107 In its 2008
concluding observations with respect to Indonesia, the Committee recom-
mended that Indonesia implement measures to prevent and combat domestic
violence.108 Similarly, in its 2004 conclusions and recommendations with
respect to Greece, the Committee recommended the adoption of legislation to
combat domestic violence. Further, in its 2008 concluding observations with
respect to China and 2011 concluding observations with respect to Paraguay,
the Committee expressed concern regarding the lack of legislation prohibit-
ing all forms of violence against women.109 Thus, in numerous concluding
observations, the Committee has conceptualised violence against women that
occurs in the private realm as attracting State responsibility.
The CAT Committee has also raised involuntary sterilisation as an issue
of concern.110 For example, in its 2006 conclusions and recommendations
with respect to Peru, the Committee expressed its concern at reports of
women undergoing involuntary sterilization procedures.111 Further, in its
2004 conclusions and recommendations with respect to the Czech Republic,
IDN/CO/2 (2 July 2008) [16]; Committee against Torture, Conclusions and Recommendations on
Chad, 42nd sess, UN Doc CAT/C/TCD/CO/1 (4 June 2009) [30].
106 Committee against Torture, Concluding Observations on Australia, 40th sess, UN Doc CAT/C/
AUS/CO/3 (22 May 2008) [33]. See also: the CAT Committee’s 2011 Concluding Observations
on Ireland: Committee against Torture, Concluding Observations on Ireland, 46th sess, UN Doc
CAT/C/IRL/CO/1 (17 June 2011) [25].
107 Committee against Torture, Conclusions and Recommendations on Japan, 38th sess, UN Doc
CAT/C/JPN/CO/1 (3 August 2007) [25].
IDN/CO/2 (2 July 2008) [16].
109 Committee against Torture, Conclusions and Recommendations on Greece, 33rd sess, UN Doc
CAT/C/CR/33/2 (10 December 2004) [6(l)]; Committee against Torture, Concluding Observations
on China, 41st sess, UN Doc CAT/C/CHN/CO/4 (12 December 2008) [27]; Committee against
Torture, Concluding Observations on Paraguay, 47th sess, UN Doc CAT/C/PRY/CO/4-6 (14
December 2011) [21].
110 Chapter 10 provides an analysis of the general approach of the CAT Committee to the issue of
involuntary sterilisation.
PER/CO/4 (25 July 2006) [23].
Public official 171
the Committee specifically expressed concern about ‘[a]llegations regarding
some incidents of uninformed and involuntary sterilizations of Roma women,
as well as the Government’s inability to investigate due to insufficient identi-
fication of the individual complainants.’112 Concern regarding a State’s failure
to investigate and prosecute the actions of private actors is also apparent in
the Committee’s noting of the Czech Republic’s inaction in response to ‘arson
attacks against Roma homes.’113 These statements indicate a willingness to
attribute State responsibility to pain and suffering caused by private actors
where the State has failed to act to prevent or investigate properly such pain
and suffering. Therefore, it would seem that the attitude expressed by the
CAT Committee in its concluding observations suggests that where the State
fails to act to prevent, investigate or punish violence against women in the
form of involuntary sterilisation procedures, any pain or suffering resulting
from such procedures may be imputed to the State.
4 Conclusion
For conduct to amount to torture pursuant to the definition contained in arti-
cle 1 of CAT, severe pain or suffering must be ‘inflicted by or at the instiga-
tion of or with the consent or acquiescence of a public official or other person
acting in an official capacity.’ This requirement has been referred to through-
out this chapter as the ‘public official’ requirement. In this chapter, it has
been argued that legal restrictions on abortion and involuntary sterilisation
procedures that take place in public hospitals or by State-employed medical
personnel meet this requirement given that, in both circumstances, there is
a direct link between the State and any suffering experienced by the woman
in question. Further, it has been demonstrated that the CAT Committee is
embracing an approach to the ‘public official’ requirement that is in line with
the ‘due diligence’ approach of the broader international human rights regime
to the question of State responsibility for torture and CIDT. Consequently, it
is submitted that a State may be held responsible, even without a direct link,
where it has failed to exercise ‘due diligence’ and has failed to act to prevent,
investigate or punish conduct that would otherwise amount to torture. On
this basis, it would seem that the ‘public official’ requirement is met when
a State fails to exercise ‘due diligence’ in relation to involuntary sterilisation
procedures performed by private actors.
Doc CAT/C/CR/32/2 (3 June 2004) [86(k)].
113 Committee against Torture, Concluding Observations, 48th sess, UN Doc CAT/C/CZE/CO/4-5
(13 July 2012) [11].
7 ‘Powerlessness’
such purposes as obtaining from him or a third person information or
a confession, punishing him for an act he or a third person has com-
mitted or is suspected of having committed, or intimidating or coerc-
ing him or a third person, or for any reason based on discrimination of
any kind, when such pain or suffering is inflicted by or at the instiga-
tion of or with the consent or acquiescence of a public official or other
person acting in an official capacity. It does not include pain or suffer-
ing arising only from, inherent in or incidental to lawful sanctions.1
1 Introduction
The previous chapters in this book have considered each element of the
definition of torture set out in article 1 of the Convention against Torture
and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT)
and discussed whether restrictions on abortion and involuntary sterilisation
procedures may fall within each element of that definition. Manfred Nowak,
the United Nations Special Rapporteur on torture and other cruel, inhuman
or degrading treatment or punishment (Special Rapporteur) from 2004 to
October 2010, has asserted that there is an additional requirement that is not
explicitly stated in the article 1 definition – the requirement of ‘powerless-
ness.’ According to Nowak, ‘torture presupposes a situation of powerless-
ness of the victim.’2 In his view, the element of ‘powerlessness’ is not only
established in situations in which a person is deprived of personal liberty,
Commentary (Oxford University Press, Oxford/New York, 2008) 76; Manfred Nowak, Report of
the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, UN
Doc A/63/175 (28 July 2008) [50]; Manfred Nowak, ‘What Practices Constitute Torture?: US
and UN Standards’ (2006) 28 Human Rights Quarterly 809, 832.
‘Powerlessness’ 173
although this is the usual context, but arises in any context in which ‘the
victim is under the total control of another person.’3 For example, ‘it is often
circumstances external to the individual that render them “powerless”, such
as when one’s exercise of decision-making and legal capacity is taken away by
discriminatory laws or practices and given to others.’4
The first section of this chapter explores the notion that the victim must be
powerless at the time when severe pain or suffering is inflicted in order for the
conduct in question to constitute torture. The second section of this chapter
considers whether women who are legally denied access to abortion services or
who are subjected to involuntary sterilisation procedures may be considered
‘powerless’ for this purpose.
2 Additional requirement of ‘powerlessness’?
(a) Approach under CAT

The purpose of this section is to explore the notion that the article 1 defini-
tion of torture is based on the supposition of a situation of ‘powerlessness’;
that ‘powerlessness’ is, in fact, an implicit criterion for the offence of torture.
It seems that the recurrent theme of ‘powerlessness’ is largely assumed and
therefore unacknowledged by many scholars. For example, neither Ahcene
Boulesbaa nor Nigel Rodley raises this factor in their respective examinations
of the definition of torture.5 In many ways, it seems too obvious to raise as a
point of discussion. After all, if a victim has any power, he or she will use that
power to avoid torture. Thus the fact of the intentional infliction of severe
pain or suffering logically suggests a situation of ‘powerlessness’ on the part
of the victim; only a situation of ‘powerlessness’ on the part of the victim
could give rise to the intentional infliction of severe pain or suffering upon
that victim.
J Herman Burgers and Hans Danelius indicate that ‘powerlessness’ on the
part of the victim is not a part of the formal criteria for the prohibition of
torture, stating that ‘the definition contains no particulars as to the victims’
of acts of torture.6 Nevertheless, despite the absence of such particulars in
Treatment or Punishment, UN Doc A/63/175 (28 July 2008) [50]; Manfred Nowak, ‘What Practices
Constitute Torture?: US and UN Standards’ (2006) 28 Human Rights Quarterly 809, 832.
Treatment or Punishment, UN Doc A/63/175 (28 July 2008) [50].
5 See: Ahcene Boulesbaa, ‘Analysis and Proposals for the Rectification of the Ambiguities Inherent
in Article 1 of the U.N. Convention on Torture’ (1990) 5 Florida International Law Journal 293;
Ahcene Boulesbaa, The UN Convention on Torture and the Prospects for Enforcement (Kluwer Law
International, The Hague, 1999); Nigel S Rodley, ‘The Definition(s) of Torture in International
Law’ (2002) 55 Current Legal Problems 467.
article 1, they conclude that ‘this does not imply that the category of victims
is infinite.’7 In clarifying what they mean when they refer to the category of
victims to whom the definition applies, they assert that ‘the victims must
be understood to be persons who are deprived of their liberty or who are at
least under the factual power or control of the person inflicting the pain or
suffering.’8 Further, Desmond Manderson, in his article refuting the view that
torture is justifiable under exceptional circumstances, emphasises that ‘the
whole power of torture comes from the absolute reduction of one party to pure
power and the other to pure powerlessness.’9 He goes on to state that ‘torture
is not simply pain. It is the experience of absolute powerlessness that reduces
the victim, in their own eyes as well as their torturer’s, to an animal, a body
without will or dignity of any kind. It is the destruction of identity.’10 Thus
in Manderson’s view, ‘powerlessness’ is not simply an element of torture but
goes to the essence of what constitutes torture.
An analysis of the case law of the Committee against Torture (CAT
Committee) does not significantly add to this discussion. The few instances
in which the CAT Committee has decided that a State has violated article 1
of the Convention have involved traditional forms of police brutality. They
have involved torture in its paradigmatic form of interrogation or deten-
tion where the victim is under the complete control of the torturer. While
the victim in each of these cases may be regarded as powerless, it cannot
be inferred that the CAT Committee regards ‘powerlessness’ of the victim
as an implicit requirement given that the Committee does not choose the
individual communications that come before it. In other words, whereas
the element of ‘powerlessness’ has been present in each case in which the
CAT Committee has found a violation of article 1, the Committee has never
invoked an absence of ‘powerlessness’ as its reason for deciding that article 1
has not been violated.
Nonetheless, it is useful to note that the Committee has on occasion indi-
cated that the ‘powerlessness’ of the victim is a relevant consideration. For
example, in the case of VL v Switzerland,11 the CAT Committee decided that
the complainant was at risk of being subjected to torture based on evidence
that she had in the past suffered from various forms of sexual violence per-
petrated by police outside formal detention facilities. The Committee noted
that ‘[i]n assessing the risk of torture in the present case, the Committee
9 Desmond Manderson, ‘Another Modest Proposal’ (2005) 10(2) Deakin Law Review 640, 646.
10 Desmond Manderson, ‘Another Modest Proposal’ (2005) 10(2) Deakin Law Review 640, 647.
(22 January 2007).
considers that the complainant was clearly under the physical control of
the police even though the acts concerned were perpetrated outside formal
detention facilities.’12 Accordingly, while the Committee has not explicitly
stated that ‘powerlessness’ of the victim is a necessary element of the offence
of torture, it seems that ‘powerlessness’ of the victim at least increases the
likelihood of conduct constituting torture.
In addition, comments of the Human Rights Committee (HRC) are some-
what helpful. In a number of concluding observations, the HRC has expressed
concern regarding ‘torture and other abuses of power’ by public officials.13
The use of the word ‘other’ clearly indicates that the HRC views torture as
an abuse of power. Thus it seems that the HRC is also of the view that an
imbalance of power is inherent in the relationship between the torturer and
the tortured. Accordingly, whereas the HRC does not go so far as to explicitly
require that ‘powerlessness’ of the victim be established for conduct to con-
stitute torture, it has expressed the view that a power imbalance is necessary
for conduct to amount to torture. From a gendered perspective, a number of
scholars have invoked this notion of abuse of power when arguing that inti-
mate partner violence and rape constitute torture in certain circumstances.
This is discussed in the following section.
(b) Intimate partner violence and rape: examples of ‘powerlessness’ from

a gendered perspective
(i) Intimate partner violence

I have already mentioned at various points in this book that a number of
feminist scholars have advocated for a conceptualisation of intimate partner
violence as torture.14 This argument is in part based on the ‘powerlessness’
of women who are subjected to severe intimate partner violence. Rhonda
Copelon begins her ground-breaking article on this subject with the story of
one woman, Molly, whose husband isolates her and abuses her physically, sex-
ually and emotionally.15 As time progresses, the abuse becomes increasingly

(22 January 2007) [8.10].
13 See for example: Human Rights Committee, Concluding Observations on Uzbekistan, 71st sess,
UN Doc CCPR/CO/71/UZB (26 April 2001) [79]; Human Rights Committee, Concluding
Observations on Syrian Arab Republic, 71st sess, UN Doc CCPR/CO/71/SYR (24 April 2001) [81];
Human Rights Committee, Concluding Observations on Viet Nam, 75th sess, UN Doc CCPR/
CO/75/VNM (5 August 2002) [82].
14 See for example: Chapter 6. Scholars who advocate for a conceptualisation of intimate partner
violence as torture generally distinguish between severe intimate partner violence, which consti-
tutes torture, and other forms of intimate partner violence which do not constitute torture. For
a discussion of this distinction see: Bonita C Meyersfeld, ‘Reconceptualizing Domestic Violence
in International Law’ (2003) 67 Albany Law Review 371.
(1994) 25 Columbia Human Rights Law Review 291.
severe. At various points in the story, Copelon emphasises Molly’s ‘pow-
erlessness’. For example, she states that ‘Molly stayed because Jim said he
would kill her family if she left.’16 Further, ‘Jim said he’d see to it that she
never managed to leave with the baby’ and ‘she did not think she could get
away with the baby without someone getting killed.’17 In this way, Copelon
employs a realistic example of the total domination of a woman who is sub-
jected to severe intimate partner violence to argue for the conceptualisation of
intimate partner violence as torture.
Copelon then proceeds to deconstruct the CAT definition of torture with
a view to demonstrating why such violence should be categorised as torture
pursuant to the article 1 definition.18 As part of her analysis of the various
aspects of the definition of torture, Copelon notes the element of ‘powerless-
ness.’ For example, when discussing the requirement for ‘severe pain or suffer-
ing’ Copelon asserts that ‘torture is a context and process of domination and
not simply, or even necessarily, a distinct set of brutal acts.’19 She observes
that a lack of financial independence and support systems together with a fear
that the abuser will pursue and harm them act as ‘concrete constraints’ against
women who wish to leave abusive relationships.20 Similarly, Copelon raises
the notion of ‘powerlessness’ when arguing that intimate partner violence
falls within the prohibited purposes set out in article 1. When discussing the
purposes of interrogation, punishment and intimidation Copelon asserts that
‘[i]nterrogation is not a necessary element of violence against women, but
it is a common one, and its purpose, as in torture, is not truth, but power’;
that ‘intimate violence is a systemic form of punishment which … serves an
absolutist system of power’ and places women in a situation of complete sub-
ordination.21 Similarly, when discussing intimate partner violence as a form
of discrimination against women, Copelon states that ‘domestic violence is
one of the most effective forms of subordination.’22 Further, when considering
the ‘public official’ requirement in the article 1 definition of torture, Copelon
18 Such an analysis of intimate partner violence as torture is an example of a feminist challenge to
the gendered nature of international law. For a more detailed discussion of the gendered nature
of international law and the mechanisms that have been invoked to challenge the male-centric
structure and content of international law see Chapter 1.
(1994) 25 Columbia Human Rights Law Review 291, 340. For a discussion of restrictions on repro-
ductive freedom as a form of discrimination against women see Chapter 5.
compares the domination, control and power of ‘official’ torturers with that of
abusers in the domestic context.23
Catharine MacKinnon is another feminist scholar who emphasises the ele-
ment of ‘powerlessness’ in her argument advocating for a conceptualisation of
intimate partner violence as torture. In fact, she argues that intimate partner
violence, pornography and rape may all be viewed through the lens of torture
discourse.24 In constructing her argument, she observes that ‘[f]or torture to
work, the absolute power of the torturer must be established.’25 MacKinnon
then proceeds to demonstrate the ‘powerlessness’ of women subjected to inti-
mate partner violence. As does Rhonda Copelon, MacKinnon describes the
experiences of individual women to illustrate her point. For example, she
recounts the story of Jayne Stamen who was abused by her husband. Jayne
describes horrific physical, sexual and emotional abuse and, as part of her
statement, recalls that she ‘had no place to run as I never had any money of
my own. He cut off the phone which was my only contact with the outside
world.’26 This example of ‘powerlessness’ is slightly different in form to the
‘powerlessness’ that victims of torture, as traditionally conceptualised, experi-
ence. For example, in the case of intimate partner violence, the victim’s prison
is her home rather than a jail cell. However, in substance the ‘powerlessness’
of a victim of severe intimate partner violence may be strikingly similar to the
‘powerlessness’ of a detainee being interrogated by prison officials.
Thus when viewed through a gendered lens, the thread of ‘powerlessness’
runs through both torture as traditionally conceptualised and intimate part-
ner violence as torture. By viewing the commonalities between torture in its
paradigmatic form and torture in modes of behaviour (such as severe inti-
mate partner violence) that disproportionately affect women, the male-centric
conceptualisation of the prohibition of torture can effectively be challenged.27
(ii) Rape
According to Radhika Coomaraswamy, former Special Rapporteur on vio-
lence against women, its causes and consequences (Special Rapporteur on
(1994) 25 Columbia Human Rights Law Review 291, 344–346. For a discussion of the ‘public
official’ requirement in the context of restrictions on reproductive freedom see: Chapter 6.
Publishers, Dordrecht, 1993).
27 See: Chapter 1 for a discussion of the gendered nature of international law and the different
approaches to challenging the male-centric system.
violence against women) numerous international authorities have recog-
nised rape as a form of torture.28 For example, both the European Court of
Human Rights (European Court) and the Inter-American Commission on
Human Rights (Inter-American Commission) have found that rape may con-
stitute torture in certain circumstances.29 Further, the International Criminal
Tribunals have also developed significant jurisprudence categorising rape as
torture.30 An example of a discussion of the power dynamic inherent in rape
as torture is apparent in the European case of Aydın v Turkey,31 in which
the European Court found that the rape of a 17-year-old girl by a member
of the Turkish security forces constituted torture. While Sukran Aydın was
subjected to other forms of torture (besides the rape), the court clearly stated
that the rape alone was sufficient to constitute torture.32 Significantly, the
court in this case viewed the rape of a ‘detainee’ as being especially grave
‘given the ease with which the offender can exploit the vulnerability and
weakened resistance of his victim.’33 Thus the European Court clearly viewed
the ‘powerlessness’ of the victim as contributing to its finding that the rape
constituted torture.
The development of the concept of rape as torture is particularly significant
in the context of the current discussion given that, as briefly discussed in
Chapter 1, it is an example of a somewhat successful challenge to the male-
centric structure and content of international (criminal) law. It is also particu-
larly significant in the context of this discussion given the position of many
feminists that the offence of rape is an offence of power. This argument takes a
number of forms. For example, at one end of the spectrum Susan Brownmiller
has argued that rape is about power, violence, conquest and domination
and is not about sex.34 In her view, rape ‘is nothing more or less than a con-
scious process of intimidation by which all men keep all women in a state
of fear.’35 At the other end of the spectrum are feminists such as Catharine
MacKinnon, who argue that both rape and heterosexual sex generally reflect
the power imbalance between men and women in society at large as both
Consequences, UN Doc E/CN.4/1999/68/Add.4 (21 January 1999) [16]–[21]. The notion of rape
as torture is also considered in Chapters 3, 5 and 6.
29 See for example: MC v Bulgaria (2003) XII Eur Court HR 39272/98; Aydın v Turkey (1997) VI
Eur Court HR 23178/94; Mejía v Perú [1996] Inter-Am Comm HR (ser l) No 5/96.
30 See for example: Prosecutor v Akayesu Case No ICTR-96-4-T (2 September 1998) (Judgment),
Prosecutor v Furundžija Case No IT-95-17/1-T (10 December 1998) (Judgment), Prosecutor v
Mucić, Delić, Landžo & Delalić Case No IT-96-21-T (16 November 1998) (Judgment).
31 (1997) VI Eur Court HR 23178/94.
32 Aydın v Turkey (1997) VI Eur Court HR 23178/94 [86].
33 Aydın v Turkey (1997) VI Eur Court HR 23178/94 [83].
34 Susan Brownmiller, Against Our Will: Men, Women and Rape (Simon & Schuster, New York,
1975).
35 Susan Brownmiller, Against Our Will: Men, Women and Rape (Simon & Schuster, New York,
1975) 15.
rape and heterosexual sex occur under conditions of male dominance.36 In
MacKinnon’s view, power and violence are inherent characteristics of both
rape and heterosexual sex. Therefore, in her view, the power differential
between rapist and victim is not the factor that distinguishes rape from sex as
it is present in both rape and sex.37
It has also been argued that both these positions are quite extreme and fail
to reflect the real difference between sex and rape. For example, Ann Cahill
critiques MacKinnon’s position, arguing that while society is structured in
a way that entrenches and perpetuates gender inequality, women still retain
some agency and autonomy albeit not on an entirely equal platform to men.
In her view, the reality that ‘sexuality takes place in such a context [of gender
inequality] does not indicate that (hetero)sexuality and women’s experi-
ences of (hetero)sexuality are wholly derivative of or strictly reducible to that
inequality.’38 Cahill also critiques Brownmiller’s position, arguing that while
rape is clearly an expression of domination, the fact that it is also a sexual
act cannot be ignored as ‘sexuality is the medium of the power and violence
that are imposed on the victim.’39 Similarly, Winifred Woodhull has argued
that both sex and power are integral to the act of rape; rape is an exercise of
power and domination that manifests itself in a sexual way. She states that
‘the urgency of analyzing the complex relations between sexuality and power
is underscored by the fact that rape, and the fear of rape, are experienced by
women sexually, not just as domination … sexuality, like power, is central to
the experience of rape.’40
These few examples of the various feminist approaches to the issue of rape
illustrate that, despite the differences between the approaches of feminists to
the question of rape, most feminists agree that rape is about power. Some fem-
inists, like Susan Brownmiller, view rape as being about power and not sex.
Other feminists, like Ann Cahill and Winifred Woodhull, view rape as being
about power and sex. Still other feminists, like Catharine MacKinnon, view
all heterosexual sex (including sex through rape) as being about power. Thus
for all of these feminists, power and domination are central elements of rape.
As already stated, an examination of rape as an offence involving an abuse of
power and subordination of the victim is relevant to the current discussion
given that rape has been recognised as torture in certain circumstances. The
fact that in certain contexts and in certain fora rape, a (for the most part)
gender-based crime whose central component is the abuse of power, is now
36 Catharine MacKinnon, Toward a Feminist Theory of the State (Harvard University Press, Boston,
1991) 174.
1991) 178.
38 Ann J Cahill, Rethinking Rape (Cornell University Press, Ithaca, 2001) 46.
39 Ann J Cahill, Rethinking Rape (Cornell University Press, Ithaca, 2001) 27.
40 Winifred Woodhull ‘Sexuality, Power, and the Question of Rape’ in Irene Diamond and Lee
Quinby, Feminism and Foucault: Reflections on Resistance (Northeastern University Press, Boston,
1988) 171–172.
regarded as torture serves to reinforce the notion that ‘powerlessness’ is a core
element of the offence of torture and proffers the possibility that other gender-
based transgressions will also be viewed in this light.41
(c) Non-legal literature

The view that torture presupposes a situation of ‘powerlessness’ on the part of
the victim is also expressed in non-legal literature. The Stanford Encyclopedia
of Philosophy entry on torture describes a number of practices that are con-
ventionally viewed as constituting torture, such as burning at the stake and
inserting a needle under fingernails, and observes that control of the torturer
over the victim’s body is a precondition of these practices. It then proceeds
to specifically include, in its definition of torture, the requirement that the
victim be ‘defenceless’ and the requirement that the conduct involve the ‘sub-
stantial curtailment of the exercise of the person’s autonomy.’42 Further, the
discussion presupposes the ‘powerlessness’ of torture victims and emphasises
the ‘asymmetrical power relationship’ between victim and torturer. Thus the
following illustration is provided:
[I]f A intentionally sears B with hot irons and B consented to this action,
then B has not been tortured. Indeed, even if B did not consent, but B could
have physically prevented A from searing him then B has not been tortured.
That is, in order for it to be an instance of torture, B has to be defenceless.43
The encyclopedia then connects this element of ‘powerlessness’ with its expla-
nation for why torture is wrong. It provides two core grounds for the immoral-
ity of torture: the severity of pain or suffering and the ‘intentional, substantial
curtailment of individual autonomy’. This second ground is clearly linked to
the predicament of ‘powerlessness’ experienced by the torture victim.44
When one considers modes of torture that have been used (and in some
cases continue to be used) in various ‘civilisations’, countless atrocities come
to mind. William Schulz describes various methods that have been used at
different points in history.45 He describes King Leopold’s Congo in which
41 It should be noted that the former Special Rapporteur, when discussing the notion of ‘powerless-
ness’, has specifically stated that ‘[r]ape is an extreme expression of this power relation, of one
person treating another person as merely an object.’ See: Manfred Nowak, Report of the Special
Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, UN Doc A/
HRC/7/3 (15 January 2008) [28].
42 Seumas Miller, ‘Torture’ in Edward N Zalta (ed), The Stanford Encyclopedia of Philosophy (Fall
2008 ed) http://plato.stanford.edu/archives/fall2008/entries/torture/ at 19 April 2013.
45 William F Schulz, ‘Introduction’ in William F Schulz (ed), The Phenomenon of Torture (University
people were flogged with a whip made of ‘raw, sun-dried hippopotamus
hide.’46 He describes Pinochet’s Chile in which women were raped by men
infected with syphilis and were ‘sexually abused by dogs.’47 He describes the
Brazilian practice of placing naked prisoners in cells with a boa constrictor
and the United States practice of waterboarding.48 In all these examples, it is
clear that the victim is powerless.
The testimonies of torture victims also emphasise the ‘powerlessness’
inherent in their circumstances. Eric Lomax, who was taken prisoner by
the Japanese during World War II, provides an account of his experience
of torture. He describes standing in the hot sun for 12 hours, watching his
fellow prisoners being savagely beaten, following which he suffered the same
fate. He describes the sense of there being ‘no escape’ and the ‘utter despair of
helplessness.’49 Consuelo Rivera-Fuentes, when describing her experience of
torture under the Chilean military government of Augusto Pinochet, states
that ‘scientific language cannot describe what I felt and remembered: anxiety,
humiliation, powerlessness, my potty-training down the drain in a string of
jerks and tears, degradation to the point of feeling like a “speck in the uni-
verse,” no/body.’50 Kate Millett describes the power dynamic inherent in the
relationship between the torturer and the tortured as follows:
Volition is gone entirely, will is useless. You are a creature now, their
creature. And they are free to torment you. Any way they wish. They can
now inflict any pain or deprivation on you, and for any reason: amuse-
ment, boredom, habit, even simple routine, the routine by which you
will be broken, piece by piece ... Determined victims produce still more
determined torturers; a battle of wills between absolute power and absolute
powerlessness is a foregone conclusion.51
Thus in addition to the legal literature discussed earlier, non-legal litera-

ture also emphasises the situation of ‘powerlessness’ that envelops victims of
torture. The next section of this chapter considers whether this element of
‘powerlessness’ is met in the context of involuntary sterilisation procedures
and restrictions on abortion.
49 Eric Lomax, ‘Beaten’ in William F Schulz (ed), The Phenomenon of Torture (University of
Pennsylvania Press, Philadelphia, 2007) 49, 49–52.
50 Consuelo Rivera-Fuentes and Lynda Birke, ‘Talking With/In Pain: Reflections on Bodies under
Torture’ (2001) 24(6) Women’s Studies International Forum 653, 660.
51 Kate Millett, ‘The Politics of Cruelty’ in William F Schulz (ed), The Phenomenon of Torture
(University of Pennsylvania Press, Philadelphia, 2007) 163, 163–164 (emphasis added).
3 ‘Powerlessness’ in the context of restrictions on reproductive

freedom
(a) Overview
Before considering whether women who are legally prevented from accessing
abortion services or who are subjected to involuntary sterilisation procedures
may be considered powerless, it is useful to pause and consider the meaning
of ‘powerlessness’. The Oxford English Dictionary defines ‘powerless’ as ‘with-
out power, strength, or ability; wholly unable to act, influence, etc; helpless,
impotent.’52 The Macquarie Dictionary defines ‘powerless’ as ‘lacking power to
act; helpless.’53 Both of these definitions include the notion of helplessness and
of an inability to act. I argue that women who are legally prevented from access-
ing abortion services or who are subjected to involuntary sterilisation proce-
dures are powerless. In the case of restrictions on abortion, women are helpless
in that they are unable to act to terminate their pregnancies safely. In the case of
involuntary sterilisation procedures, women are helpless in that they are unable
to act to retain their bodily integrity (in this case, their fertility). Further, while
deprivation of liberty in the sense of detention in prison (for example) is the
traditional form of ‘powerlessness’ in the context of torture discourse, it is not
the only way in which a victim can be rendered powerless. J Herman Burgers
and Hans Danelius seem to acknowledge this reality when they state that ‘the
victims must be understood to be persons who are deprived of their liberty or
who are at least under the factual power or control of the person inflicting the pain or
suffering.’54 Similarly, Manfred Nowak has posited the view that the element
of ‘powerlessness’ is not only established in situations in which a person is
deprived of personal liberty, although this is the usual context, but arises in
any context in which ‘the victim is under the total control of another person.’55
In his January 2008 report to the Human Rights Council, Nowak consid-
ers the conceptualisation of restrictions on reproductive freedom as torture.56
After suggesting that ‘powerlessness’ be viewed as an additional criterion in the
definition of torture, he discusses ‘denial of reproductive rights’ under a section
entitled ‘[w]hat constitutes torture?.’57 As part of this discussion Nowak men-
52 Oxford English Dictionary Online (2009) dictionary.oed.com at 19 April 2013.

53 The Macquarie Dictionary (2009) macquariedictionary.com.au at 19 April 2013.
(Martinus Nijhoff Publishers, Dordrecht, 1988) 120 (emphasis added).
Treatment or Punishment, UN Doc A/63/175 (28 July 2008) [50]; Manfred Nowak, ‘What
Practices Constitute Torture?: US and UN Standards’ (2006) 28 Human Rights Quarterly 809,
832.
Treatment or Punishment, UN Doc A/HRC/7/3 (15 January 2008) [37]–[39].
tions denial of access to abortion in cases of rape as well as involuntary sterilisa-
tion.58 Thus it seems as if the former Special Rapporteur views restrictions on
abortion (at least in certain contexts) and involuntary sterilisation procedures
as satisfying the ‘powerlessness’ criterion. As noted earlier in this chapter, of
particular relevance is Nowak’s view that ‘it is often circumstances external
to the individual that render them “powerless”, such as when one’s exercise of
decision-making and legal capacity is taken away by discriminatory laws or
practices and given to others.’59 This chapter presents the view that restrictions
on reproductive freedom take away the individual decision-making and legal
capacity of individual women thus rendering them powerless.
When considering the restrictions on reproductive freedom that are the
focus of this book, it seems that women who are legally prevented from access-
ing abortion services and who are subjected to involuntary sterilisation pro-
cedures may be rendered powerless by a number of factors including culture,
religion, family, finances, social workers and counsellors. In addition to these
factors, there are two primary factors that operate to render women powerless:
the power of law and the power of the medical profession. ‘Together, law and
medicine operate to enforce coercive gender norms on women.’60 These two
disciplines combine to oppress women in numerous ways. For example, the
legal system often unquestioningly accepts medical testimony that is based
on biased assumptions about women thereby ‘adding legal force to the errors
embedded in medical “truths”’.61 Nancy Ehrenreich uses the example of court
ordered caesarean sections in the United States to demonstrate this point. She
states that:
Refusal of a Cesarean not only challenges applicable gender categories

but also violates the prevailing norm of obedience to medical authority
… [And s]ince medical authority is itself constituted male authority …
[these women] are rebelling against not only medicine but patriarchy as
well. [But the fact is] … obscured by the ‘neutral’ image of science. Thus,
judges accept unquestioningly doctors’ assessments of these situations.62
While acknowledging the other mechanisms by which women are rendered

powerless, the dominance of the power of law and the power of medicine
Treatment or Punishment, UN Doc A/63/175 (28 July 2008) [50]. It should be recalled that
Chapter 5 discusses the discriminatory nature of laws restricting access to abortion and involun-
tary sterilisation procedures.
62 Nancy Ehrenreich, ‘The Colonization of the Womb’ in Nancy Ehrenreich (ed) The Reproductive
Rights Reader (New York University Press, New York, 2008) 391, 397 (emphasis added).
together with the role that both law and medicine play with respect to
restrictions on abortion and involuntary sterilisation dictate the focus of this
part of the chapter. It makes sense to discuss the power of medicine and the
power of law in the same context, given that medicine and law are both the
subjects of prestigious professions whose practitioners typically possess high
social status; both lay claim to truth and hence, in their individual spheres,
wield enormous power. Laws that restrict a woman’s access to abortion render
her powerless in that they prevent her from acting on her desire to safely
terminate her pregnancy. Further, when a woman’s access to abortion is
legally restricted subject to the medical profession’s assertion that her health
is endangered by the pregnancy, such a woman is rendered powerless by the
law and the medical profession. In cases of involuntary sterilisation, where
such sterilisation is sanctioned by law, women are rendered powerless by the
power of law. In the more common scenario in which involuntary sterilisa-
tion procedures are not explicitly condoned by law but are frequently per-
formed, doctors render powerless the women whom they sterilise without full
informed consent; these women are deprived of their right to decide whether
or not to bear children.
(b) Restrictions on abortion
(i) Power of the law

Much has been written about the nature of ‘power’ from fields as diverse
as law, philosophy and sociology. All these disciplines have also struggled
to come to terms with the relationship between law and power. A detailed
exploration of this relationship is a complex multidisciplinary task that is
beyond the scope of this book. Nonetheless, for the purpose of exploring the
argument that the element of ‘powerlessness’ is established in circumstances
where the law restricts access to abortion, it is necessary to engage in at least
a brief discussion of the power wielded by the law.
To many, the power of law is obvious. After all, it is those in power who
decide what is law.63 In other words, ‘law has now come to be recognised as
an agency of power; an instrument of government. Insofar as government
is centralised in the state, law appears exclusively as the law of the state.’64
Stephen Bottomley and Simon Bronitt present a complex picture of the rela-
tionship between law and power. They identify three ways of approaching
this relationship: law as protector, law as a tool of empowerment and law as
a tool of disempowerment.65 The idea of law as protector or law as security is
63 Stephen Bottomley and Simon Bronitt, Law in Context (3rd ed, Federation Press, Sydney, 2006)
186.
64 Roger Cotterrell, The Sociology of Law (2nd ed, Butterworths, London, 1992) 44.
187–188.
the idea that the power of law acts so as to protect society and ensure security
for the public at large.66 The idea of law as a tool of empowerment is the idea
that ‘law makes power available for people to use in their everyday lives.’67 For
example, a person may use the law of negligence to receive compensation for
injury suffered. The idea of law as a tool of disempowerment is the idea that
people ‘often experience law as power being exercised over them.’68 Roger
Cotterrell describes this experience as involving:
[F]eelings of vulnerability and insecurity, of being subject to official

control or interference. It is often an experience of being threatened in
precise, calculated, and complex ways by other individuals, agencies or
collectivities, which are able to invoke law against the person ... It may
also be an experience of being made helpless by the technicality and
obscurity of regulations and practice, which one does not understand but
which nevertheless envelop and entrap the individual.69
It is this third approach to the relationship between law and power that is par-
ticularly relevant to the current discussion. Nonetheless, while this chapter
focuses on one aspect of the relationship between law and power (that is, law
as a tool of disempowerment), it is important to bear in mind that the rela-
tionship is in fact extremely complex. As Bottomley and Bronnit note, ‘law is
an instrument for exerting power; law is a check upon power; law legitimates
power; law is a source of power; law is a product of power; law is power; and
law is but one aspect of power.’70
Despite the complexity of the relationship between law and power, it is
clear that ‘legal rules frequently serve the needs and perspectives of those
with socioeconomic power in society.’71 In the context of reproduction, the
law serves ‘as an integral part of the creation, perpetration, and obfuscation of
women’s inequality and subordination.’72 Carol Smart, in her seminal book
entitled Feminism and the Power of Law, engages in a feminist critique of the
power of law. She argues that:
188.
187.
187.
69 Roger Cotterrell, Law’s Community: Legal Theory in Sociological Perspective (Clarendon Press,
Oxford, 1995) 4–5.
197.
[T]here is a congruence between law and what might be called a ‘mas-
culine culture’ and that in taking on law, feminism is taking on a great
deal more as well. Ironically, it is precisely for this reason that law should
remain an important focus for feminist work, not in order to achieve law
reforms (although some may be useful) but to challenge such an impor-
tant signifier of masculine power.73
Smart disagrees with Foucault’s assessment of law as diminishing in power
and argues that despite the increase in alternative sources of power and in
non-legal modes of regulation, law remains powerful; more specifically, law
remains a formidable form of masculine power.74 She draws on Foucault’s
focus on non-legal forms of power, such as scientific knowledge, and compares
them with the power of law. For example, she asserts that power is associated
with scientific knowledge because scientific knowledge lays claim to ‘truth.’
Similarly, although law is not a science it also lays claim to ‘truth’ ‘and in
doing so exercises a power that is not under threat.’75 From a feminist perspec-
tive, the ‘truth’ as presented by law has frequently amounted to a male-centric
perspective of events. This is true of both international law (as discussed in
Chapter 1) and domestic law. For instance, until relatively recently the law in
Australia reflected the view that a man could not rape his wife.76
Catharine MacKinnon takes the argument that law is an expression of the
masculine power of the State even further. In her view, ‘the law sees and treats
women the way men see and treat women. The liberal state coercively and
authoritatively constitutes the social order in the interest of men as a gender
– through its legitimating norms, forms, relation to society, and substantive
policies.’77 A similar way of phrasing these ideas is that:
[T]he state, through law, institutionalizes male power over women
through institutionalizing the male point of view in law. Its first state act
is to see women from the standpoint of male dominance; its next act is
to treat them that way. This power, this state, is not a discreet location,
but a web of sanctions throughout society which ‘control[s] the principal
means of coercion’ that structures women’s everyday lives.78
Thus, in MacKinnon’s view, law is a mechanism by which the State exercises
control over women and entrenches the power imbalance between men and
73 Carol Smart, Feminism and the Power of Law (Routledge, London, 1989) 2.
74 Carol Smart, Feminism and the Power of Law (Routledge, London, 1989) 6–8.
75 Carol Smart, Feminism and the Power of Law (Routledge, London, 1989) 14.
76 It should be noted that by the late 1980s the marital rape immunity had been abolished by
legislation in every Australian State and Territory: Simon Bronitt and Bernadette McSherry,
Principles of Criminal Law (3rd ed, Lawbook Co, Sydney, 2010) 632.
1991) 162.
1991) 169 (citations omitted).
women. The power of law is therefore a reflection of the power of the State
that takes a masculine form. It should be noted that MacKinnon recognises
that law also entrenches other forms of power imbalance, such as hierarchies
based on race and class. This is relevant in the abortion context given that
restrictions on access to abortion have traditionally affected poor women more
severely than rich women.79 Nonetheless, while acknowledging differences
among women and noting the law’s role in entrenching hierarchies based
on gender, class, race and other categories, it remains possible to essentialise
women’s experiences of laws restricting access to abortion.
Mary Boyle views laws restricting access to abortion as one of the many
mechanisms by which men control women’s bodies. In her view, ‘[o]nly
women can have abortions, but access to abortion – or at least to legal
abortion – is controlled largely by men’; ‘[c]ontrol of the procedure can
therefore be seen as part of a larger pattern of control of female sexuality and
reproduction.’80 Boyle therefore views the regulation of abortion as part of the
general pattern of State interference into the lives of individuals and, more
specifically, the lives of women. The United States example is perhaps the
most obvious example of the power of law in the context of abortion. Prior to
the seminal case of Roe v Wade,81 abortion was a State issue – States had the
power to determine whether and in what circumstances abortion was legal.
Many States enacted legislation that severely restricted women’s access to
abortion.82 The law in many States therefore had the effect of disempowering
women. In Roe v Wade,83 the United States Supreme Court declared the right
to abortion to be a constitutionally protected right (in certain circumstances).
This rendered many existing State bans on abortion unconstitutional. The
effect of this one case was to transfer women from a position of ‘powerlessness’
to a position of relative empowerment – women could take some comfort in
the knowledge that they had a constitutionally protected right to abortion.84
79 See for example: Catharine MacKinnon, Toward a Feminist Theory of the State (Harvard University
Press, Boston, 1991) 192; Mary Boyle, Re-thinking Abortion (Routledge, London/New York,
1997) 17.
80 Mary Boyle, Re-thinking Abortion (Routledge, London/New York, 1997) 6–7.
81 410 US 113, 153 (1973).
82 For a detailed discussion of the pre-Roe v Wade legal status of abortion in each State of the United
States see: Center for Reproductive Rights, What if Roe Fell? (November 2007).
83 410 US 113, 153 (1973).
84 It should be noted that many feminists have engaged in a rigorous critique of both the out-
come and reasoning in Roe v Wade 410 US 113, 153 (1973). See for example: Reva Siegel,
‘Reasoning from the Body: A Historical Perspective on Abortion Regulation and Questions of
Equal Protection’ (1992) 44 Stanford Law Review 261; Ruth Bader Ginsburg, ‘Some Thoughts
on Autonomy and Equality in Relation to Roe v Wade’ (1985) 63 North Carolina Law Review
375; Elizabeth Kingdom, ‘Legal Recognition of a Woman’s Right to Choose’ in Julia Brophy
and Carol Smart, Women in Law (Routledge, London, 1985); Catharine MacKinnon, ‘The Male
Ideology of Privacy: A Feminist Perspective on the Right to Abortion’ (1983) 17 Radical America
23. Further, a number of subsequent Supreme Court decisions have been viewed as clawing
back the abortion right. See for example: Gonzales v Carhart 127 S Ct 1610 (2007); Webster v
Reproductive Health Services 492 US 490 (1989).
Laws that restrict women’s access to abortion render women powerless.
They do so by presenting women with what is in essence a ‘Sophie’s choice’.85
In circumstances in which abortion is illegal, a woman confronted with the
reality of an unwanted pregnancy may ‘choose’ to continue with the preg-
nancy or ‘choose’ to subject herself to the risks inherent in obtaining an illegal
abortion.86 This sense of ‘powerlessness’ and desperation is articulated by Jo
Wainer in the introduction to her book Lost: Illegal Abortion Stories:
It is every woman’s nightmare, the question every woman asks at some

time. What if I am pregnant and I can’t raise a child? The nightmare
answer only a generation ago was ‘illegal abortion’, and women were
right to be afraid. Afraid of the stigma, of being found out, of not being
able to get an abortion and, if they did, that they would be prosecuted,
that things would go wrong. To have an abortion was a criminal act,
and women had no legal protection. They walked blindfolded into the
unknown, often alone, their heads full of rumours of pain and suffering.
They had no option.87
In an unsanitised depiction of the predicament of women confronted with
unwanted pregnancies, the book describes the desperation of a woman who
jumped off St Kilda pier and took her three children with her; the anguish
of women who used instruments such as knitting needles and syringes while
attempting to induce their own miscarriages; the fear of women submitting
themselves to the hands of illegal abortionists in possession of varying degrees
of skill and compassion.88 The book also describes the fate of many of these
women who endured hysterectomies, gas gangrene, septicaemia and other
appalling effects of unsafe abortions.89 Some women survived, others did not.
The criminalisation of abortion is therefore an example of the power of the
masculine State to use law as a tool for disempowering women. In this con-
text, law’s power over women is obvious. The enactment of such laws is one
example of the way in which the State represents male interests and rules from
a male perspective. Legal restrictions on access to abortion result in desper-
ate women taking desperate measures resulting in dreadful consequences. In
circumstances in which the criminalisation of abortion is not absolute but is
subject to an exception where the pregnancy may endanger the health of the
woman, law joins with medicine as a tool for disempowering women.
85 The phrase ‘Sophie’s choice’ is taken from a novel, which describes the choice of a female survivor
of Auschwitz who, on arriving at the camp, was forced to choose which of her children would die
immediately in the gas chambers. This kind of extremely difficult choice has become known as
a ‘Sophie’s choice.’ See: William Styron, Sophie’s Choice (Random House, New York, 1979).
86 The negative health ramifications of illegal and unsafe abortions are discussed in Chapter 3.
87 Jo Wainer (ed) Lost: Illegal Abortion Stories (Melbourne University Press, Melbourne, 2006) 1.
88 Jo Wainer (ed) Lost: Illegal Abortion Stories (Melbourne University Press, Melbourne, 2006) 37,
102, 132, 158.
89 Jo Wainer (ed) Lost: Illegal Abortion Stories (Melbourne University Press, Melbourne, 2006) 35,
42, 43.
(ii) Power of medicine90

Deborah’s story provides a chilling example of the power of the medical pro-
fession. Deborah had an abortion in the early 1970s in Victoria, Australia.91
Abortion was still a criminal offence but was allowed when the pregnancy
posed a danger to the physical or mental health of the woman.92 She recalls:
[Her] experience was horrific and expensive. The abortion cost $380
in 1971 – a lot of money when you are on a studentship. I needed the
mandatory psychiatric report and recommendation, and this was perhaps
the most revolting aspect of the experience. I was sexually molested by
the psychiatrist, and had to pay him cash on the spot. He knew my future
depended on his report, that, in a sense, my life was in his hands. If I was
forced to continue with the pregnancy my parents would disown me and
I’d be sacked by the Education Department as unmarried mothers were
against all regulations at that time. I was not in a position to resist the
psychiatrist’s advances, and also too young to understand fully what the
role of a psychiatrist involved.93
This is an extreme example of the power that law and medicine combined
exercise over women when abortion is only allowed where, in a doctor’s opin-
ion, the health of the woman is endangered. Nonetheless, Deborah’s story
clearly illustrates the power imbalance between woman and doctor when a
doctor is given the right to determine whether a woman’s health is sufficiently
endangered by a pregnancy to justify abortion.
Mary Boyle describes the way in which legislation restricting access to
abortion subject to a health exception enables doctors to make decisions
on behalf of their female patients, thereby removing women’s agency and
autonomy from the decision-making process. This legislative model supports
and is supported by the view of women as incapable of making important and
rational decisions. Further, the fact that abortion justified on health grounds
is usually justified pursuant to the ‘mental health’ exception reinforces this
perception of women as ‘weak and vulnerable’. In addition, the ‘health
exception’ entrenches the professional autonomy of the medical profession
and ensures that, in the context of abortion, doctors remain the decision-
makers and women are prevented from making demands of doctors; rather,
women remain beholden to their doctors for allowing them to terminate their
90 For an in-depth discussion of the participation of doctors in acts of torture see: British Medical
Association, Medicine Betrayed: The Participation of Doctors in Human Rights Abuses (Zed Books,
London, 1992); Steven H Miles, Oath Betrayed: America’s Torture Doctors (2nd ed, University of
California Press, Berkeley, 2009).
91 Jo Wainer (ed) Lost: Illegal Abortion Stories (Melbourne University Press, Melbourne, 2006) 124.
92 See: R v Davidson [1969] VR 667 per Menhennitt J.
93 Jo Wainer (ed) Lost: Illegal Abortion Stories (Melbourne University Press, Melbourne, 2006)
124–125.
pregnancies. This power dynamic is particularly relevant in the context of a
medical profession that is traditionally male dominated and in the context of
abortion where all patients are female.94
Sally Sheldon expresses similar sentiments, asserting that legal restrictions
on access to abortion that are subject to a health exception entrench doctors’
control of abortion and constitute the doctor as the ‘“parallel judge” who can
administer and exercise power more quickly and effectively than state-centred
apparatus.’95 She goes on to state that, by giving such power to the medical
profession, the law constructs ‘women seeking abortion as supplicants, who
must go cap in hand to request permission to terminate their pregnancies.
Refusals may result in women carrying unwanted pregnancies to term; they
will certainly result in later terminations.’96 Thus law and medicine interact
to reinforce social values of ownership of women’s bodies and to entrench the
gendered pattern of medical and legal domination.
The British legislation provides a useful example of the operation of a
‘health exception’ to the criminalisation of abortion. Abortion in England
and Wales is governed by the Abortion Act 1967 under which abortion is
illegal subject to a number of exceptions, including that the pregnancy poses
a danger to the woman’s health or life.97 Under this legislation, a woman
can only obtain an abortion if ‘two registered medical practitioners are of the
opinion’ that one of the exceptions to the illegality of abortion is applicable
in the circumstances.98 According to Sally Sheldon, the decision to include
these exceptions in the Abortion Act ‘was less influenced by a desire to extend
women’s reproductive autonomy than by the pressure applied by the medical
profession anxious to tighten its monopoly of control over female reproduc-
tion, and the need for the State to reassert its authority over the existing
94 Mary Boyle, Re-thinking Abortion (Routledge, London/New York, 1997) 71–76. It should be
noted that while over the past few decades there has been an increase in women’s participation
in the medical profession, the profession remains male dominated (particularly at the highest
levels). For example, in the United Kingdom women only account for approximately one-third
of hospital doctors and general practitioners and surgery remains a male preserve with women
constituting only 7% of consultants in 2003. See: Isobel Allen, ‘Women Doctors and Their
Careers: What Now?’ (2005) 331 British Medical Journal 569, 570–571. Another example is
Canada where in 2008 women represented less than half of all family medicine physicians and
less than one-third of all specialist physicians. See: Canadian Institute for Health Information,
Supply, Distribution and Migration of Canadian Physicians, 2008 (2009) 34. Yet another example is
Australia where, as at March 2011, the dean of every medical school in the country is male, with
the exception of the University of Western Sydney’s School of Medicine.
95 Sally Sheldon, ‘The Law of Abortion and the Politics of Medicalisation’ in Jo Bridgeman and
Susan Millns (eds), Law and Body Politics (Dartmouth Publishing Company Limited, Aldershot,
1995) 105, 111.
1995) 105, 119.
97 Abortion Act 1967 (UK) c 87, s1(1).
98 Abortion Act 1967 (UK) c 87, s1(1).
law.’99 She explains that the prohibition on abortion was simply not working
– too many illegal abortions were taking place – thus the State decided to
bring abortion within the ambit of a regulatory medical framework in order
to regain control.100 Further, the Act operates so as to confer protection on the
doctor and to safeguard the doctor’s medical autonomy rather than to confer
substantive rights on a pregnant woman.101 Thus it in fact entrenches the
power imbalance between doctor and patient. In addition, by placing legal
abortion within the medical realm, the Act constructs the type of woman
in need of an abortion as ‘irrational and emotionally unstable’; in need of a
doctor to take control of the decision-making process.102
Thus law and medicine combine to disempower women and to ensure that
power is retained in the hands of the State and the male-dominated medical
profession so as to entrench women’s subordinate status in society. Where
abortion is criminalised, the law operates so as to completely deprive women
of their reproductive autonomy. In such circumstances, a woman will either
accept her ‘powerlessness’ and continue with an unwanted pregnancy or will
desperately grasp at any illegal means to terminate her pregnancy thereby
endangering her health and possibly her life. Where abortion is criminalised
but is subject to a health exception, the law still operates so as to completely
deprive women of their reproductive autonomy. In such circumstances, it is
the doctor who has the power to decide a woman’s fate; to determine whether
she is forced to continue with an unwanted pregnancy or whether she is
granted an abortion. In both circumstances, the woman is unable to make her
own decision freely; she is under the control of law and medicine.
Having discussed the way in which restrictions on abortion disempower
women, the following section will discuss the way in which women who
are subjected to involuntary sterilisation procedures are rendered powerless.
The section begins by briefly discussing the way in which law may facilitate
the performing of involuntary sterilisation procedures. However, the focus
of the next section is on the power of the medical profession rather than the
power of law. This is because the current section has already provided a sig-
nificant discussion of the power of law, much of which applies equally in the
context of legally permissible involuntary sterilisation procedures as it does in
the context of restrictions on abortion. Further, while the law may aid in the
1995) 105, 107.
1995) 105, 107–108.
1995) 105, 108–109.
1995) 105, 109.
facilitation of involuntary sterilisation procedures, involuntary sterilisation
is a particularly compelling example of the power of the medical profession.
It should be noted that just as much of the earlier discussion concerning the
power of law applies equally in circumstances where law sanctions involun-
tary sterilisation, much of the general discussion that follows concerning the
power of the medical profession also applies in the context of restrictions on
abortion.
(c) Involuntary sterilisation

Juan Méndez, the current Special Rapporteur, has discussed this concept of
‘powerlessness’ in the medical context by referring to circumstances in which
‘a person’s exercise of decision-making is taken away and given to others.’103
Specifically mentioning involuntary sterilisation he has noted that ‘medical
treatments of an intrusive and irreversible nature, when lacking a therapeutic
purpose, may constitute torture or ill-treatment when enforced or administered
without the free and informed consent of the person concerned.’104
(i) Power of the law

In circumstances in which the law allows involuntary sterilisation procedures
to be performed, the power of law is obvious in that the law deprives women of
their reproductive autonomy. Laws allowing women to be subjected to involun-
tary sterilisation procedures have been implemented in a number of countries.
For example, under Germany’s Nazi regime approximately 400,000 people
were sterilised in accordance with the Law for the Prevention of Genetically
Diseased Offspring (Gesetz zur Verhütung erbkranken Nachwuchses);105 in 1934
Sweden enacted legislation allowing involuntary sterilisation on eugenic
grounds, this practice continued until the mid-1970s;106 in the United States
in 1968, eugenic sterilisation laws existed in 27 States and in Canada around
the same time the provinces of Alberta and British Columbia both had stat-
utes providing for the sterilisation of ‘mental defectives.’107
105 United States Holocaust Memorial Museum, The Biological State: Nazi Racial Hygiene, 1933–1939
Holocaust Encyclopedia http://www.ushmm.org/wlc/en/index.php?ModuleId=10005143 at
19 April 2013.
106 Alain Drouard, ‘Concerning Eugenics in Scandinavia: And Evaluation of Recent Research and
Publications’ (1999) 11(1) Population 261, 265–267.
107 Michael G Silver, ‘Eugenics and Compulsory Sterilization Laws: Providing Redress for
the Victims of a Shameful Era in United States History’ (2004) 72 George Washington Law
Review 862, 872; Bernadette McSherry and Margaret A Somerville, ‘Sexual Activity among
Institutionalized Persons in Need of Special Care’ (1998) 16 Windsor Yearbook of Access to Justice
90, 112.
However, in the majority of circumstances in which involuntary sterilisa-
tion is widespread, such procedures occur in the absence of explicit permis-
sive legislation. In the majority of cases, it is State policy and the existence
of a culture that propagates the acceptability of involuntary sterilisation that
facilitates its widespread practice. For example, the enforcement of the ‘one-
child policy’ in China has taken the form of coercive measures including
forced abortion and forced sterilisation.108 Interestingly, while legislation
enshrines the content of the ‘one-child policy’, it does not explicitly provide
for the use of coerced sterilisation to enforce the policy. Concomitantly, nei-
ther does family planning legislation explicitly prohibit the use of coercive
measures to enforce the population control policy. The absence of an explicit
prohibition together with the development of a culture that accepts coercive
measures in the interests of population control has led to a situation in which
coercive measures to enforce the government’s ‘one-child policy’ are generally
accepted even though they are not specifically provided for by law.109
Another example of involuntary sterilisation procedures being performed
in the absence of explicit authorising legislation is the example of the recent
practice of sterilising Romani women in the Czech Republic without obtain-
ing proper informed consent.110 While since 1990 there has not been a State
law or policy encouraging this practice, cultural attitudes that perpetuate
the continued denigration of Roma and widespread discrimination against
the Romani community have resulted in numerous instances of involuntary
sterilisation of Romani women. Thus the involuntary sterilisation of Romani
women is a reflection of social and cultural norms that devalue Romani women
rather than an implementation of laws providing for such procedures.111
The content of this chapter is influenced by the reality that law generally
plays an inferior role to State policy, social norms or the power of the medical
profession in the context of involuntary sterilisation. Indeed, there are many
factors not dealt with in this chapter that have the effect of disempowering
women who are subjected to involuntary sterilisation procedures. However,
discussion of the power of medicine in this context seems particularly perti-
nent given the pervasiveness of the abuse of medical power in the context of
involuntary sterilisation and given its applicability in the context of restric-
tions on abortion. Thus, while acknowledging that there are instances in
which the perpetration of involuntary sterilisation procedures is a reflection of
the power of law, the bulk of this section focuses on the power of the medical
profession. This is a reflection of the reality that it is doctors who actually per-
form the procedures and the power of medicine is therefore always implicated
108 See also: Chapter 5 of this book for a discussion of China’s ‘one-child policy.’
(2009) 22 New York International Law Review 1, 45–52.
110 See also: Chapter 5 of this book for a discussion of the involuntary sterilisation of Romani women.
111 See Otakar Motejl, Public Defender of Rights, Final Statement of the Public Defender of Rights
in the Matter of Sterilisations Performed in Contravention of the Law and Proposed Remedial Measures
(23 December 2005).
in circumstances where a woman is sterilised without providing full informed
consent.
(ii) Power of medicine

The existence of the power imbalance between doctor and patient is dif-
ficult to dispute yet the source of the power imbalance remains contentious.
For example, the power imbalance may be viewed as a consequence of the
frequent distinctions in social status and class between doctor and patient.
Alternatively, it may be viewed as a consequence of the fact that the doctor
possesses specialised knowledge that the patient does not possess. Then again
it may be attributed to the power of the medical profession as a whole to
demand deference and obedience. Like the power of law, the power of the
medical profession has been the subject of discussion in various fields, ranging
from philosophy to sociology. Medical sociologist Eliot Freidson commented
on the privileged and prestigious position of the medical profession in a
number of his books. He viewed medicine as occupying a privileged position
in society – above traditionally privileged professions such as law.112 Like
Michel Foucault (discussed later), Freidson to a large extent attributed this
increase in prestige to the reality that modern medicine is based on scientific
knowledge.113 With respect to its dominance within the health care industry,
Freidson attributed the power of medicine to its autonomy (meaning its
propensity for self-regulation) and its dominance (meaning its control of the
work of others involved in health care).114 Further, Freidson predicted that
despite significant challenges, the medical profession would maintain its posi-
tion of dominance in the future.115 As to the relationship between doctor and
patient, Freidson viewed the prestige of the doctor as contributing to a power
dynamic in which the patient is the passive recipient of the doctor’s service,
granting deference to the doctor’s opinions and feeling too intimidated to
question the doctor. This sense of deference and intimidation is obviously
not applicable to all patients but the greater the gap in social status between
doctor and patient the more likely it is that there will be a greater power
imbalance between doctor and patient.116
It should be noted that in recent years the power of the medical profession
has to some extent been challenged and moderated in certain countries and
112 See for example: Eliot Freidson, Profession of Medicine (Harper & Row, New York, 1970) xviii.
113 Eliot Freidson, Medical Work in America: Essays on Health Care (Yale University Press, New
Haven, 1989) 16.
114 Ellen Annandale, The Sociology of Health and Medicine: A Critical Introduction (Polity Press,
Cambridge, 1998) 231. Bryan Turner has identified three modes of domination: subordination,
limitation and exclusion. See: Bryan S Turner, Medical Power and Social Knowledge (2nd ed, Sage
Publications, London, 1995) 138.
115 Ellen Annandale, The Sociology of Health and Medicine: A Critical Introduction (Polity Press,
Cambridge, 1998) 231.
116 Eliot Freidson, Professional Dominance (Atherton Press Inc, New York, 1970) 113–114.
in certain ways. For example, increased levels of human rights awareness in
Western liberal democracies have resulted in patients having greater knowl-
edge of their rights and of the mechanisms by which they may enforce their
rights. Further, the increasing emphasis placed on bioethics and the need
for certain medical decisions to be approved by a Committee composed of
both medical and non-medical members has in certain contexts operated so
as to diminish the power of the medical profession. For example, in Victoria
(Australia), the Mental Health Review Board conducts reviews of, and hears
appeals by, psychiatric patients being treated involuntarily either as inpa-
tients or on community treatment orders. The Board is composed of three
types of member: legal, psychiatrist and community. Thus the decision relat-
ing to the continuation of involuntary treatment does not rest solely in the
hands of the medical profession.117 Nevertheless, the fact that there are certain
constraints on medical power does not negate the existence of such power.
Thus Fredric Wolinsky poses the question: how can the profession be trusted
not to ‘misuse its autonomy and abuse its clientele’?118
Michel Foucault was of the view that those who could lay claim to knowl-
edge of the truth could exercise power in the implementation of such knowl-
edge.119 According to Foucault, the ability of doctors to base their practice
on scientific knowledge has had the effect of producing a powerful medical
profession.120 In his seminal work The Birth of the Clinic, Foucault describes
the capacity of the doctor to observe the patient, what he refers to as the clini-
cian’s ‘gaze’, as part of his discussion of the power relations inherent in the
doctor–patient relationship. He states that the doctor’s gaze ‘is not faithful
to truth, nor subject to it, without asserting, at the same time, a supreme
mastery: the gaze that sees is a gaze that dominates.’121 Similarly, in the same
book, Foucault states that the medical gaze ‘was no longer the gaze of any
observer, but that of a doctor supported and justified by an institution, that
of a doctor endowed with the power of decision and intervention.’122 Thus
Foucault describes the powerful position of the doctor and the institution of
medicine in modern society. Lisa Downing, in her analysis of Foucault’s The
Birth of the Clinic, explains Foucault’s theory that by focusing on the individual
117 See: Mental Health Review Board of Victoria, Mental Health Review Board of Victoria http://
www.mhrb.vic.gov.au/index.php/home at 19 April 2013.
118 Fredric Wolinsky, ‘The Professional Dominance, Deprofessionalization, Proletarianization, and
Corporatization Perspectives: An Overview and Synthesis’ in Fredric W Hafferty and John B
McKinlay (eds), Changing Medical Profession: An International Perspective (Oxford University
Press, Oxford, 1993) 13.
119 Bryan S Turner, Medical Power and Social Knowledge (2nd ed, Sage Publications, London, 1995)
12.
12.
121 Michel Foucault, The Birth of the Clinic (Alan M Sheridan trans, 1973 ed, Routledge, London/
New York) 39 [trans of Naissance de la clinique].
122 Michel Foucault, The Birth of the Clinic (Alan M Sheridan trans, 1973 ed, Routledge, London/
New York) 89 [trans of Naissance de la clinique].
patient modern medicine entrenches the power differential between doctor
and patient:
The popular contemporary fashion for patient-centred therapy and

treatment – the notion that if the individual patient is the focus of the
treatment, then the ethics of medical practice are assured – is given a
different slant through Foucault’s argument that putting the individual
patient right at the centre of treatment does not necessarily lessen the
power relation between the doctor’s gaze/touch and the medicalised body
– indeed, it may bring it all the more sharply into focus. Or, more radi-
cally, it may even create it ex nihilo. It is a beautifully subtle feature of
Foucault’s argument that the dominant gaze of modern clinical medicine
is not totalising or universalising, but individualising. Individuality,
which humanists and neo-liberals take to be that which must be defended
from oppression, becomes nothing more than the effect of the operation
of power in Foucault’s anti-humanist, but still humane, text.123
Further, the power of the medical profession is viewed as one example of

the increasing regulation of society. According to Bryan Turner, Foucault
views medicine as ‘part of an extensive system of moral regulation of popula-
tions through the medical regime’; as ‘an important aspect, of the general
regulation of bodies which, through what Foucault called “governmental-
ity”, characterizes modern societies.’124 Thus in Foucault’s view, the modern
medical profession, based as it is on science, wields power through its spe-
cialised knowledge. This power imbalance is apparent at a micro level in the
relationship between an individual doctor and an individual patient but it is
also a reflection of the macro social trend towards the increasing regulation
of society.
Foucault also discussed the particular manifestation of medical power in
the context of the female body. He argued that, since the 18th century, doc-
tors have subjected the female body to surveillance and dissection, position-
ing it within a negative framework of ‘madness, badness or weakness.’125 Thus
he identified ‘a three fold process whereby the feminine body was analyzed
– qualified and disqualified – as being thoroughly saturated with sexuality;
whereby it was integrated into the sphere of medical practices, by reason of
a pathology intrinsic to it.’126 As discussed with respect to the power of law,
the power of the medical profession is exacerbated when the subject is female.
The power imbalance between the traditionally male doctor and the female
123 Lisa Downing, The Cambridge Introduction to Michel Foucault (Cambridge University Press,
Cambridge, 2008) 37.
13 (citations omitted).
125 Jane M Ussher, Managing the Monstrous Feminine (Routledge, East Sussex, 2006) 15.
126 Michel Foucault, The History of Sexuality, Volume 1: An Introduction (Robert Hurley trans, 1984
ed, Penguin, London) 104 [trans of La volonté de savoir].
patient has historically amounted to a greater power imbalance than that
between doctor and male patient. Some feminists have criticised the medical
profession on the grounds that it is a:
[p]rivileged occupational group exercising patriarchal authority and con-

trol over subordinate social groups, especially over women. The doctor
reinforces and articulates patriarchal values by regulating the sexuality of
women and supporting implicitly the structure of the family on behalf
of existing social arrangements which are dominated by male control and
privilege.127
The subordination of women by the medical profession is not a recent phe-

nomenon. Barbara Ehrenreich and Deirdre English discuss the ‘epidemic’ of
‘invalidism’ which seemed to sweep through the ‘middle- and upper-class
female population both in the United States and England’ in the mid- to
late 19th century as an example of the medical profession’s role in perpetuat-
ing female subordination.128 They provide the example of Charlotte Perkins
Gilman (a married mother) who, in the 1880s, collapsed with a ‘nervous
disorder’ to illustrate this point.129 The doctor prescribed that she live a
domestic life, keep her child close by, rest after each meal, keep intellectual
activity to two hours a day and ‘never touch pen, brush or pencil as long as you
live.’130 Gilman attempted to follow the doctor’s orders, the result being that
her condition significantly worsened.131 Finally, in a ‘moment of clear vision’,
Gilman understood that the supposed ‘cure’ was in fact the cause of her ill-
ness – she did not want to be a ‘wife’ but rather, she wanted to be a writer and
activist.132 According to Ehrenreich and English:
Charlotte Perkins Gilman was fortunate enough to have had a ‘moment

of clear vision’ in which she understood what was happening to her.
Thousands of other women, like Gilman, were finding themselves in a
new position of dependency on the male medical profession – and with no
alternative sources of information or counsel. The medical profession was
consolidating its monopoly over healing, and now the woman who felt
sick, depressed, or simply tired would no longer seek help from a friend
138.
128 Barbara Ehrenreich and Deirdre English, For Her Own Good: Two Centuries of the Experts’ Advice
to Women (2nd ed, Anchor Books, New York, 2005) 113.
or female healer, but from a male physician. The general theory which
guided the doctors’ practice as well as their public pronouncements was
that women were, by nature, weak, dependent, and diseased. Thus would
the doctors attempt to secure their victory over the female healer: with
the ‘scientific’ evidence that woman’s essential nature was not to be a
strong, competent help-giver, but to be a patient.133
This power dynamic between doctors and their female patients has continued
in modern times. Ehrenreich and English make the point that:
[f]or decades into the twentieth century doctors would continue to

view menstruation, pregnancy, and menopause as physical diseases
and intellectual liabilities. Adolescent girls would still be advised to
study less, and mature women would be treated indiscriminately to
hysterectomies, the modern substitute for ovariotomies. The female
reproductive organs would continue to be viewed as a kind of frontier
for chemical and surgical expansionism, untested drugs, and reckless
experimentation.134
According to Jane Ussher, medicine has regulated and pathologised female

sexuality and the effect of this surveillance and control has been to render the
female body ‘passive and docile.’135 Thus women are controlled, managed and
rendered unthreatening. Ussher maintains that ‘[t]he unruly reproductive
body is positioned as legitimate object of medical and scientific surveillance,
amenable to containment and control.’136 She then proceeds to describe how
in contemporary medical surveillance of women’s bodies, menstruation is
viewed with disdain, pregnancy is positioned as an illness and ‘reproduc-
tive syndromes have become catch-all diagnostic categories that conveniently
attribute female distress and deviance to the reproductive body, legitimating
medical management of the reproductive excess.’137 In her view, this so-
called scientific conceptualisation of women and women’s bodies influences
the way in which women view themselves – women’s experiences are defined
in medical terms and thus women are taught to view medicine as the solution
to various forms of distress.138 Further, a woman who resists such pathologisa-
tion and rejects medical ‘treatment’ is frequently positioned as behaving in
a way that is detrimental to others, such as her partner or children.139 Such
to Women (2nd ed, Anchor Books, New York, 2005) 112–113.
135 Jane M Ussher, Managing the Monstrous Feminine (Routledge, Hove, 2006) 16.
is the ‘process of coercion, and positioning of the fecund body as inherently
monstrous, necessitating expert containment and management.’140
It may be argued that increased female participation in the medical profes-
sion has led to changes in the culture of the medical profession. However, as
noted earlier in this chapter, while women’s participation in the medical pro-
fession has increased, it is far from equal. The profession remains a male-domi-
nated profession. Further, as discussed in Chapter 1, in the context of exploring
the gendered nature of international law, an ‘add women and stir’ approach aids
in addressing the gender imbalance of those involved in the system but does
not challenge the structure, content and culture of the system itself.
EXAMPLES OF THE POWER OF MEDICINE IN THE CONTEXT OF INVOLUNTARY

STERILISATION
The medical profession’s active role in the performing of involuntary steri-

lisation procedures in numerous contexts throughout the past century is
a specific example of the power of medicine to subordinate, denigrate and
disable women. In the United States in the 1970s there was a ‘sterilization
explosion’, which disproportionately affected African-American, Hispanic
and poor women.141 Numerous instances have been recorded of women ‘con-
senting’ to sterilisation procedures minutes before a caesarean section was to
be performed or ‘consenting’ to sterilisation procedures under the mistaken
belief that the procedures were reversible.142 Allegations have been made that
staff at a number of public hospitals would coerce unwed women or women
on welfare, who came to the hospital to give birth, to agree to sterilisation.
The methods of coercion varied from threatening to drop the baby unless
the woman ‘consented’ to sterilisation, to denial of obstetrical care unless she
‘consented’ to sterilisation.143
The tragedy of the Relf family highlights the role of the medical profession
in perpetuating sterilisation abuse in the United States.144 The Relfs were a
poor African-American family living in Montgomery, Alabama. On 13 June
& Nicolson Limited, London, 1988) 187. For a discussion of the racial element apparent in the
United States involuntary sterilisation campaign see: Angela Davis, ‘Racism, Birth Control
and Reproductive Rights’ in Nancy Ehrenreich (ed) The Reproductive Rights Reader (New York
University Press, New York, 2008) 86.
& Nicolson Limited, London, 1988) 181–182; Thomas M Shapiro, Population Control Politics:
Women, Sterilization, and Reproductive Choice (Temple University Press, Philadelphia, 1985) 90;
Angela Davis, ‘Racism, Birth Control and Reproductive Rights’ in Nancy Ehrenreich (ed) The
1973 a family planning nurse unexpectedly arrived at their home and told
Mrs Relf that her 12- and 14-year-old daughters were being taken to receive
Depo-Provera injections. Mrs Relf was asked to sign a form. Being illiterate,
she did not realise that the form was a consent to sterilisation form and she
marked an ‘X’. Without their or their mother’s knowledge, the daughters
were then sterilised.145 Following the publicity exposing the treatment of the
Relf sisters, other similar episodes were exposed; in Montgomery alone 11
teenage girls had been similarly sterilised.146
A more recent example is the abuses committed during the regime of
Alberto Fujimori in Peru. As discussed in Chapter 5, the period of Alberto
Fujimori’s regime in Peru (April 1992–November 2000) has become notori-
ous for the perpetration of government-sponsored gross human rights vio-
lations.147 It was during this period that the involuntary sterilisation of over
200,000 mostly indigenous rural women took place.148 Doctors were essential
conduits for carrying out the government’s anti-natalist policies. While it
must be acknowledged that health professionals were themselves coerced
into performing involuntary sterilisation procedures (for example, doctors
were required to meet certain quotas in order to remain employed), the pres-
sure to which doctors were subjected does not change the reality that they
wielded enormous power over the women who they subjected to involuntary
sterilisation procedures. Mechanisms used to coerce women into submitting
to sterilisation included withholding information regarding non-permanent
forms of contraception, deceiving women, threatening women and providing
economic incentives.149 The testimony of a physician who worked for the
Ministry of Health is instructive:
We were required to perform a certain number of sterilisations each

month. This was obligatory and if we did not comply, we were fired.
& Nicolson Limited, London, 1988) 181–182; Thomas M Shapiro, Population Control Politics:
Women, Sterilization, and Reproductive Choice (Temple University Press, Philadelphia, 1985) 90;
Angela Davis, ‘Racism, Birth Control and Reproductive Rights’ in Nancy Ehrenreich (ed) The
146 Angela Davis, ‘Racism, Birth Control and Reproductive Rights’ in Nancy Ehrenreich (ed) The
Truth Commission’s Final Report’ (2009) 29 Boston College Third World Law Journal 1, 9–15.
Truth Commission’s Final Report’ (2009) 29 Boston College Third World Law Journal 1, 33; J
Jaime Miranda and Alicia Ely Yamin, ‘Reproductive Health Without Rights in Peru’ (2004)
363 The Lancet 68, 68; Amnesty International, Peru: The Truth and Reconciliation Commission – A
First Step Towards a Country without Injustice (25 August 2004). It should be noted that there
is not universal consensus as to the number of women subjected to involuntary sterilisation
in Peru. See for example: Lara M Knudsen, Reproductive Rights in a Global Context (Vanderbilt
University Press, Nashville, 2006) 84.
Many providers did not inform women that they were going to be
sterilised – they told them the procedure was something else. But I felt
this was wrong. I preferred to offer women a bag of rice to convince them
to accept the procedure and explained to them beforehand what was
going to happen.150
An example of the power of the medical profession in this context is the case
of María Mamérita Mestanza Chávez (Mestanza), also discussed in Chapter 5.
Mestanza and her husband were repeatedly harassed and threatened by health
personnel until she finally submitted to tubal ligation surgery. The procedure
was performed without a pre-surgery medical examination and Mestanza was
released the next day despite the fact that she was experiencing nausea and
sharp headaches. The Health Centre dismissed subsequent expressions of
concern by her husband that her condition was worsening daily, attributing
her symptoms to post-operative effects of anaesthesia. Ultimately, Mestanza
died not ten days after the procedure of a sepsis resulting from bilateral
tubal blockage. This tragic example demonstrates the power of the medical
profession to subject women to involuntary sterilisation procedures and the
potentially disastrous consequences of medical neglect or indifference.151
A final example is the predicament of Romani women in the Czech
Republic.152 From the 1990s onwards the sterilisation of Romani women no
longer formed part of official government policy but there is ample evidence
that numerous Romani women were subjected to involuntary sterilisation
during the 1990s and into this millennium.153 Romani women were specifi-
cally targeted for sterilisation when they came into hospital to give birth and
many unnecessary caesarean sections were performed as a vehicle for perform-
ing the sterilisation procedures.154 The abuse of power and violation of the
Hippocratic oath on the part of doctors who implemented their own preju-
dices by carrying out involuntary sterilisation procedures is well documented.
As already noted in Chapter 5, according to a 2007 Report of the League of
Human Rights (Czech Republic), documented instances of involuntary steri-
lisation of Romani women include: cases in which no consent was obtained,
cases in which consent was obtained while the woman was experiencing the
pain of labour, cases in which consent was obtained without the woman fully
71/03.
152 See also: discussion in Chapter 5.
153 Committee on the Elimination of Racial Discrimination, Concluding Observations on the Czech
Republic, 70th sess, UN Doc CERD/C/CZE/CO/7 (19 February–9 March 2007) [14]; League
of Human Rights (Czech Republic), Shadow Report to the Human Rights Committee: The Czech
Republic (10 June 2007) 8, 9.
December 2005).
understanding the nature and consequences of the procedure and cases in
which women were manipulated or coerced into providing consent. 155
The story of Elena Gorolová provides a useful example.156 In 1990 she
gave birth to her second child by way of caesarean section. While in labour,
she was asked to consent to sterilisation. According to Elena, ‘[a]t the time I
had no idea what that meant. I was in great pain, so I signed the paper that
was given me. Under those circumstances I would have signed my own death
sentence.’157 Similarly, in October 2001 Helena Ferenčiková gave birth to
her second child by way of caesarean section and was sterilised at the same
time. Helena’s ‘consent’ to sterilisation was secured by doctors minutes before
the operation, when she was already deep in labour.158 Thus the documented
instances of involuntary sterilisation of Romani women in the Czech Republic
provide a particularly clear example of the power wielded by the medical
profession in the context of involuntary sterilisation.
Analogous stories have emerged from Slovakia. In fact, in 2011/2012 the
European Court decided a trio of cases involving the involuntary sterilisation
of Romani women in Slovakia.159 Each of these cases involved circumstances
in which the women in question had been asked to consent to sterilisation
while experiencing labour pains and, in some instances, were asked to provide
consent following the administration of medication negating the possibility
of clear judgment. These cases, in which the European Court found a violation
of article 3 of the European Convention for the Protection of Human Rights
and Fundamental Freedoms,160 provide an example of the medical profession
taking advantage of the vulnerability and loss of control of women who were
about to give birth.
4 Conclusion
The definition of torture contained in article 1 of CAT does not explicitly
require that the victim be powerless. Nonetheless, it is difficult to imagine an
example of torture being perpetrated in circumstances in which the victim is
not powerless or (at least) where there is not a significant imbalance of power.
This approach seems to be supported by the perspective of numerous scholars
Czech Republic (10 June 2007) 8, 9.
Geneva, 21 April 2009).
Geneva, 21 April 2009).
Czech Republic (10 June 2007) 8, 12.
159 VC v Slovakia (2011) Eur Court HR 18968/07; NB v Slovakia (2012) Eur Court HR 29518/10;
IG and Ors v Slovakia (2012) Eur Court HR 15966/04.
160 Opened for signature 4 November 2950, ETS 5 (entered into force 3 September 1953). Article
3 states that ‘[n]o one shall be subjected to torture or to inhuman or degrading treatment or
punishment.’
and neither the CAT Committee nor the HRC has expressed a contrary view.
Further, the arguments that rape and intimate partner violence constitute tor-
ture in certain circumstances, together with numerous non-legal viewpoints,
indicate that the ‘powerlessness’ of the victim is an integral component of
torture. Thus it seems that ‘powerlessness’, while not an explicit requirement,
is an implicit requirement for the establishment of torture. The remaining
question is whether this element of ‘powerlessness’ is present in the context of
restrictions on abortion and involuntary sterilisation procedures. This chapter
presents the view that numerous factors combine to render women powerless
in the context of both restrictions on abortion and involuntary sterilisation.
The factors that form the focus of this chapter are the power of law and
the power of medicine. Law and medicine, either separately or combined,
exercise their power so as to render women powerless in the context of both
restrictions on abortion and involuntary sterilisation.
8 Lawful sanctions
or other person acting in an official capacity. It does not include pain or
suffering arising only from, inherent in or incidental to lawful sanctions.1
1 Introduction
Up to this point, this book has presented the view that both restrictions on
abortion and involuntary sterilisation frequently fall within all of the ele-
ments of the definition of torture set out in article 1 of the Convention against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
(CAT).2 The final sentence of article 1 states that torture ‘does not include pain
or suffering arising only from, inherent in or incidental to lawful sanctions.’3
This sentence is arguably the most controversial aspect of article 1 and the
confusion surrounding it has resulted in it being called a ‘monstrosity.’4 This
final sentence of article 1 is referred to in this chapter as the ‘lawful sanctions
clause.’
This chapter considers the most common interpretations of the lawful
2 Opened for signature 10 December 1984, 1465 UNTS 85, art 1(1) (entered into force 26 June
1987).
4 Chris Ingelse, The UN Committee against Torture: An Assessment (Kluwer Law International, The
Hague, 2001) 216.
Lawful sanctions 205
sanctions clause with a view to determining whether restrictions on abortion or
involuntary sterilisation procedures fall within this exclusion. Unfortunately,
the Committee against Torture (CAT Committee) has provided limited guid-
ance with respect to the interpretation of this sentence. It has been cautious
in the reporting procedure to avoid confrontation with governments as to
the interpretation of the lawful sanctions clause and has generally avoided
the issue in its jurisprudence.5 Thus the discussion in this chapter is mainly
focused on the views of experts in this field and, where possible, the chapter
also draws on the comments of the CAT Committee.
The chapter begins by providing an overview of the drafting history of the
lawful sanctions clause in order to provide some context for the disagreements
of interpretation that are discussed in the remainder of the chapter. The
second part discusses the first possible interpretation of the lawful sanctions
clause, that being that ‘lawful’ refers to lawful under domestic law. The third
part of this chapter considers the second possible interpretation of the lawful
sanctions clause, that being that ‘lawful’ refers to lawful under international
law. It also acknowledges a third possible interpretation – that the lawful
sanctions clause has no application and should be ignored. Assuming the
applicability of the second interpretation; that ‘lawful’ means lawful under
international law, the fourth and final part of this chapter considers whether
restrictions on abortion and involuntary sterilisation procedures fall within
the lawful sanctions clause. It ultimately concludes that these restrictions on
reproductive freedom do not fall with the lawful sanctions exemption.
2 Drafting history of the lawful sanctions clause

At the 34th session of the Commission on Human Rights held in 1978,
Sweden and the International Association of Penal Law introduced different
drafts of a Convention against Torture for consideration. The Working Group
of the Commission decided to conduct its discussion on the basis of the Swedish
draft.6 In this draft, as in the final version of the Convention, the definition
of torture was contained in article 1(1) and the second sentence of the defini-
tion contained the lawful sanctions exclusion. The lawful sanctions clause was
written as follows: ‘It does not include pain or suffering arising only from,
inherent in or incidental to, lawful sanctions to the extent consistent with the
6 Ahcene Boulesbaa, The UN Convention on Torture and the Prospects for Enforcement (Kluwer Law
International, The Hague, 1999) 4. See Draft International Convention against Torture and
other Cruel, Inhuman or Degrading Treatment or Punishment, 18 January 1978, UN Doc E/
CN.4/1285. A reproduction of this draft may be found in J Herman Burgers and Hans Danelius,
The United Nations Convention against Torture: A Handbook on the Convention against Torture
and Other Cruel, Inhuman or Degrading Treatment or Punishment (Martinus Nijhoff Publishers,
Dordrecht, 1988) 203.
Standard Minimum Rules for the Treatment of Prisoners.’7 This wording was
borrowed from the definition of torture contained in the Declaration on the
Protection of All Persons from Being Subjected to Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment.8 The inclusion of the
reference to the Standard Minimum Rules was the subject of much criticism;
several delegations pointed out that it was difficult, as a matter of principle, to
base a definition on a non-binding instrument such as the Standard Minimum
Rules.9 These governments ‘did not wish to include in a binding treaty
a reference to a non-binding soft law instrument.’10 However, once these
governments realised that deleting the reference to the Standard Minimum
Rules could lead to an overly broad interpretation of the lawful sanctions
clause, they tried to adopt a different approach aimed at narrowing the scope
of the application. In other words, once it was realised that the phrasing of the
exemption in broad terms could potentially (and unintentionally) result in ‘a
far-reaching escape clause which would even exempt serious types of corporal
punishment provided for in the criminal law of Islamic States from the prohi-
bition of torture’ they tried to replace it with another limitation referring to
‘binding international standards.’11
Accordingly, the United States proposed that the lawful sanctions clause
take the following form: ‘Torture does not include pain or suffering arising
only from, inherent in or incidental to sanctions lawfully imposed; but does
include sanctions imposed under colour of law but in flagrant disregard of
accepted international standards.’12 However, the drafters could not agree
on the content of these ‘international standards’.13 Similarly, Denmark was
Treatment or Punishment, 18 January 1978, UN Doc E/CN.4/1285. The United Nations
Standard Minimum Rules for the Treatment of Prisoners, ESC Res 663 C (XXIV), UN ESCOR, 24th
sess, Supp 1, UN Doc E/3048 (31 July 1957) were adopted by the First United Nations Congress
on the Prevention of Crime and the Treatment of Offenders on 30 August 1955 and approved
by the United Nations Economic and Social Council on 31 July 1957. See: Celso Eduardo Faria
Coracini, ‘The Lawful Sanctions Clause in the State Reporting Procedure before the Committee
against Torture’ (2006) 24(2) Netherlands Quarterly of Human Rights 305, 307.
8 UN Doc A/RES/3452(XXX) (9 December 1975).
or Degrading Treatment or Punishment, 11 March 1979, UN Doc E/CN.4/L.1470 [21]; J
Herman Burgers and Hans Danelius, The United Nations Convention against Torture: A Handbook
in favour of removing the reference to the Standard Minimum Rules for the
Treatment of Prisoners and replacing it with a broader reference to inter-
national law. It suggested that this reference might be changed to read ‘to
the extent consistent with international rules for the treatment of persons
deprived of their liberty’.14 Sweden also acted on this concern regarding
reference to the Standard Minimum Rules and put forward a revised text
that worded the lawful sanctions clause in the following way: ‘[i]t does not
include pain or suffering arising only from, inherent in or incidental to,
lawful sanctions.’15 This wording was reiterated in a proposal submitted by
the International Commission of Jurists and was ultimately accepted as the
wording of the lawful sanctions clause.16
Moreover, in addition to debating the phrasing of the exemption, during
the drafting process there was also some discussion as to the meaning of the
lawful sanctions clause. According to J Herman Burgers and Hans Danelius:
[O]n the one hand, it was held that a general exception should be made
for lawful sanctions, since the purpose of the Convention was not to make
criminal sanctions provided for in different legal systems more humane
but to prohibit torture not allowed under the law of any country. On
the other hand, it was pointed out that it would be unsatisfactory if a
State was permitted to continue applying punishments of such cruelty
that they would, by normal standards, be considered to fall under the
definition of torture.17
Unfortunately, no agreement was reached with respect to the meaning of

the lawful sanctions clause. In the end, despite the view of many States that
the lawful sanctions clause should include some reference to international
standards, no such reference was included as it was widely considered that no
such international standards existed.18 At the conclusion of the drafting of the
Treatment or Punishment, 19 February 1979, UN Doc E/CN.4/WG.1/WP.1. A reproduction
of this revised text may be found in J Herman Burgers and Hans Danelius, The United Nations
Convention against Torture: A Handbook on the Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment (Martinus Nijhoff Publishers, Dordrecht, 1988) 208.
Convention, the meaning of the lawful sanctions clause was left unresolved.
Consequently, some take the view that the lawful sanctions exclusion oper-
ates so as to exclude conduct authorised under domestic law; others take the
view that the lawful sanctions clause operates to exclude conduct authorised
under international law.19 Yet another view is that there is no logical way of
interpreting the lawful sanctions clause and it should therefore be treated as
an anomaly and ignored.

domestic law
As stated already, one possible interpretation of the lawful sanctions clause is
that it excludes ‘pain or suffering arising only from, inherent in or incidental
to’ sanctions under domestic law from the definition of torture. Those who
adopt this interpretation argue that CAT was not intended to lead to indi-
vidual States reforming their systems of penal sanctions and that if this was
the intention, many States would not have ratified it.20 For example, many
of the Islamic States who are parties to CAT would not have agreed to the
Convention if its effect were to prohibit forms of corporal punishment that are
a part of shari’a law.21 In his 2005 report to the General-Assembly Manfred
Nowak, former Special Rapporteur on torture and other cruel, inhuman or
degrading treatment or punishment (Special Rapporteur), raised this issue in
the context of a discussion of corporal punishment. He noted that States that
engage in various forms of corporal punishment, such as ‘amputation, ston-
ing, strangulation, eye-gouging, flogging, and beating’ frequently ground
such practices ‘in justifications of domestic law, including religious law.’22
The 2002 dialogue between the CAT Committee and Saudi Arabia pro-
vides a useful example of the perspective of States that adopt this interpreta-
tion of the lawful sanctions clause to defend certain punishments enshrined in
their domestic legal systems. During the CAT Committee’s consideration of
Saudi Arabia’s initial report Mr Al-Hogail, one of the Saudi representatives,
expressed the view that ‘lawful sanctions’ implies lawful under domestic law.
He explained that Saudi Arabia was an Islamic State and that shari’a law,
including the specific sanctions of amputation, flogging and stoning, was the
law of the land. He then proceeded to assert:
Hague, 2001) 214.
Treatment or Punishment, UN Doc A/60/316 (30 August 2005) [18].
[The] sanctions referred to in the Koran were not forms of torture within
the meaning of article 1 of the Convention – which excluded pain or suf-
fering arising from, inherent in or incidental to lawful sanctions – precisely
because they were the law of the land. The Saudi Arabian Code of Criminal
Procedure prohibited the infliction of any punishment other than that
prescribed by the Shariah or the law.23
A few scholars have also adopted this interpretation of the lawful sanctions
clause. For example, Ahcene Boulesbaa has argued that:
Any State that is committed to the practice of torture would be able
to take its conduct outside the scope of the Convention by making it
a lawful sanction under its legal system of government and argue that
the conduct is ‘inherent in or incidental to lawful sanctions’, which are
excluded from the definition of the prohibited conduct … The exclusion of
the conduct ‘inherent in or incidental to lawful sanctions’ enables Parties to violate
the Convention without being found in breach of it.24
Thus those who adopt this interpretation of the lawful sanctions clause essen-
tially argue that the clause paradoxically allows States to engage in conduct
that would otherwise amount to torture without breaching article 1 of the
Convention. Nevertheless, it is worth recalling that article 16, which requires
States to prevent ‘other acts of cruel, inhuman or degrading treatment or
punishment which do not amount to torture’, does not contain an exemption
for lawful sanctions.25 Therefore, even if this interpretation of the lawful sanc-
tions clause was officially adopted, States that legalise the specific sanctions
of amputation, flogging and stoning (for example) under their domestic legal
systems could presumably still be found to have violated article 16 of CAT.
Further, at the risk of stating the obvious, to fall within the lawful sanctions
clause under this broad interpretation, the treatment or punishment in ques-
tion must be legal under domestic law. The requirement for such conduct
to be enshrined in law is itself not an insignificant barrier as it requires that
a State be sufficiently audacious as to publicly declare conduct which would
otherwise amount to torture to be legal conduct.
In any event, such an interpretation of the lawful sanctions clause would
allow States to engage in conduct that would ordinarily be deemed torture
by legalising such conduct under their domestic law.26 Given that CAT was
23 Committee against Torture, Consideration of Initial Report Submitted by Saudi Arabia, 28th sess,
UN Doc CAT/C/SR.519 (17 May 2002) [30] (emphasis added).
24 Ahcene Boulesbaa, The UN Convention on Torture and the Prospects for Enforcement (Kluwer Law
International, The Hague, 1999) 29–30 (emphasis added).
25 See: Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened
for signature 10 December 1984, 1465 UNTS 85, art 16 (entered into force 26 June 1987).
established to strengthen the existing prohibition of torture and to reinforce
the obligations of States with respect to this prohibition, this interpretation
of the lawful sanctions clause is difficult to defend. Manfred Nowak and
Elizabeth McArthur have criticised this interpretation on the basis that it
contradicts general international human rights law. For example, they state
that:
One extreme interpretation is the one advocated by Saudi Arabia and

other Islamic States maintaining that any sanction imposed in accordance
with domestic law, including the most severe forms of corporal punish-
ment and executions of capital punishment, was covered by the wording
of the second sentence in Article 1(1). Such an interpretation is in clear
contradiction with general international human rights (and humanitar-
ian) law as expressed, for instance, in the case law of the Human Rights
Committee in relation to Article 7 ICCPR which considers any form of
corporal punishment as a violation of international law.27
Nowak and McArthur also disagree with this interpretation on the basis that
it contravenes the object and purpose of CAT. According to article 31(1) of
the Vienna Convention on the Law of Treaties (VCLT) a ‘treaty shall be inter-
preted in good faith in accordance with the ordinary meaning to be given to
the terms of the treaty in their context and in the light of its object and purpose.’28
Consequently, Nowak and McArthur are of the view that an interpretation of
the lawful sanctions clause that excludes conduct authorised under domestic
law from the article 1 prohibition:
would suggest that the CAT, which was adopted in 1984 with the clear
object and purpose of strengthening the already existing State obliga-
tions to prevent and punish torture, in fact had lowered this international
standard. Accordingly, such an interpretation is clearly incompatible
with the object and purpose of the Convention and can, therefore, not
be upheld in light of Article 31 VCLT. In addition, the savings clause in
Article 1(2) prevents such an interpretation.29
In other words, the prohibition of torture was a part of the international legal
system long before the drafting of CAT. For example, article 7 of the ICCPR
(which came into force in 1976) prohibits torture; there is no suggestion that
Commentary (Oxford University Press, Oxford/New York, 2008) 81–82 (citations omitted).
28 Vienna Convention on the Law of Treaties, opened for signature 23 May 1969, 1155 UNTS 331, art
31(1) (entered into force 27 January 1980) (emphasis added).
Commentary (Oxford University Press, Oxford/New York, 2008) 82–83 (citations omitted). The
savings clause under article 1(2) states that: This article is without prejudice to any international
instrument or national legislation which does or may contain provisions of wider application.
the article 7 prohibition of torture excludes conduct lawful under domestic
law. Given that CAT was intended to strengthen (rather than weaken) the
existing prohibition, it would seem bizarre if the lawful sanctions clause were
interpreted so as to exclude conduct lawful under domestic law. This view
is reiterated by Chris Ingelse, who has asserted that, given that the purpose
of CAT was to ‘strengthen the existing prohibition of torture and to prevent
torture,’ the drafters could not have intended that the lawful sanctions clause
‘offer an opening for torture under the pretext of a lawful punishment.’30
Further, while the CAT Committee has been notably unforthcoming in its
comments relating to the lawful sanctions clause, in its 2003 consideration of
the report submitted by Yemen, the Committee indicated that it disagreed
with this interpretation of the lawful sanctions clause. After noting that
Yemen applies a range of shari’a punishments, including flogging and ampu-
tation, the Committee focused on the penalty of flogging (which is enshrined
in domestic law) and noted that whether this penalty violates article 1 or
article 16 of CAT depends on the purpose of the penalty. It stated that if the
purpose of flogging is to inflict pain, then such a punishment would seem
to violate article 1. However, if the purpose of flogging is to humiliate the
victim, then it would appear to violate article 16, that being the prohibition
of cruel, inhuman or degrading treatment or punishment (CIDT).31 This
analysis indicates that the CAT Committee views flogging as constituting
a violation of article 1 of CAT, irrespective of whether such a penalty is
enshrined in domestic law, if the purpose of the penalty is to inflict pain. Thus
it would seem from this discussion that the CAT Committee does not ascribe
to an interpretation of the lawful sanctions clause that would allow sanctions
enshrined in domestic law to constitute an exception to the prohibition of
torture.
Moreover, in spite of the CAT Committee’s general failure to provide guid-
ance as to the interpretation of the lawful sanctions clause in its jurisprudence,
in the decision of Keremedchiev v Bulgaria,32 the Committee indicated that the
lawful sanctions clause will not be brought into play simply by enshrining
conduct into domestic law.33 In this case, the complainant fell asleep in a
hotel lobby and was subsequently arrested by police officers who kicked, beat,
shackled and threatened to shoot him. In response to the complainant’s allega-
tions of torture, Bulgaria submitted that the actions of the police officers did
not constitute torture within the meaning of article 1 of the Convention. As
part of this argument, Bulgaria stated that the actions of the police officers fell
within the lawful sanctions clause and therefore did not amount to a breach
Hague, 2001) 213.
31 Committee against Torture, Consideration of Initial Report Submitted by Yemen, 31st sess, UN Doc
CAT/C/SR.583 (27 November 2003) [10].
(21 November 2008).
33 See also: Chapters 3 and 9 of this book for a discussion of this decision.
of article 1. Elaborating on this point, Bulgaria noted that the complainant
had been found guilty of hooliganism under its domestic law and therefore
‘it [was] evident that the police officers had to apply lawful measures against
the complainant in order to interrupt his hooliganism.’34 In its consideration
of the merits, the CAT Committee seemed to disagree with Bulgaria’s inter-
pretation of the lawful sanctions clause, stating that ‘[w]hile recognizing that
pain and suffering may arise from a lawful arrest of an uncooperative and/or
violent individual, the Committee considers that the use of force in such cir-
cumstances should be limited to what is necessary and proportionate.’35 Thus
in this decision the CAT Committee seems to indicate that not all conduct
that is lawful under domestic law will automatically fall within the lawful
sanctions clause. It should be noted that ultimately the CAT Committee’s
decision that Bulgaria had violated article 16 of CAT, as opposed to article
1, turned on the element of ‘severe pain or suffering’. Therefore, it was not
necessary for the Committee to provide an in-depth analysis of the lawful
sanctions clause.

international law
The more widely adopted interpretation of the lawful sanctions clause is
that it refers to sanctions authorised by international law. Pursuant to this
interpretation, only sanctions that are authorised by international law will
fall within this exclusion to the prohibition of torture. This interpretation
of the lawful sanctions clause is appealing because it avoids the possibility of
States ratifying the Convention and then contravening its spirit and purpose
by passing domestic laws that allow acts of torture. Both the Netherlands
and Luxembourg have entered declarations stating that ‘lawful’ means
lawful under both domestic and international law.36 Other States, including
Italy, the United Kingdom and the United States have also been explicit in
their interpretation of the lawful sanctions clause as meaning lawful under
international law.37
Further, a number of commentators take the view that ‘lawful sanctions’
means lawful under international law. Participants at an expert seminar held
by the Association for the Prevention of Torture in 2001 unanimously agreed
that an act will not be lawful simply because it is approved by national
34 Keremedchiev v Bulgaria, Committee against Torture, Communication No 257/2004, UN Doc

CAT/C/41/D/257/2004 (21 November 2008) [4.3].
CAT/C/41/D/257/2004 (21 November 2008) [9.3].
36 United Nations, United Nations Treaty Collection, http://treaties.un.org/Pages/ViewDetails.
aspx?src= TREATY&mtdsg_no=IV-9&chapter=4&lang=en at 19 April 2013.
37 Nigel Rodley and Matt Pollard, ‘Criminalisation of Torture: State Obligations under the United
Nations Convention against Torture and other Cruel, Inhuman or Degrading Treatment or
Punishment’ (2006) 2 European Human Rights Law Review 115, 120–121.
law as some acts that are authorised by national law clearly violate inter-
national law.38 According to Matthew Lippman, lawfulness ‘is to be evalu-
ated in accordance with international rather than domestic law. Otherwise,
a state could defeat the purpose of the Convention by adopting draconian
punishments.’39 Further, Sarah Joseph and colleagues take the view that:
[A] preferable interpretation of this exclusion is that the meaning of

‘lawful’ in this context denotes compliance with international law stand-
ards. Sanctions which fail to conform to international standards should
fall outside of this exclusion so that they can be classified as torture under
Article 1. Such an interpretation would prevent States from avoiding
liability for acts of torture by prescribing them as lawful under their
domestic legislation.40
In addition, Chris Ingelse refers to the savings clause in article 1(2) to bolster
his argument that ‘lawful’ means lawful under international law. As men-
tioned earlier, the savings clause states that ‘[t]his article is without prejudice
to any international instrument or national legislation which does or may
contain provisions of wider application.’41 Therefore, pursuant to the savings
clause, sanctions that are lawful under domestic law but that contravene any
other international instrument are not saved by the lawful sanctions clause.42
For example, sanctions that meet the other elements of the article 1 definition
of torture are likely to violate article 7 of the ICCPR (which prohibits torture
and CIDT).43
Manfred Nowak and Elizabeth McArthur are critical of this interpretation
of the lawful sanctions clause. They argue that conduct violating all the other
elements in article 1 of CAT, including the requirement for severe pain or suf-
fering, would clearly constitute either torture under customary international
law or CIDT. Therefore, conduct that violates all the other elements in article
1 of CAT would necessarily conflict with international law. Conduct that
violates the prohibition of torture under customary international law or the
prohibition of CIDT axiomatically would not constitute a ‘lawful sanction’ if
38 Association for the Prevention of Torture, Proceedings of an Expert Seminar (10–11 November
2001) 20.
39 Matthew Lippman, ‘The Development and Drafting of the United Nations Convention against
Torture and Other Cruel Inhuman or Degrading Treatment or Punishment’ (1994) 17 Boston
College International & Comparative Law Review 275, 314.
40 Sarah Joseph, Katie Mitchell, Linda Gyorki and Carin Benninger-Budel, Seeking Remedies for
Torture Victims: A Handbook on the Individual Complaints Procedures of the UN Treaty Bodies (World
Organisation against Torture, Geneva, 2006) 213–214.
Hague, 2001) 214.
Hague, 2001) 214.
lawful is interpreted as lawful under international law. Further, they pose the
question:
How can a certain sanction or punishment which as such would fulfil all
criteria of the definition of torture, including the intentional infliction
of severe pain or suffering, be exempted from this definition without at
the same time violating the absolute prohibition of cruel, inhuman or
degrading punishment in Article 16 CAT and Article 7 CCPR? Even
when a State party to the CAT has not ratified the CCPR and does not
accept the prohibition of cruel, inhuman or degrading treatment as a
rule of customary international law, it is still bound by the provision of
Article 16 CAT which does not contain a lawful sanctions clause.44
Pursuant to this logic, an interpretation of the lawful sanctions clause that

interprets ‘lawful’ as meaning lawful under international law in reality leaves
no scope of application for the lawful sanctions clause. This is because conduct
that is lawful under international law will not satisfy the other elements of the
article 1 definition of torture and, consequently, there is no need to consider
whether such conduct amounts to a lawful sanction. This reasoning leads
Nowak and McArthur to conclude their analysis of the lawful sanctions clause
with the pronouncement that the lawful sanctions clause in fact has no scope
of application and should therefore be ignored. Specifically, they state that:
[A]ll attempts to find a meaningful scope of application of the lawful

sanctions clause in accordance with the wording of Article 1, the object
and purpose of the Convention and other rules of international treaty and
customary international law have failed. The systematic interpretation of
Article 1 in accordance with the general rules of interpretation laid down
in the VCLT, therefore, leads to the conclusion that the lawful sanctions
clause has no scope of application and must simply be ignored.45
This argument is compelling. However, a number of scholars have expressed

the view that there are acts that constitute the intentional infliction of severe
pain or suffering that are perpetrated by public officials for one of the pro-
hibited purposes that are nevertheless exempted from being categorised as
torture. The use of long-term imprisonment as a punishment for serious
crimes is perhaps the most frequently cited example.46 A sentence of life
46 See for example: Nigel S Rodley, Report of the Special Rapporteur on Torture and Other Cruel, Inhuman
or Degrading Treatment or Punishment, UN Doc E/CN.4/1997/7 (10 January 1997) [8]; Sarah
Joseph, Jenny Schultz and Melissa Castan, The International Covenant on Civil and Political Rights:
Cases, Materials, and Commentary (2nd ed, Oxford University Press, Oxford 2004) [9.18].
imprisonment for murder, for example, has the potential to constitute the
intentional infliction of severe mental pain or suffering carried out by a public
official for the purpose of punishment. Nonetheless, imprisonment per se is
generally regarded as a legitimate form of punishment.47 For example, former
Special Rapporteur Nigel Rodley states that ‘the “lawful sanctions” exclu-
sion must necessarily refer to those sanctions that constitute practices widely
accepted as legitimate by the international community, such as the depriva-
tion of liberty through imprisonment, which is common to almost all penal
systems.’48 In fact, in Rodley’s view, imprisonment may be the only example
of conduct that falls within the lawful sanctions clause. Accordingly, Rodley
reflects that:
[T]he role of the ‘lawful sanctions’ exclusion must be very restricted: its
role may be solely to clarify that ‘torture’ does not include mental anguish
resulting from the very fact of incarceration. This specific category of
mental suffering can indeed be quite severe, but is a natural and to some
degree intended consequence of the use of incarceration as punishment
for serious crimes’49
Sarah Joseph, Jenny Schultz and Melissa Castan express a similar view. They
state that:
‘Lawful’ should be interpreted so as to permit sanctions that are oth-

erwise permitted under CAT and other relevant international law. For
example, imprisonment for reasonably serious crimes comes within such
a definition of ‘lawful’, so the pain and suffering caused by such imprison-
ment to an extremely claustrophobic person would be excluded from the
definition.50
Thus Joseph, Schultz and Castan use the example of imprisonment of an

extremely claustrophobic person to demonstrate the applicability of the lawful
sanctions exemption. In their view, such imprisonment would be lawful
despite the fact that it may fall within the elements of the article 1 definition
of torture. It should be noted that Manfred Nowak expressly disagrees with
this approach, stating that ‘it is difficult to see how lawful imprisonment can
47 Imprisonment per se should be distinguished from certain conditions of imprisonment (such as

conditions involving deprivation of sleep, food or water) that may contravene the Convention.
48 Nigel S Rodley, Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, UN Doc E/CN.4/1997/7 (10 January 1997) [8].
49 Nigel Rodley and Matt Pollard, ‘Criminalisation of Torture: State Obligations under the United
Nations Convention against Torture and other Cruel, Inhuman or Degrading Treatment or
Punishment’ (2006) 2 European Human Rights Law Review 115, 121.
Rights: Cases, Materials, and Commentary (2nd ed, Oxford University Press, Oxford 2004) [9.18]
(citations omitted).
amount to torture as defined in Article 1 of CAT and, accordingly, would be
in need of exception by the lawful sanctions clause.’51
Thus it is unclear what, if any, is the precise scope of the lawful sanctions
clause. If it has no scope of application then there is no need to consider
whether restrictions on reproductive freedom fall within the lawful sanctions
clause. However, assuming that it has some scope of application, it is submit-
ted that an interpretation that views ‘lawful’ as constituting lawful under
domestic law is untenable. As such, the interpretation that views ‘lawful sanc-
tions’ as constituting sanctions that are lawful pursuant to international law is
the more convincing interpretation. Consequently, assuming the validity of
the second (and more broadly accepted) interpretation of the lawful sanctions
clause, the remainder of this chapter considers whether restrictions on repro-
ductive freedom fall within the lawful sanctions exemption.
5 Application of the lawful sanctions clause to restrictions on

reproductive freedom
So far, this chapter has presented the view that an interpretation of the lawful
sanctions clause that exempts conduct that is legal under domestic law is unten-
able. On this basis, legal restrictions on abortion or involuntary sterilisation
procedures authorised by law do not fall within the lawful sanctions clause
simply by virtue of their forming a part of domestic law. Accordingly, the real
question is whether restrictions on reproductive freedom constitute ‘lawful
sanctions’ under international law. It is submitted that restrictions on abortion
and involuntary sterilisation procedures do not fall within this interpretation
of the lawful sanctions exemption for two reasons. First, these restrictions
on reproductive freedom do not fall within the meaning of ‘sanctions’ and
second, neither restrictions on abortion nor involuntary sterilisation proce-
dures are ‘lawful’ under international law.
Restrictions on abortion and involuntary sterilisation procedures are
not ‘sanctions’ properly so called. The Butterworths Concise Australian Legal
Dictionary defines ‘sanction’ as a ‘penalty or punishment imposed for a breach
of the law, such as imprisonment or exemplary damages.’52 The Oxford
Dictionary of Law defines ‘sanction’ as ‘a punishment for a crime.’53 Thus the
word ‘sanction’ frequently conjures up images of imprisonment or corporal
punishment. Accordingly, certain forms of conduct that may constitute tor-
ture, such as amputation as a penalty for theft, also fall within the meaning
of the term ‘sanction’. Other forms of conduct that may constitute torture,
such as female genital mutilation (FGM), do not fall within the meaning of
51 Manfred Nowak, ‘Challenges to the Absolute Nature of the Prohibition of Torture and Ill-
Treatment’ (2005) 23(4) Netherlands Quarterly of Human Rights 674, 682.
52 Peter Butt, Butterworths Concise Australian Legal Dictionary (3rd ed, LexisNexis Butterworths,
Chatswood, 2004) 387.
53 Jonathan Law and Elizabeth A Martin (eds), Oxford Dictionary of Law (7th ed, Oxford University
Press, Oxford, 2009) 492.
the term ‘sanction’. FGM, for example, frequently constitutes the intentional
infliction of severe pain or suffering for a discriminatory purpose (discrimi-
nation against women) and is often perpetrated with the acquiescence of a
public official.54 It does not constitute a ‘sanction’; girls who are subjected to
FGM are not being punished for a crime, the act of FGM is not perpetrated as
a response to a breach of the law. Similarly, legal restrictions on access to abor-
tion and involuntary sterilisation procedures do not constitute ‘sanctions’;
they are not a response to a breach of the law. Such restrictions on reproduc-
tive freedom are analogous to FGM in that they are forms of conduct that
specifically injure women that are not ordered by a court in response to the
commission of a crime. Accordingly, restrictions on abortion and involuntary
sterilisation procedures do not fall within the ‘lawful sanctions’ exemption
because they do not amount to ‘sanctions’.
The second reason why restrictions on abortion and involuntary sterilisa-
tion procedures do not fall within the ‘lawful sanctions’ exemption is that
such restrictions on reproductive freedom are not explicitly allowed under
international law. In other words, if ‘lawful sanctions’ is interpreted to mean
lawful under international law, then restrictions on reproductive freedom can
only constitute ‘lawful sanctions’ if they are authorised under international
law. There are certain forms of conduct that appear to constitute torture or
CIDT but that are nevertheless explicitly allowed under international law. For
example, it is arguable that the death penalty is a form of torture or CIDT.55
However, article 6 of the ICCPR specifically provides for the death penalty
(subject to certain conditions), stating that ‘sentence of death may be imposed
only for the most serious crimes.’56 Accordingly, whereas the death penalty is
explicitly provided for in the ICCPR, there is no binding international legal
document that explicitly authorises restrictions on abortion or involuntary
sterilisation procedures. Consequently, it is difficult to view such restrictions
on reproductive freedom as ‘lawful’ under international law.
54 For a discussion of FGM as torture see: Manfred Nowak, Report of the Special Rapporteur on Torture
and Other Cruel, Inhuman or Degrading Treatment or Punishment, UN Doc A/HRC/7/3 (15 January
2008) [50]–[55].
55 See for example: the judgment of the South African Constitutional Court in State v Makwanyane
and Mchunu, Case No CCT/3/94. For a discussion of the approach of the CAT Committee to
the question of capital punishment see: Sarah Joseph et al, Seeking Remedies for Torture Victims:
A Handbook on the Individual Complaints Procedures of the UN Treaty Bodies (World Organisation
against Torture, Geneva, 2006) 228–229; Manfred Nowak and Elizabeth McArthur, The United
Nations Convention against Torture: A Commentary (Oxford University Press, Oxford/New York,
2008) 565.
56 See: International Covenant on Civil and Political Rights, opened for signature 16 December 1966,
999 UNTS 171, art 6(2) (entered into force 23 March 1976). For a discussion of the Human
Rights Committee’s approach to the matter of capital punishment see: Manfred Nowak, UN
168–172. For a discussion of the view that the death penalty may violate the prohibition of tor-
ture and CIDT despite the fact that it is allowed under art 6 of the ICCPR see: Manfred Nowak
and Elizabeth McArthur, The United Nations Convention against Torture: A Commentary (Oxford
University Press, Oxford/New York, 2008) 565–566.
6 Conclusion
Manfred Nowak and Elizabeth McArthur take the view that the lawful sanc-
tions clause has no scope of application. If this is the case, then restrictions
on reproductive freedom clearly do not fall within this exemption. However,
assuming that the lawful sanctions clause has some scope of application, it is
necessary to consider whether ‘lawful’ refers to lawful under domestic law or
lawful under international law. The view that ‘lawful’ refers to lawful under
domestic law is untenable as such an interpretation would allow States to avoid
violating article 1 simply by legalising conduct that would otherwise consti-
tute torture. This interpretation of the lawful sanctions clause is incompatible
with the object and purpose of CAT.57 However, even if the lawful sanctions
clause is interpreted as precluding conduct that is lawful under international
law from being categorised as torture, restrictions on reproductive freedom
still do not fall within this exemption. There are two key reasons for this
conclusion: first, restrictions on abortion and involuntary sterilisation pro-
cedures do not fall within the meaning of the term ‘sanction’ and, second,
these restrictions on reproductive freedom are not explicitly authorised under
international law.
9 Cruel, inhuman or degrading
treatment
Each State Party shall undertake to prevent in any territory under its
jurisdiction other acts of cruel, inhuman or degrading treatment or
punishment which do not amount to torture as defined in article 1,
when such acts are committed by or at the instigation of or with the
consent or acquiescence of a public official or other person acting in
an official capacity. In particular, the obligations contained in articles
10, 11, 12 and 13 shall apply with the substitution for references to
torture of references to other forms of cruel, inhuman or degrading
treatment or punishment.1
1 Introduction
Up to this point, this book has considered whether restrictions on abortion
and involuntary sterilisation procedures fall within the definition of torture
contained in article 1 of the Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment (CAT) and has concluded
that both forms of restrictions on reproductive freedom may fall within the
article 1 definition of torture. It now turns to consider whether, in circum-
stances in which restrictions on abortion and involuntary sterilisation do
not constitute torture, they may fall within the notion of cruel, inhuman or
degrading treatment (CIDT) described in article 16 of CAT. It should be
noted at the outset that the absolute prohibition that applies in relation to
torture also applies in relation to CIDT.2 Further, the prohibition of CIDT is
also non-derogable, meaning that in no circumstances is CIDT permissible.3
2 Sonko v Spain, Committee against Torture, Communication No 368/2008, UN Doc CAT/
C/47/D/368/2008 (20 February 2012) [10.4]; Manfred Nowak, ‘What Practices Constitute
Torture?: US and UN Standards’ (2006) 28 Human Rights Quarterly 809, 836; Christian M
De Vos, ‘Mind the Gap: Purpose, Pain, and the Difference between Torture and Inhuman
Treatment’ (2007) 14 Human Rights Brief 4, 7.
Treatment or Punishment, UN Doc E/CN.4/2006/6 (23 December 2005) [36]; Claudio Grossman,
This chapter begins by considering the different consequences of categoris-
ing conduct as torture versus CIDT as a mechanism for explaining the sig-
nificance of the distinction. It then proceeds to discuss the meaning of CIDT
and to consider the types of conduct that may constitute CIDT before delving
into the distinctions between torture, inhuman treatment and degrading
treatment. It should be noted that ‘cruel’ and ‘inhuman’ are generally viewed
as synonyms. In fact, article 3 of the European Convention for the Protection
of Human Rights and Fundamental Freedoms (ECHR) refers only to torture,
inhuman or degrading treatment and fails to mention the word ‘cruel’.4
Therefore, the distinctions to be considered are the distinctions between (1)
torture, (2) inhuman treatment and (3) degrading treatment.
2 Consequences of categorising conduct as torture or CIDT

As already mentioned, one of the main reasons why it is important to consider
the distinction between torture and CIDT is that, traditionally, different
consequences have attached to the perpetration of torture as against CIDT.
Interestingly, the Human Rights Committee (HRC) generally refrains from
distinguishing between torture and CIDT with respect to the consequences
attaching to each. However, prima facie, CAT distinguishes between those
State obligations that attach only to torture and those that attach to both tor-
ture and CIDT. Further, the Committee against Torture (CAT Committee)
has traditionally distinguished between such State obligations in its case
law. Nonetheless, in recent years, particularly since the release of General
Comments 2 and 3, there are indications that the CAT Committee may
be moving towards an approach akin to that of the HRC and that it may
be beginning to blur the boundaries between those State obligations that
apply to torture only and those State obligations that apply to both torture
and CIDT. Even if this does occur, it is likely that the principle of universal
jurisdiction will continue to attach to torture only and the special stigma
that applies to torture and not CIDT will remain.5 Further, it should be
noted that in the sphere of customary international law there is some debate
regarding whether the status of jus cogens extends to the prohibition of CIDT
or applies to the prohibition of torture only. If only the prohibition of torture
constitutes a peremptory norm of international law, this is significant as it
means that all States are bound by the laws relating to the prohibition of
torture but not the laws relating to the prohibition of CIDT.6
‘Statement by the Chairperson of the Committee against Torture to the 64th Session of the
General Assembly’ (2010) 17 Human Rights Brief 34, 36.
4 European Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signa-
ture 4 November 1950, ETS 5, art 3 (entered into force 3 September 1953).
5 The concept of universal jurisdiction is discussed in section (c) of this part and the notion that
there is a special stigma that applies to torture is discussed in section (d) of this part.
6 For a discussion of the concept of jus cogens see: Gillian D Triggs, International Law: Contemporary
Principles and Practices (2nd ed, LexisNexis, Chatswood, 2011) [2.20]
Cruel, inhuman or degrading treatment 221
(a) Article 7 of the ICCPR7

In general, the HRC does not distinguish between torture and CIDT with
respect to the consequences attaching to each. In General Comment 20, it
asserts that ‘no derogation from the provision of article 7 is allowed’, even in
situations of public emergency and that ‘no justification or extenuating cir-
cumstances may be invoked to excuse a violation of article 7 for any reasons,
including those based on an order from a superior officer or public authority.’8
The fact that the HRC refers to article 7 as a whole, and not merely the prohi-
bition of torture, indicates that it is referring to the prohibition of torture and
CIDT in its comments (as opposed to torture alone). This approach is rein-
forced by article 4 of the ICCPR, which allows States to derogate from their
treaty obligations in ‘time of public emergency’ but which goes on to state
that certain articles, including article 7, are non-derogable. In other words,
in line with the approach of the HRC, the text of the ICCPR itself specifies
the non-derogability of State obligations relating to both torture and CIDT.
Similarly, the HRC specifically asserts that States must take measures to
‘prevent and punish’ acts of torture and CIDT and must not expose individu-
als to the danger of torture or CIDT ‘upon return to another country by way
of their extradition, expulsion or refoulement.’9 Further, the HRC stresses
the inadmissibility of evidence ‘obtained through torture or other prohibited
treatment’, the requirement that States penalise torture and CIDT, the right
to complain ‘against maltreatment prohibited by article 7’ under domestic
law and the duty of States to hold responsible those who violate article 7.10
In this context, the HRC has also emphasised the responsibility of States to
investigate allegations of maltreatment and to provide victims with an effec-
tive remedy.11 Nigel Rodley and Matt Pollard provide a useful synopsis of the
approach of the HRC to the consequences of perpetrating torture or CIDT.
In their view:
7 As stated previously in this book, article 7 of the ICCPR states that ‘[n]o one shall be sub-
jected to torture or to cruel, inhuman or degrading treatment or punishment.’ See: International
Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171
(entered into force 23 March 1976).
1992) [3].
1992) [8]–[9].
1992) [13]–[14].
1992) [14].
[t]he elements common to both torture and other ill-treatment, reflected
in the general practice of the Human Rights Committee, are summed up
as consisting of at least the following obligations on governments: (a) to
investigate complaints, (b) to establish the responsibility of individual
perpetrators, and (c) to provide effective remedies to victims, including
compensation. (Frequently also the Committee will call for the provision
of adequate medical care for the victim.)12
Thus it seems that the HRC generally attributes the same consequences to
both torture and CIDT.
(b) CAT
The wording of CAT establishes certain clear distinctions between the
consequences of violating the article 1 prohibition of torture and the
consequences of violating the article 16 prohibition of CIDT. According to
Sarah Joseph and colleagues, ‘[a] breach of Article 16 does not attract the
same consequences under CAT as a breach of Article 1. For example, many
of the subsidiary obligations, such as the obligation to impose criminal sanc-
tions for torture under Article 4, do not explicitly apply to Article 16.’13
Manfred Nowak, a former Special Rapporteur on torture and other cruel,
inhuman or degrading treatment or punishment (Special Rapporteur) states
that:
Certain obligations under CAT apply to torture only (above all, the
obligation to criminalize acts of torture in and to apply the principle of
universal jurisdiction in this regard), whereas other obligations aimed at
prevention, in particular by means of education and training, by system-
atically reviewing interrogation rules and practices, by ensuring a prompt
and impartial ex officio investigation, and by ensuring an effective com-
plaints mechanism, as laid down in articles 10 to 13, must be equally
applied to other forms of ill-treatment as well (i.e. art. 16 (1)).14
Thus traditionally it has been widely accepted that while there are some State
obligations that apply to both torture and CIDT, there are other State obliga-
tions that are only applicable to torture.
12 Nigel Rodley and Matt Pollard, The Treatment of Prisoners under International Law (3rd ed, Oxford
University Press, Oxford, 2009) 191 (citations omitted).
13 Sarah Joseph et al, Seeking Remedies for Torture Victims: A Handbook on the Individual Complaints
Procedures of the UN Treaty Bodies (World Organisation against Torture, Geneva, 2006) 215.
Treatment or Punishment, UN Doc E/CN.4/2006/6 (23 December 2005) [37].
(i) Articles 10 to 13 of CAT

The second sentence of article 16(1) specifically states that ‘[i]n particular,
the obligations contained in articles 10, 11, 12 and 13 shall apply with the
substitution for references to torture of references to other forms of cruel,
inhuman or degrading treatment or punishment.’15 Thus the wording of
article 16 categorically confirms the applicability of articles 10 to 13 (inclu-
sive) to both torture and CIDT. Pursuant to article 10, States must educate
certain categories of people regarding the prohibition of torture and CIDT.16
Pursuant to article 11, States must systematically review ‘interrogation rules,
instructions, methods and practices as well as arrangements for the custody
and treatment of persons subjected to any form of arrest, detention or impris-
onment in any territory under its jurisdiction’ with a view to preventing the
perpetration of torture or CIDT.17 Article 12 obligates States to conduct a
prompt, competent and impartial investigation where there are reasonable
grounds to believe that an act of torture or CIDT has taken place.18 Finally,
pursuant to article 13, States must provide avenues of complaint for alleged
victims of torture and CIDT; must ensure that all such complaints are dealt
with promptly and impartially by competent authorities; and must ensure
that the complainant and witnesses are protected against possible retali-
ation.19 Thus the wording of article 16(1) makes it clear that articles 10, 11,
12 and 13 of CAT apply to CIDT in the same way as they apply to torture.
However, the question remains whether any other articles of CAT apply to
CIDT in the same way as they apply to torture.
(ii) Approach of the CAT Committee to the remaining articles of CAT

Since the drafting of the Convention there has been some uncertainty regard-
ing whether any of the State obligations set out in Part 1 of CAT, apart from
those obligations enshrined in articles 10 to 13, apply to CIDT (as well as tor-
ture). Adding to this uncertainty is the CAT Committee’s General Comment
2, which states that ‘[a]rticle 16, identifying the means of prevention of ill-
treatment, emphasizes “in particular” the measures outlined in articles 10 to
13, but does not limit effective prevention to these articles.’20 This statement
indicates that other articles that are preventative in nature, in addition to
articles 10 to 13, may apply to CIDT (as well as torture) but fails to specify
which articles. This notion that certain State obligations that have tradition-
ally been viewed as applying only to torture may also apply with respect to
CIDT is reiterated by Felice Gaer. She comments that:
[C]onditions that give rise to ill-treatment frequently facilitate torture,

and therefore the measures required to prevent torture must be applied
to prevent ill-treatment as well. To clarify that the obligation to pre-
vent torture itself is wide-ranging and that measures required to prevent
it are often congruent with measures to prevent ill-treatment, General
Comment 2 further emphasizes the fact that the obligations to prevent
torture and to prevent ill-treatment are ‘indivisible, interdependent, and
interrelated.’21
Accordingly, the CAT Committee has expressed the view that those articles
that are preventative in nature apply to both torture and CIDT.
The case law of the CAT Committee has focused on whether articles 3 and
14 apply with respect to torture only or to both torture and CIDT. These are
discussed in turn. Article 3 prohibits a State from expelling, returning, or
extraditing a person to another State where there are substantial grounds for
believing that such person would be in danger of being subjected to torture.
Many governments have interpreted this provision as applying only to tor-
ture.22 However, both the European Court of Human Rights (European Court)
and the HRC have applied this prohibition to both torture and CIDT.23 In
addition, article 16(2) of CAT specifically states that ‘[t]he provisions of this
Convention are without prejudice to the provisions of any other international
instrument or national law which prohibits cruel, inhuman or degrading
treatment or punishment or which relates to extradition or expulsion.’ The specific
reference to ‘extradition or expulsion’ suggests that the drafters intended that
the principle of non-refoulement set out in article 3 be broadly construed to
include circumstances in which a person may be subjected to CIDT.24
Nonetheless, in its case law the CAT Committee has adopted a narrow
approach. In the case of BS v Canada,25 the CAT Committee stated that
Review 187, 196.
Commentary (Oxford University Press, Oxford/New York, 2008) 573. See for example: Soering v
United Kingdom (1989) 161 Eur Court HR (ser A); NG v Canada, Human Rights Committee,
Communication No 469/1991, UN Doc CCPR/C/49/D/469/1991 (7 January 1994).
(14 November 2001).
‘article 3 of the Convention does not encompass situations of ill-treatment
envisaged by article 16.’26 Similarly, in MV v The Netherlands,27 the CAT
Committee noted that article 3 extends only to the risk of torture and not
CIDT. This view was reinforced in the decision of TM v Sweden,28 in which
the CAT Committee stated that ‘the scope of the non-refoulement obligation
described in article 3 does not extend to situations of ill-treatment envis-
aged by article 16.’29 Thus in its case law, the CAT Committee has clearly
expressed the view that article 3 applies to torture only and not CIDT.
The question of whether article 14 of CAT applies to both torture and
CIDT has also been the subject of much debate. Article 14 provides victims
with a right to a remedy. It states that:
1. Each State Party shall ensure in its legal system that the victim of an act
of torture obtains redress and has an enforceable right to fair and adequate
compensation including the means for as full rehabilitation as possible.
In the event of the death of the victim as a result of an act of torture, his
dependents shall be entitled to compensation.
2. Nothing in this article shall affect any right of the victim or other person
to compensation which may exist under national law.30
In the case of Dzemajl et al v Yugoslavia,31 the CAT Committee was confronted

with the question of whether article 14 applies to CIDT. In other words, the
CAT Committee had to decide whether the victims of CIDT had a right to a
remedy pursuant to article 14. After finding a violation of article 16, the CAT
Committee noted that the actual words of article 14 refer only to torture (and
not CIDT) and that article 16 did not include article 14 in the list of articles
that apply equally to torture and CIDT. However, the Committee decided
that:
26 BS v Canada, Committee against Torture, Communication No 166/2000, UN Doc CAT/

C/27/D/166/2000 (14 November 2001) [7.4].
(13 May 2003).
(18 November 2003) .
29 TM v Sweden, Committee against Torture, Communication No 228/2003, UN Doc CAT/
C/31/D/228/2003 (18 November 2003) [6.2]. It should be noted that the question of whether
the Convention prohibits a State from expelling a person where that person is at risk of being
subjected to CIDT in the receiving country is a different question from whether the actual act
of expelling a person itself constitutes CIDT. The Committee has indicated that in exceptional
circumstances the actual act of expelling a person may constitute CIDT. See: Manfred Nowak
and Elizabeth McArthur, The United Nations Convention against Torture: A Commentary (Oxford
University Press, Oxford/New York, 2008) 574.
(21 November 2002).
[A]rticle 14 of the Convention does not mean that the State party is not
obliged to grant redress and fair and adequate compensation to the victim
of an act in breach of article 16 of the Convention. The positive obliga-
tions that flow from the first sentence of article 16 of the Convention
include an obligation to grant redress and compensate the victims of an
act in breach of that provision. The Committee is therefore of the view
that the State party has failed to observe its obligations under article 16
of the Convention by failing to enable the complainants to obtain redress
and to provide them with fair and adequate compensation.32
Thus in this case, the CAT Committee found that while the article 14 right
to a remedy did not apply in respect of CIDT, article 16 itself implicitly
imposed on States the obligation to ‘grant redress and compensate’ victims
of CIDT. Therefore, an equivalent obligation to that in Article 14, which
applies in situations of torture, is found within Article 16 itself with regard
to inhuman and degrading treatment.
The CAT Committee reached a similar conclusion in the 2009 decision of
Osmani v Republic of Serbia.33 This case involved the physical and verbal abuse
of a Romani man while the settlement in which he lived was being demol-
ished and he was being evicted. The complainant alleged that Serbia had
violated article 16 and a number of other articles including article 14 as it had
failed to compensate him for his suffering. The CAT Committee found that
Serbia had violated its article 16(1) obligation to prevent CIDT. With regard
to the complainant’s claim to compensation, the Committee held that while
article 14 imposed an obligation to compensate only victims of torture and
not CIDT, an obligation to compensate victims of CIDT could be deduced
from article 16 itself. In the words of the Committee:
The positive obligations that flow from the first sentence of article 16 of the
Convention include an obligation to grant redress and compensate the victims of an
act in breach of that provision. The Committee is therefore of the view that
the State party has failed to observe its obligations under article 16 of the
Convention by failing to enable the complainant to obtain redress and to
provide him with fair and adequate compensation.34
Thus in its case law, the CAT Committee has taken the view that the article
14 right to a remedy applies only to victims of torture (and not victims of
CIDT) but that article 16 itself provides a right to compensation for victims
of CIDT.
32 Dzemajl et al v Yugoslavia, Committee against Torture, Communication No 161/00, UN Doc
CAT/C/29/D/161/2000 (21 November 2002) [9.6].
(25 May 2009).
34 Osmani v Republic of Serbia, Committee against Torture, Communication No 261/2005, UN Doc
CAT/C/42/D/261/2005 (25 May 2009) [10.8] (emphasis added, citations omitted).
In contrast, the Committee’s General Comment 3, released in 2012, indi-
cates that the Committee views article 14 itself as providing a right to a remedy
for victims of both torture and CIDT. This General Comment is particularly
relevant in this context as it specifically addresses the ‘Implementation of
article 14 by States Parties.’35 The Committee begins by noting that ‘article
14 is applicable to all victims of torture and other acts of cruel, inhuman or
degrading treatment or punishment’, thereby clearly expressing the view that
the article 14 right to a remedy applies with respect to victims of violations
of both articles 1 and 16 of CAT.36 The General Comment then proceeds to
detail precisely what the article 14 obligation entails and to repeatedly refer
to victims of both torture and CIDT as part of this discussion. Consequently,
General Comment 3 indicates that the CAT Committee is beginning to adopt
a broader approach to article 14 than the one that is expressed in its case law.
Whereas in its case law the Committee has viewed article 14 as applying only
to victims of torture and has regarded article 16 as itself giving rise to a right
to a remedy, General Comment 3 indicates a shift in approach to one that
views article 14 as applying to both victims of torture and CIDT.37
(c) Universal jurisdiction

While there may be some discussion and confusion regarding precisely which
articles of CAT apply to torture only and which apply to torture and CIDT,
the principle of universal jurisdiction applies to torture only. The concept of
‘universal jurisdiction’ has been explained as follows:
An offence subject to universal jurisdiction is one which comes under

the jurisdiction of all states wherever it be committed. Inasmuch as by
general admission, the offence is contrary to the interests of the inter-
national community, it is treated as a delict jure gentium and all states
are entitled to apprehend and punish the offenders. Clearly the purpose
of conceding universal jurisdiction is to ensure that no such offence goes
unpunished.38
Article 5 of CAT states that:
1. Each State Party shall take such measures as may be necessary to establish
its jurisdiction over the offences referred to in article 4 in the following
cases:

Doc CAT/C/GC/3 (19 November 2012).
Doc CAT/C/GC/3 (19 November 2012) [1].
37 It should be noted that while theoretically significant, in practice this may amount to a distinc-
tion without difference.
38 Ivan Shearer, Starke’s International Law (11th ed, Butterworths, London, 1994) 212.
a) When the offences are committed in any territory under its jurisdic-
tion or on board a ship or aircraft registered in that State;
b) When the alleged offender is a national of that State;
c) When the victim was a national of that State if that State considers it
appropriate.
2. Each State Party shall likewise take such measures as may be necessary
to establish its jurisdiction over such offences in cases where the alleged
offender is present in any territory under its jurisdiction and it does not
extradite him pursuant to article 8 to any of the States mentioned in
Paragraph 1 of this article.
3. This Convention does not exclude any criminal jurisdiction exercised in
accordance with internal law.39
Thus pursuant to paragraph 1 of article 5, a State is obligated to estab-

lish jurisdiction over acts of torture perpetrated: in any territory under its
jurisdiction; by a national of the State; or against a national of the State (if
appropriate). Further, pursuant to paragraph 2 of article 5, the mere presence
of an alleged offender in any territory under a State’s jurisdiction is enough
to enliven the State’s obligation to establish jurisdiction over the offences. As
a result of paragraph 2, it is clear that the principle of universal jurisdiction
attaches to acts of torture.40
According to J Herman Burgers and Hans Danelius, this ‘article must be
seen as a cornerstone in the Convention, an essential purpose of which is to
ensure that a torturer does not escape the consequences of his [or her] acts by
going to another country.’41 Nonetheless, despite the significance of article 5,
the CAT Committee has only decided one case in which a violation of article
5(2) was alleged. The case of Guengueng et al v Senegal42 resulted in a decision
that Senegal had violated article 5(2) of CAT by failing to establish juris-
diction over Hissène Habrè, a former President of Chad who was allegedly
responsible for acts of torture perpetrated against the complainants. Habrè
had resided in Senegal since being ousted as President of Chad. Thus it is clear
that the failure of a State to establish jurisdiction over alleged perpetrators of
acts of torture constitutes a violation of article 5 of CAT. There has been no
suggestion by the CAT Committee that the principle of universal jurisdiction
is applicable to acts of CIDT.
(Martinus Nijhoff Publishers, Dordrecht, 1988) 132–133.
42 Guengueng et al v Senegal, Committee against Torture, Communication No 181/2001, UN Doc
CAT/C/36/D/181/2001 (19 May 2006).
It should be noted that it is not sufficient for States simply to establish
jurisdiction over alleged torturers. Pursuant to article 4, States must estab-
lish torture as an offence under domestic criminal law, article 6 requires
States to take alleged torturers into custody where sufficient evidence exists,
article 7 requires States to prosecute alleged torturers, article 8 specifies
that torture is an extraditable offence and article 9 requires States to assist
one another in the prosecution of alleged torturers. Thus articles 4 to 9 of
CAT establish torture as an international crime with universal jurisdiction
as the cornerstone. According to Manfred Nowak and Elizabeth McArthur,
‘the obligations derived from Articles 4 to 9 apply exclusively to torture as
defined in Article 1. States are, therefore, not required to lay down the offence
of inhuman treatment as a crime in domestic law and apply the principles of
universal jurisdiction to these forms of ill-treatment.’43 Consequently, the
status of an ‘international crime’ does not apply with respect to CIDT and
is therefore a key distinction between conduct categorised as torture and
conduct categorised as CIDT.
In other words, whereas the principle of universal jurisdiction applies in
relation to conduct categorised as torture, a consequence of which is to label
such conduct an international crime and label the perpetrator of the conduct
an international criminal, this consequence does not apply to conduct cat-
egorised as CIDT. Further, whereas the HRC generally fails to distinguish
between torture and CIDT with respect to the consequences attaching to
each (as discussed earlier), it is worth noting that the ICCPR does not pro-
vide for the establishment of universal jurisdiction. Neither has the HRC
mentioned the principle in its jurisprudence. Therefore, it would seem that
even under the ICCPR the principle of universal jurisdiction is inapplicable
to CIDT.44
(d) Stigma
In addition to the different State obligations that arise with respect to conduct
that is categorised as torture as against conduct that is categorised as CIDT,
there is another more abstract consequence of categorising conduct as torture
rather than CIDT. Conduct that is categorised as torture attracts a certain
‘stigma’ that does not attach to CIDT. For example, as discussed already, the
applicability of universal jurisdiction to acts of torture but not acts of CIDT
serves to stigmatise torture as an international crime and torturers as interna-
tional criminals; this stigma does not apply with respect to CIDT.
Manfred Nowak has emphasised the ‘special stigma’ of torture, noting that
‘the intentional infliction of severe pain or suffering for a specific purpose
Rights: Cases, Materials, and Commentary (2nd ed, Oxford University Press, Oxford 2004) [9.131].
requires a particularly strong moral stigma and legal prohibition.’45 Further,
in its seminal decision of Ireland v United Kingdom,46 the European Court
emphasised the distinct stigma that attaches to torture. The court stated
that ‘it was the intention that the Convention, with its distinction between
“torture” and “inhuman or degrading treatment”, should by the first of these
terms attach a special stigma to deliberate inhuman treatment causing very
serious and cruel suffering.’47 This perspective has been reemphasised in the
more recent decisions of Aksoy v Turkey48 and Aydın v Turkey.49 In Aksoy
v Turkey,50 in a sentence echoing the language just quoted from Ireland v
United Kingdom,51 the court stated that ‘this distinction [between torture and
inhuman treatment] would appear to have been embodied in the Convention
to allow the special stigma of “torture” to attach only to deliberate inhuman
treatment causing very serious and cruel suffering.’52
When discussing the meaning and role of the prohibition of torture in
United States law, Jeremy Waldron articulates the idea that torture is ‘dif-
ferent’ from other prohibited conduct by categorising torture as a ‘legal
archetype.’53 In his view, the prohibition of torture functions as an arche-
type in that ‘it is vividly emblematic of our determination to sever the link
between law and brutality, between law and terror, and between law and the
enterprise of breaking a person’s will.’54 In the course of elevating the prohibi-
tion of torture to the level of a legal archetype, comparing its significance to
the habeas corpus principle, Waldron acknowledges the particular stigma that
attaches to torture as compared with other human rights abuses. For example,
in his view, one of the reasons why the prohibition of torture is particularly
significant is that, if society loses its conviction in the wrongness of torture,
this will lead to a tolerance for other forms of brutality; if torture is tolerated
then anything goes.55 Therefore, the prohibition of torture does not merely
articulate a prohibition of certain conduct but represents society’s condemna-
tion of all forms of inhumane treatment. This explains why torture has such
47 Ireland v United Kingdom (1978) 25 Eur Court HR (ser A) [167].
48 (1996) VI Eur Court HR 21987/93.
49 (1997) VI Eur Court HR 23178/94.
50 (1996) VI Eur Court HR 21987/93.
52 Aksoy v Turkey (1996) VI Eur Court HR 21987/93 [63].
53 Waldron defines ‘archetype’ as: ‘a particular provision in a system of norms which has a signifi-
cance going beyond its immediate normative content, a significance stemming from the fact that
it sums up or makes vivid to us the point, purpose, principle, or policy of a whole area of law.’
See: Jeremy Waldron, ‘Torture and Positive Law: Jurisprudence for the White House’ (2005)
105 Columbia Law Review 1681, 1723.
a strong stigma attached to it and why it is viewed with such a high level of
gravity. Thus Waldron goes much further than simply acknowledging the
particular stigma that attaches to torture. He discusses the reasons for this
stigmatisation by categorising torture as an ‘archetype’, thereby attribut-
ing to the prohibition a significance that is much broader than simply a
conceptualisation of the prohibition of torture as a legal rule or principle.
Interestingly, while the focus of Waldron’s article is on the prohibition of
torture as a legal archetype, he at one point deviates from this discussion to
emphasise his view that the prohibition of CIDT is also an extremely serious
prohibition and that one should not get caught up in technical definitional
distinctions given the immense gravity of both torture and CIDT. In fact,
Waldron specifically addresses the issue of stigma when he states that ‘we
must not become so jaded that the phrase “cruel, inhuman, and degrading
treatment” simply trips off the tongue as something much less taboo than
torture.’56 He goes even further in his blurring of the distinction between
torture and CIDT, stating that ‘it would not be hard to argue that the
prohibitions on inhuman treatment in the Universal Declaration of Human
Rights, the Covenant, and the ECHR are as much a paradigm of the interna-
tional human rights movement as the absolute prohibition on torture.’57 In
this way, Waldron seems to acknowledge that a stigma attaches to torture,
while one does not attach to CIDT, at the same time questioning the validity
of this differentiation and indicating his belief that both torture and CIDT
should be stigmatised and rendered ‘taboo’.
The discussion so far has considered the consequences of categorising con-
duct as torture versus CIDT, thereby demonstrating the potential significance
of categorising certain restrictions on reproductive freedom as torture versus
CIDT. The chapter now proceeds to explore the concept of CIDT and to
examine the distinction between torture, inhuman treatment and degrading
treatment.
3 What is CIDT?
(a) Overview
One of the key difficulties in determining whether conduct constitutes CIDT
is that, unlike the term ‘torture’, which is defined in article 1 of CAT, the
term CIDT contains no definition. It is defined by reference to torture rather
than by way of an actual substantive definition. Thus article 16(1) refers to
‘other acts of cruel, inhuman or degrading treatment or punishment which
do not amount to torture.’ Further, not only is the actual treaty text vague
but both the HRC and the CAT Committee have generally avoided any
attempt to articulate a definition of CIDT.58 In fact, in General Comment 2,
the CAT Committee explicitly states that ‘the definitional threshold between
ill-treatment and torture is often not clear.’59 Nigel Rodley, a former Special
Rapporteur, has commented favourably on those aspects of the General
Comment that recognise the difficulties inherent in drawing sharp distinc-
tions between torture and CIDT. For example, he has remarked that ‘one of
the excellent dimensions of the General Comment is the way it links cruel,
inhuman, degrading treatment or punishment so tightly to torture, that
there is a kind of implicit reintegration of cruel and inhuman treatment or
punishment into the same sort of status as torture.’60 Further, the lines are so
blurred that the concluding observations of both the CAT Committee and
the HRC frequently fail to specify whether the conduct that is the subject
of discussion is torture or inhuman treatment and, in its case law, the HRC
frequently fails to specify whether conduct amounts to torture or CIDT when
finding a violation of article 7.61 The inherent vagueness of the concept has
led to much scholarly discourse regarding the distinction between torture and
CIDT, which is discussed later in this chapter. Before the distinction between
torture and CIDT can be analysed, it is useful to engage in a more detailed
examination of the concept of CIDT, as a standalone concept.
The case of Ireland v United Kingdom62 demonstrates the ambiguity and dif-
ficulty inherent in determining whether conduct constitutes torture or CIDT.
In that case, the European Commission of Human Rights concluded that the
interrogation techniques of stress positions, hooding, restricted diets, expo-
sure to noise and sleep deprivation constituted torture whereas the European
Court concluded that they constituted inhuman treatment. Thus the same
conduct was found by the Commission to constitute torture and by the
court to constitute inhuman treatment. The more recent Abu Ghraib prison
scandal, which involved the abuse of prisoners by United States military
University Press, Oxford, 2009) 126.
60 Nigel Rodley, ‘Reflections on the Committee against Torture General Comment No 2’ (2008)
11 New York City Law Review 353, 354.
Problems 467, 473. It should be noted that the HRC has stated that ‘the assessment of what
constitutes inhuman or degrading treatment falling within the meaning of article 7 depends on
all the circumstances of the case, such as the duration and manner of the treatment, its physical
or mental effects as well as the sex age and state of health of the victim.’ See: Vuolanne v Finland,
Human Rights Committee, Communication No 265/1987, UN Doc CCPR/C/35/D/265/1987
(7 April 1989). Thus the determination of whether conduct constitutes CIDT is in part a sub-
jective evaluation: Sarah Joseph, Jenny Schultz and Melissa Castan, The International Covenant
on Civil and Political Rights: Cases, Materials, and Commentary (2nd ed, Oxford University Press,
Oxford 2004) [9.27].
contractors, also evoked a mixed response. After evidence of the abuse was
revealed to the public, including photographs of sexual humiliation, stress
positions and the threat of attack by vicious dogs, some people characterised
the abuse as torture and others felt that it was something less than torture.63
Thus a determination of whether conduct constitutes torture or CIDT to a
large extent represents the subjective perspective of the person making the
determination.
This uncertainty may suggest a need for a precise definition of CIDT or a
precise explanation of the distinction between torture and CIDT. Yet some
scholars, such as Jeremy Waldron, argue that the quest for definitional preci-
sion is dangerous. In fact, Waldron argues that ‘in almost all cases when we
replace a vague standard with an operationalized rule, the cost of diminishing
vagueness is an increase in arbitrariness.’64 According to Waldron, ‘[t]here
are some scales one really should not be on, and with respect to which one
really does not have a legitimate interest in knowing precisely how far along
the scale one is permitted to go.’65
Nevertheless, despite the lack of clarity regarding the definition of CIDT,
the commentary of the General Assembly to the UN Code of Conduct for
Law Enforcement Officials states that the term CIDT ‘has not been defined
by the General Assembly but should be interpreted so as to extend the widest
possible protection against abuses, whether physical or mental.’66 Thus while
there is no clear definition of CIDT, it seems that this notion is to be inter-
preted broadly, rather than narrowly. To illustrate the point that this concept
attracts a broad construction, the following section provides some exam-
ples of the various types of conduct that have been regarded as constituting
CIDT. The chapter then proceeds to consider in greater detail the distinction
between torture and CIDT.
(b) Conduct that constitutes CIDT

The task of providing examples of conduct that constitutes CIDT, as opposed
to torture, is replete with difficulties. Experts in the field, including the
CAT Committee itself, frequently discuss certain conduct as violating CAT
63 See for example: discussion in Charles W Murdock, ‘Why Not Tell the Truth? Deceptive
Practices and the Economic Meltdown’ (2010) 41 Loyola University Chicago Law Journal 801,
812; John M Bickers, ‘Too Little, Too Late? Why President Obama’s Well-Intentioned Reforms
of the Military Commissions May Not Be Enough to Save Them’ (2010) 31 Whittier Law Review
381, 398; Dana Carver Boehm, ‘Waterboarding, Counter-Resistance, and the Law of Torture:
Articulating the Legal Underpinnings of US Interrogation Policy’ (2009) 41 University of Toledo
Law Review 1.
66 Code of Conduct for Law Enforcement Officials, GA Res 34/169, UN GAOR, 34th sess, 106th plen
mtg, UN Doc A/34/46 (17 December 1979).
without specifying whether such conduct violates article 1 or article 16. One
of the reasons for this failure to distinguish between conduct that constitutes
torture and conduct that constitutes CIDT is that the same conduct may
amount to torture and CIDT depending on the context and particular circum-
stances surrounding such conduct. Thus, for example, intimate partner vio-
lence may in certain circumstances constitute torture, in other circumstances
constitute CIDT, or constitute neither torture nor CIDT. Accordingly, the
purpose of this section is not to provide a definitive account of what conduct
amounts to CIDT. Rather, this section endeavours to provide a number of
examples of conduct that has been considered under the rubric of CIDT
(albeit not necessarily to the exclusion of torture) in order to provide some
context for the remaining discussion that delves into the distinction between
torture and CIDT.
Conduct within and outside the context of detention has been considered
under the rubric of CIDT. Within the context of detention, appalling condi-
tions of detention and certain punishments have been found to constitute
CIDT. The CAT Committee has expressed concern about prolonged solitary
confinement and the effect that this has on a prisoner’s mental health and has
discussed this issue in the context of inhuman treatment.67 It has also criti-
cised overcrowded prisons and refugee camps in the context of article 16.68
Corporal punishment has been the subject of much debate in this context. In
its General Comment 20, the HRC expressed the view that the prohibition
of article 7 of the ICCPR ‘must extend to corporal punishment, including
excessive chastisement as an educational or disciplinary measure.’69 This posi-
tion has been confirmed in a number of decisions. For example, in Osbourne v
Jamaica,70 the HRC held that a judicial sentence of ten strokes of the tamarind
switch on the naked buttocks in the presence of 25 prison wardens contra-
vened the prohibition of CIDT. While the death penalty per se has not been
deemed to constitute CIDT, specific methods of execution have been viewed as
67 See for example: Committee against Torture, Conclusions and Recommendations on Switzerland,
177th and 178th mtg, UN Doc A/49/44 (12 June 1994) [133]; Committee against Torture,
Conclusions and Recommendations on United States of America, 36th sess, UN Doc CAT/C/USA/CO/2
(18 May 2006) [36].
68 Committee against Torture, Conclusions and Recommendations on Cameroon, 31st sess, UN
Doc CAT/C/CR/31/6 (5 February 2004) [4(b)]; Committee against Torture, Conclusions and
Recommendations on Kazakhstan, 26th sess, UN Doc A/56/44 (9, 10 and 17 May 2001) [128(h)];
Committee against Torture, Conclusions and Recommendations on Greece, 33rd sess, UN Doc CAT/C/
CR/33/2 (10 December 2004) [5(i)]; Committee against Torture, Conclusions and Recommendations
on Brazil, 26th sess, UN Doc A/56/44 (8, 9 and 16 May 2001) [119(c)]; Committee against
Torture, Conclusions and Recommendations on Costa Rica, 26th sess, UN Doc A/56/44 (10, 11 and
17 May 2001) [135(d)]; Committee against Torture, Conclusions and Recommendations on Bolivia,
26th sess, UN Doc A/56/44 (3, 4 and 10 May 2001) [95(f)].
1992) [5].
(13 April 2000).
contravening the prohibition. For example, the CAT Committee has observed
that public hanging as a method of execution could be regarded as CIDT.71
In addition, certain forced psychiatric interventions have been conceptualised
as constituting CIDT. For example, in the case of Viana Acosta v Uruguay,72
the HRC concluded that the treatment of the complainant, including the
conduct of psychiatric experiments and the forced injection of tranquilisers,
constituted inhuman treatment. Moreover, the HRC has found that the fol-
lowing conduct constitutes ‘cruel and inhuman’ treatment: beatings, mock
executions, denial of appropriate medical care and death threats.73 It has also
held that confinement in a cell for 23 hours a day without a mattress or bed-
ding, integral sanitation, natural light, options for recreation, decent food or
adequate medical care amounts to ‘cruel and inhuman’ treatment.74
The prohibition of CIDT may also be contravened outside the context of
detention. For example, excessive use of force by law enforcement officers,
such as in the course of making an arrest or in the course of controlling riots
or demonstrations, has frequently been considered under the rubric of article
16.75 Similarly, acquiescence by law enforcement personnel in the conduct of
others outside the context of detention may also contravene article 16. Thus
in the case of Dzemajl et al v Yugoslavia,76 the CAT Committee decided that
Yugoslavia had breached article 16 when police failed to prevent a mob from
destroying a Roma settlement.77 Further, in numerous concluding observa-
tions the CAT Committee has raised concerns regarding different forms of
violence against women. The Committee generally does not explicitly state in
its concluding observations whether the conduct in question breaches article
1 or article 16.78 Accordingly, one may presume that whether such conduct
is viewed as constituting torture, CIDT or in some circumstances neither
torture nor CIDT is a context-specific question; the answer depends on the
particular facts of the situation in question.
On a number of occasions the CAT Committee has raised concerns regarding
71 Committee against Torture, Conclusions and Recommendations on Afghanistan, 120th and 121st
mtg, UN Doc A/48/44 (10 November 1992) [58].
72 Human Rights Committee, Communication No 110/1981, UN Doc A/39/40 (29 March 1984).
73 See: Sarah Joseph, Jenny Schultz and Melissa Castan, The International Covenant on Civil and
Political Rights: Cases, Materials, and Commentary (2nd ed, Oxford University Press, Oxford 2004)
[9.35].
Political Rights: Cases, Materials, and Commentary (2nd ed, Oxford University Press, Oxford 2004)
[9.35].
(21 November 2002).
77 This case is also discussed in Chapter 6 of this book, which considers the meaning of the ‘public
official’ requirement in art 1 of CAT.
78 For a more in-depth discussion of the approach of the HRC and CAT Committee to whether
restrictions on reproductive freedom constitute torture or CIDT see: Chapter 10 of this book.
inadequate protection against rape and other forms of sexual violence as well
as inadequate punishment of perpetrators.79 Concern has also been expressed
regarding the prevalence of domestic violence in some States.80 Further, in his
January 2008 Report former Special Rapporteur Manfred Nowak discussed
the obligations of States Parties to CAT with respect to various forms of con-
duct outside the context of detention. Discussion of the following forms of
conduct was framed under the rubric of ‘torture and ill-treatment’: rape and
sexual violence; violence against pregnant women and denial of reproductive
rights; corporal punishment; women specific aspects of detention; intimate
partner violence; female genital mutilation and human trafficking.81 Thus
it seems that the prohibition of CIDT is broadly and imprecisely construed.
The remainder of this chapter will consider the distinction between torture
and CIDT.
4 Distinction between torture and cruel or inhuman treatment

This section considers the distinction between torture and cruel or inhu-
man treatment (inhuman treatment) as part of the general analysis
regarding the appropriate categorisation of restrictions on reproductive
freedom. As mentioned earlier in this chapter, the terms ‘cruel’ and ‘inhu-
man’ are generally viewed as synonyms so there is no need to deal with them
separately. The concept of degrading treatment is considered in a separate
section later.
Where conduct would constitute torture but for the absence of one of the
elements necessary for conduct to constitute torture, such conduct constitutes
inhuman treatment. There is some debate regarding which element, if miss-
ing, results in the conduct amounting to inhuman treatment rather than
torture. This issue is discussed in greater detail in sections (b) to (d) of this
part. However, it should be noted that, pursuant to the language of article 16,
the ‘public official’ requirement applies to CIDT in the same way as it applies
to torture. Thus the ‘public official’ element of the article 1 definition of tor-
ture will never be the distinguishing element between torture and inhuman
79 See for example: Committee against Torture, Conclusions and Recommendations on Indonesia, 27th
sess, UN Doc CAT/C/XXVII/Concl.3 (16 and 19 November 2001) [7]; Committee against
Torture, Conclusions and Recommendations on Colombia, 31st sess, UN Doc CAT/C/CR/31/1 (4
February 2004) [9].
80 See for example: Committee against Torture, Conclusions and Recommendations on Zambia, 27th
sess, UN Doc CAT/C/XXVII/Concl.4 (19 and 20 November 2001) [9]; Committee against
Torture, Conclusions and Recommendations on Cyprus, 29th sess, UN Doc CAT/C/CR/29/1 (18
December 2002) [4]; Committee against Torture, Conclusions and Recommendations on Greece,
33rd sess, UN Doc CAT/C/CR/33/2 (10 December 2004) [5(k)]; Committee against Torture,
Conclusions and Recommendations on Albania, 34th sess, UN Doc CAT/CO/34/ALB (10 and 11 May
2005) [7(o)]; Committee against Torture, Conclusions and Recommendations on Bahrain, 34th sess,
UN Doc CAT/CO/34/BHR (12 and 13 May 2005) [6(o)].
Treatment or Punishment, UN Doc A/HRC/7/3 (15 January 2008).
treatment.82 Another conceivable distinction between torture and CIDT rests
on the use of the principle of proportionality.
(a) Proportionality
The principle of proportionality clearly does not apply with respect to torture.
Thus the infliction of severe pain or suffering for a prohibited purpose can
never be ‘proportionate’. However, the view has been expressed that the prin-
ciple of proportionality applies to determining whether conduct constitutes
inhuman treatment. According to this view, the concept of proportionality
operates to exempt treatment from being classified as CIDT. Once conduct is
classified as CIDT, the principle of proportionately has no application; there
is no such concept as ‘reasonable’ or ‘proportionate’ CIDT.
Manfred Nowak has repeatedly expressed the view that the principle of
proportionality applies to a determination of whether conduct constitutes
inhuman treatment. For example, in his February 2010 Report to the General
Assembly Nowak stated that:
[O]ne may distinguish between justifiable and non-justifiable treatment
causing severe suffering. Examples where causing severe suffering may
be justifiable are the lawful use of force by the police in the exercise of
law enforcement policies (e.g. arrest of a criminal suspect, dissolution of
a violent demonstration) and of the military in armed conflict. In such
situations, the principle of proportionality has to be strictly observed. If
the use of force is not necessary and, in the particular circumstances of
the case, disproportional to the purpose achieved, it amounts to cruel or
inhuman treatment.83
While Nowak is perhaps the most vocal proponent of the application of the
principle of proportionality to a determination of whether conduct constitutes
inhuman treatment, he is not the sole voice. For example, Nigel Rodley and
Matt Pollard express the view that where force is used by agents of the State
outside the context of detention; for example during the course of arrests, to
prevent escape, or to control a crowd, the principle of proportionality applies.
Thus in their view, where force is used in such contexts, it may constitute
inhuman treatment if it is disproportionate.84
In the case of Cabal and Pasini Bertran v Australia,85 the HRC used a
82 See Chapter 6 of this book for a discussion of the ‘public official’ requirement. It should be noted
that there is no ‘public official’ requirement in the words of art 7 of the ICCPR. However, the
HRC has nevertheless required the establishment of a nexus with the State.
(7 August 2003).
proportionality-based analysis to find that the conduct of searches and the
shackling of prisoners during transportation to and from prison did not
amount to a violation of article 7. It decided that the shackling was a reason-
able measure in light of the flight risk posed by the complainants and that the
searches, necessary in the interests of maintaining the safety and security of
the prison, ‘were carried out in a manner designed to minimise the embarrass-
ment to them.’86 The CAT Committee itself appeared to recognise the princi-
ple of proportionality in the case of Keremedchiev v Bulgaria.87 In that case, the
complainant was arrested for ‘hooliganism’. According to the complainant,
during the course of his arrest he was kicked, beaten, shackled and threatened
with being shot. The Committee found that he suffered from multiple exter-
nal bruises and that ‘the injuries inflicted caused bruising to his kidneys and
blood in his urine.’88 Ultimately, the Committee decided that the conduct in
question constituted a violation of article 16 and not a violation of article 1 on
the basis that the injuries inflicted did not rise to the level of severity required
by the article 1 definition of torture. However, in the course of determining
that Bulgaria had violated article 16, the Committee recognised the principle
of proportionality. It stated that:
While recognizing that pain and suffering may arise from a lawful arrest
of an uncooperative and/or violent individual, the Committee considers
that the use of force in such circumstances should be limited to what is necessary and
proportionate … The Committee considers the complainant’s injuries too
great to correspond to the use of proportionate force by two police offic-
ers, particularly as it would appear that the complainant was unarmed.89
An integral component of the proposition that the principle of proportional-

ity applies to determining whether conduct constitutes inhuman treatment
is the view that the principle of proportionality only applies in circumstances
where the victim retains a degree of power. While it is possible to envisage a
scenario (such as prison riots) in which a detainee is not powerless and needs
to be controlled, in general the reality of detention is that a detainee is power-
less. Consequently, the example of a person who suffers from pain or suffering
inflicted outside the context of detention is the frequently provided example
of a victim who is not powerless.90 Nevertheless, it would be a mistake to
86 Cabal and Pasini Bertran v Australia, Human Rights Committee, Communication No 1020/2002,
UN Doc CCPR/C/78/D/1020/2001 (7 August 2003) [8.2].
(21 November 2008).
CAT/C/41/D/257/2004 (21 November 2008) [9.3].
CAT/C/41/D/257/2004 (21 November 2008) [9.3] (emphasis added).
presume that a victim is not powerless simply because conduct takes place
outside the context of detention. In fact, Manfred Nowak refrains from using
the language of detention, stating that in ‘a situation where one person is
under the de facto control of another and thus powerless, the test of propor-
tionality is no longer applicable.’91 For example, as discussed in Chapter 7,
women who are the victims of severe intimate partner violence may not be
detained (as the word is traditionally understood) but they may nevertheless
be powerless and the principle of proportionality should not therefore apply
to the question of whether the violence perpetrated against them constitutes
inhuman treatment. Similarly, women who are prevented from terminating
their pregnancies or who are subjected to involuntary sterilisation procedures
are generally powerless despite the fact that their suffering may take place
outside the context of detention.
Other comments of Manfred Nowak further clarify that he only advocates
the application of the proportionality principle in circumstances where the
victim retains a degree of power. His statement with respect to the dispropor-
tionate exercise of police powers in his December 2005 Report clearly makes
this point:
Whether the use of force is to be qualified as lawful, in terms of article

16 of CAT or article 7 of ICCPR, or excessive depends on the propor-
tionality of the force applied in a particular situation. Disproportionate
or excessive exercise of police powers amounts to CIDT and is always
prohibited. But the principle of proportionality, which assesses the lawful use
of force to fall outside the scope of CIDT, only applies in situations in which the
person concerned is still in a position to use force in turn against a law enforcement
official or a third person. As soon as that person ceases to be in a position to
resist the use of police force, i.e. is under the control of a law enforcement
official and becomes powerless, the principle of proportionality ceases to
apply.92
In summary, it is clear that the principle of proportionality is irrelevant to

a determination of whether conduct constitutes torture because the article
1 requirement that pain or suffering be inflicted for a prohibited purpose is
incompatible with the concept of proportionality. In other words, if severe
pain or suffering is intentionally inflicted for a prohibited purpose then it
will never be proportionate. However, the view that the principle of pro-
portionality is relevant to a determination of whether conduct constitutes
inhuman treatment in circumstances in which the victim is not completely
Treatment or Punishment, UN Doc E/CN.4/2006/6 (23 December 2005) [38] (emphasis added,
citations omitted).
powerless is gaining traction.93 Nonetheless, in circumstances in which the
victim is powerless, whether inside or outside the context of detention, the
proportionality principle is inapplicable. Therefore, in light of the discussion
in Chapter 7, which argues that women who are prevented from terminating
their pregnancies or who are subjected to involuntary sterilisation procedures
are ‘powerless’, the principle of proportionality is not a relevant consideration
in the analysis of whether restrictions on reproductive freedom constitute
CIDT.
(b) Distinction of severity

The traditional view is that the distinction between torture and inhuman
treatment turns on the severity of pain or suffering. In other words, accord-
ing to this view, where pain or suffering is not sufficiently severe to amount
to torture, then inhuman treatment is the relevant category for the conduct
in question. The European system in particular has traditionally ascribed
to the view that torture is an aggravated form of inhuman treatment.94
According to Nigel Rodley, ‘[t]he European Court of Human Rights has
maintained an insistence on relative intensity of pain or suffering, which
has to be an aggravated form of that already serious enough to amount to
inhuman treatment.’95 This approach to the distinction between torture and
inhuman treatment is known as the ‘vertical’ approach because the three cat-
egories of torture, inhuman treatment and degrading treatment are viewed as
separate categories, sitting one beneath the other, in a hierarchy of seriousness
in which ‘torture’ sits at the apex and ‘degrading treatment’ sits at the bottom
based on the degree of pain or suffering.96 The European Court’s decision in
Ireland v United Kingdom97 exemplifies this approach. In that case, the court
stated that:
In order to determine whether the five techniques should also be qualified

as torture, the Court must have regard to the distinction, embodied in
Article 3, between this notion and that of inhuman or degrading treat-
ment. In the Court’s view, this distinction derives principally from a difference
93 See for example: Manfred Nowak, Report of the Special Rapporteur on Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment, UN Doc E/CN.4/2006/6 (23 December 2005);
Manfred Nowak, Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, UN Doc A/HRC/13/39 (9 February 2010); Nigel Rodley and Matt
Pollard, The Treatment of Prisoners under International Law (3rd ed, Oxford University Press,
Oxford, 2009) 134; Keremedchiev v Bulgaria, Committee against Torture, Communication No
257/2004, UN Doc CAT/C/41/D/257/2004 (21 November 2008).
94 See for example: Ireland v United Kingdom (1978) 25 Eur Court HR (ser A).
Problems 467, 489.
Quarterly 366, 370.
in the intensity of suffering inflicted. Although the five techniques, as applied
in combination, undoubtedly amounted to inhuman and degrading treat-
ment … they did not occasion suffering of the particular intensity and
cruelty implied by the word torture as so understood.98
While more commonly associated with the European system, this approach
is also apparent in some decisions of the CAT Committee. For example, in
Keremedchiev v Bulgaria,99 the CAT Committee, in finding that the conduct
of police officers amounted to CIDT and not torture, stated that:
While noting, on the basis of the evidence provided, that the injuries
inflicted do not appear to amount to ‘severe pain and suffering’, within
the meaning of article 1, paragraph 1, it does consider that the treatment
of the complainant by the police officials amounts to acts of cruel, inhu-
man or degrading treatment or punishment within the terms of article
16 of the Convention.100
However, this conception of the distinction between torture and inhuman

treatment has been heavily criticised. A key criticism of invoking severity
of pain or suffering as the distinguishing feature between the two concepts
concerns the difficulty inherent in objectively establishing the intensity of
pain or suffering.101 Ireland v United Kingdom102 (mentioned earlier) is a well-
known example of the subjectivity inherent in a determination of whether the
severity threshold has been reached. In this case, the European Commission
of Human Rights concluded that the interrogation techniques of stress posi-
tions, hooding, restricted diets, exposure to noise and sleep deprivation con-
stituted torture whereas the European Court concluded that they constituted
inhuman treatment. In other words, the European Commission determined
that the pain suffered was sufficiently severe to constitute torture but the
European Court determined that the pain suffered was not sufficiently severe
to constitute torture. In this case, the question of whether the physical pain
and suffering at issue was sufficiently ‘severe’ to constitute torture was highly
contested, in circumstances in which the pain and suffering at issue is mental,
the difficulties and subjectivities inherent in drawing the boundaries are
magnified.
98 Ireland v United Kingdom (1978) 25 Eur Court HR (ser A) 167 (emphasis added).
(21 November 2008).
CAT/C/41/D/257/2004 (21 November 2008) [9.3].
101 Association for the Prevention of Torture, Proceedings of an Expert Seminar, (10–11 November
2001) 18.
(c) Distinction of purpose

While the traditional approach is that severity of pain or suffering is the
distinguishing feature between torture and inhuman treatment, in recent
years many experts in the field have expressed the view that, if there is one
distinguishing feature between the two concepts, that feature is the element
of ‘purpose’ rather than the element of ‘severity’. For example, while acknowl-
edging that torture ‘can be considered an aggravated form of CIDT’, Manfred
Nowak expresses the view that ‘the decisive distinction between torture and
CIDT is not the intensity of the pain or suffering inflicted, but the powerless-
ness of the victim and the purpose for which the pain is inflicted.’103
Nowak reiterated this view in his February 2010 report to the Human
Rights Council, stating that inhuman treatment ‘means the infliction of pain
or suffering without purpose or intention and outside a situation where a
person is under the de facto control of another.’ He also clarified that ‘[t]his
means that, in principle, all forms of cruel or inhuman treatment or punish-
ment, including torture, require the infliction of severe pain or suffering.’104
This view is again affirmed in a joint article with Elizabeth McArthur in
which the authors assert that:
[A] thorough analysis of the travaux préparatoires of Art. 1 and 16 CAT

as well as a systematic interpretation of both provisions in light of the
practice of the Committee against Torture has led me to the conclusion
that the decisive criteria for distinguishing torture from CIDT is not, as
argued by the European Court of Human Rights and many scholars, the
intensity of the pain or suffering inflicted, but the purpose of the conduct
and the powerlessness of the victim.105
This view has also been expressed by Nigel Rodley, who has stated that he
would ‘prefer to see the purposive element as the sole element distinguish-
ing torture from cruel or inhuman treatment.’106 He has reiterated this view
more recently in a book focusing on the treatment of prisoners in which he
(together with Matt Pollard) states that physical force against prisoners that
causes sufficient pain or suffering to be categorised as CIDT will only consti-
tute torture if it meets the ‘purpose’ element of article 1 of CAT.107
103 Manfred Nowak, ‘What Practices Constitute Torture?: US and UN Standards’ (2006) 28
Human Rights Quarterly 809, 839. ‘Powerlessness’ in the context of restrictions on reproductive
freedom is discussed in Chapter 7.
105 Manfred Nowak and Elizabeth McArthur, ‘The Distinction between Torture and Cruel,
Inhuman or Degrading Treatment’ (2006) 16(3) Torture 147, 150.
Problems 467, 489–490.
The categorisation of the ‘purpose’ element as the distinguishing feature
between torture and inhuman treatment is less susceptible to the accusation
of subjectivity that is the primary criticism of the use of ‘severity’ as the
distinguishing feature. The purpose of an act could be regarded as providing
a more objective threshold than the severity of pain because in order to assess
the purpose of an act, it is possible to consider the context of the conduct
in question. Thus, for example, in assessing whether a rape carried out in
the course of an interrogation constitutes torture it would not be necessary
to try to determine the exact measure of pain and suffering endured by the
victim; the very context of interrogation would be sufficient to establish the
‘purpose’ element.108 Similarly, as discussed in Chapter 5, when considering
restrictions on reproductive freedom it is possible to take account of the male-
centric organisation of society when determining whether such restrictions
are based on discrimination.
Another advantage of categorising ‘purpose’ as the threshold element is
that such a focus necessitates a shift towards scrutinising the perpetrator and
away from scrutinising the victim (as is the case when severity of pain or suf-
fering is the threshold element).109 However, it should be noted that invoking
‘purpose’ as the threshold element is no panacea; just as it may be difficult to
determine the intensity of pain or suffering endured by the victim, it may also
be difficult to determine the motivation of the perpetrator.110
In summary, there are currently two different schools of thought regarding
the distinction between torture and inhuman treatment. The first school of
thought regards the distinction as being based on the severity of pain or suf-
fering. The second school of thought regards the distinction as being based
on the element of ‘purpose’ rather than the element of ‘severity’. At present,
while the issue is yet to be definitively resolved, the prevailing view in the
academic literature seems to be that the distinction between torture and inhu-
man treatment is based on the element of ‘purpose’ rather than the element
of ‘severity’.
5 Degrading treatment
The phrase ‘cruel, inhuman or degrading’ lumps together these three terms
as though they are synonyms and interchangeable. However, while the terms
‘cruel’ and ‘inhuman’ are generally viewed as synonyms, the term ‘degrad-
ing’ denotes a less serious form of ill-treatment. In other words, conduct
that constitutes ‘degrading treatment’ is frequently viewed as conduct that
is less grave than ‘inhuman treatment’ or ‘torture’. Consequently, ‘degrading
2001) 18.
2001) 19.
2001) 19.
treatment’ forms a kind of entry threshold into CAT. According to Manfred
Nowak:
Degrading treatment is the infliction of any form of pain or suffering,

severe or not, with the particular aim of humiliating the victim. It can
take place in relation to a detainee or outside detention. Humiliation
of detainees is often the result of discrimination on various grounds,
such as ethnic, national, or social origin, color, gender, religion, sexual
orientation, disability, or age.111
Elsewhere, Manfred Nowak and Elizabeth McArthur have defined ‘degrading

treatment’ as:
[T]he infliction of pain or suffering, whether physical or mental, which

aims at humiliating the victim. Even the infliction of pain or suffer-
ing which does not reach the threshold of ‘severe’ must be considered
as degrading treatment or punishment if it contains a particularly
humiliating element.112
Thus it seems that the element of ‘humiliation’ is the crucial element in

determining whether conduct constitutes ‘degrading treatment’. Further,
the requirement that the victim be ‘humiliated’ is satisfied if the victim
is humiliated in the eyes of others or humiliated in his or her own eyes.113
However, it should be noted that the recurring concern of subjectivity once
again rears its head when determining whether treatment is degrading; the
subjectivity inherent in determining whether conduct is humiliating makes
it very difficult to establish objective indicators of degrading treatment.114
The CAT Committee’s focus on torture and, to a lesser extent, inhu-
man treatment has resulted in a void in the sphere of ‘degrading treat-
ment’. Generally, the Committee only mentions ‘degrading treatment’ in
the context of ‘cruel, inhuman or degrading treatment’ but fails to separate
the concept of ‘degrading treatment’ from the concept of ‘inhuman treat-
ment’ and to explore it on its own. Thus the Committee has failed to define
111 Manfred Nowak, ‘What Practices Constitute Torture?: US and UN Standards’ (2006) 28
Human Rights Quarterly 809, 840 (emphasis added). See also: Manfred Nowak and Elizabeth
McArthur, ‘The Distinction between Torture and Cruel, Inhuman or Degrading Treatment’
(2006) 16(3) Torture 147, 148; Manfred Nowak, Report of the Special Rapporteur on Torture
and Other Cruel, Inhuman or Degrading Treatment or Punishment, UN Doc E/CN.4/2006/6 (23
December 2005) [35].
113 Manfred Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary (2nd ed, N P
Engel Verlag, Kehl, 2005) 165; Tyrer v United Kingdom (1978) 26 Eur Court HR (ser A).
114 Yutaka Arai-Yokoi, ‘Grading Scale of Degradation: Identifying the Threshold of Degrading
Treatment or Punishment under Article 3 ECHR’ (2003) 21(3) Netherlands Quarterly of Human
Rights 385, 390.
‘degrading treatment’ and has for the most part excluded discussion of the
concept from its jurisprudence. However, ‘degrading treatment’ is mentioned
in a few concluding observations thereby providing some limited sense of
the Committee’s understanding of the term. For example, the Committee
has indicated that it regards certain methods of conducting body searches as
constituting degrading treatment as well as certain conditions of detention
as constituting degrading treatment.115 It has also indicated that it regards
a lack of privacy and humiliating circumstances during mandatory medical
examinations (which include gynaecological examinations) as constituting
degrading treatment.116
Like the CAT Committee, the HRC has also failed to explore comprehen-
sively the notion of ‘degrading treatment’ separately from ‘cruel, inhuman or
degrading treatment.’ Nevertheless, it has provided a greater indication than
the CAT Committee of its understanding of the term. For instance, the HRC
has found the following conduct to constitute degrading treatment in certain
circumstances: beatings, emptying a urine bucket on a prisoner, throwing a
prisoner’s food and water on the floor, throwing a prisoner’s mattress out of
the cell, soaking a prisoner’s bedding, refusing to provide medical treatment,
detention in a tiny cell, lack of visitation rights, theft of property, displaying
a person to the press in a cage.117
Writing in relation to the European system, Malcolm Evans expresses the
view that ‘[i]f the deliberate infliction of physical or mental pain is involved,
then it is likely to amount to at least degrading treatment, unless exceedingly
trivial.’118 He also acknowledges that conduct may amount to degrading
treatment in the absence of deliberate infliction of pain or suffering where the
conduct denotes ‘contempt or lack of respect for the personality of the person
subjected to it’ or where the conduct is ‘designed to humiliate or debase’ such
a person.119 Similarly, according to Yutaka Arai-Yokoi, degrading treatment
‘is characterised as such treatment or punishment that humiliates or debases
an individual in such a manner that shows a lack of respect for, or diminishes,
his or her human dignity, or arouses feelings of fear, anguish and inferiority
115 Committee against Torture, Conclusions and Recommendations on Egypt, 29th sess, UN Doc
CAT/C/CR/29/4 (23 December 2002) [6(k)]; Committee against Torture, Conclusions and
Recommendations on Argentina, 33rd sess, UN Doc CAT/C/CR/33/1 (10 November 2004) [6(l)];
Committee against Torture, Concluding Observations on Cuba, 48th sess, UN Doc CAT/C/CUB/
CO/2 (25 June 2012) [10].
116 Committee against Torture, Concluding Observations on Austria, 44th sess, UN Doc CAT/C/
AUT/CO/4-5 (20 May 2010) [22].
Political Rights: Cases, Materials, and Commentary (2nd ed, Oxford University Press, Oxford
2004) [9.36].
Quarterly 366, 371.
Quarterly 366, 371.
capable of breaking an individual’s moral and physical resistance.’120 Further,
Arai-Yokoi observes that the suffering and humiliation must go beyond the
inevitable humiliation resulting from legitimate treatment or punishment
for conduct to constitute degrading treatment.121 In addition, the European
Court has indicated that conduct may be categorised as degrading even if it
does not cause severe and long-lasting effects.122
In the East African Asians case,123 the European Commission of Human
Rights found that a United Kingdom immigration law that discriminated
against United Kingdom citizens of Asian origin living in Africa constituted
degrading treatment, in part because it discriminated on the basis of race. It
is particularly interesting in the context of this discussion to note that the
European Court has specifically commented that discrimination based on
sex may cause sufficient humiliation to be categorised as degrading treat-
ment.124 Therefore, it should be recalled that Chapter 5 explored the notion of
restrictions on reproductive freedom as constituting a form of discrimination
against women. Relatedly, in the case of RR v Poland,125 the European Court
emphasised the humiliation suffered by a woman who was refused timely
prenatal testing and was refused an abortion despite a clear indication of foetal
abnormality. It found that her ‘suffering reached the minimum threshold of
severity under Article 3 of the Convention.’126 Similarly, in the case of IG and
Ors v Slovakia,127 when discussing the involuntary sterilisation of a Romani
woman, the European Court emphasised her feelings of humiliation that led
to its finding of degrading treatment. It stated that:
[A] person’s treatment is considered to be ‘degrading’ when it humiliates

or debases an individual, showing a lack of respect for or diminishing, his
or her human dignity, or arouses feelings of fear anguish or inferiority; it
may suffice that the victim is humiliated in his or her own eyes, even if
not in the eyes of others.128
In this case, the court decided that the woman in question ‘was susceptible
to feeling debased and humiliated’ when she discovered that she had been
Rights 385, 390.
Rights 385, 390.
122 Costello-Roberts v United Kingdom (1993) 247 Eur Court HR (ser C) [31]–[32].
123 East African Asians v United Kingdom (1973) 20 Eur Comm HR 642.
124 Abdulaziz, Cabales and Balkandali v United Kingdom (1985) 94 Eur Court HR (ser A) [91].
125 (2011) Eur Court HR 27617/04.
126 RR v Poland (2011) Eur Court HR 27617/04 [161].
127 (2012) Eur Court HR 15966/04.
128 IG and Ors v Slovakia (2012) Eur Court HR 15966/04 [121].
sterilised without consenting to the procedure.129 On this basis, the European
Court found a violation of article 3. Thus it seems that ‘humiliation’ is the
touchstone of degrading treatment and that, at least in the European system,
discrimination is an indicator of humiliation.
6 Conclusion
Whereas the ICCPR does not distinguish between those consequences that
attach to conduct categorised as torture and those consequences that attach to
conduct categorised as CIDT, CAT has traditionally distinguished between
such consequences and has imposed more burdensome obligations on States
with respect to conduct categorised as torture. For example, the principle of
universal jurisdiction applies to torture and not CIDT. Further, on a more
abstract level, there remains a stigma attached to torture that does not attach
to CIDT. The notion that different consequences attach to conduct catego-
rised as torture versus conduct categorised as CIDT provides a key explana-
tion for why it is necessary to consider whether restrictions on reproductive
freedom constitute torture or CIDT. Accordingly, after considering the ques-
tion of consequences, this chapter proceeded to discuss the meaning of CIDT
and to delve into an analysis of the distinctions between torture, inhuman
treatment and degrading treatment. It seems that there are two schools of
thought on the distinction between torture and inhuman treatment: one
differentiates torture from inhuman treatment on the basis of the severity of
pain or suffering; the other views the purpose for which the pain is inflicted as
constituting the differentiating factor. The second school of thought, which
views ‘purpose’ as the differentiating factor, appears to represent the prevail-
ing view in current academic literature. As regards ‘degrading treatment’, it
seems that the touchstone of ‘degrading treatment’ is the notion of humiliat-
ing or debasing the victim.
129 IG and Ors v Slovakia (2012) Eur Court HR 15966/04 [123].

10 Torture, inhuman or degrading
treatment?
1 Introduction
The previous chapter discussed the distinction between torture and cruel,
inhuman or degrading treatment (CIDT). As part of this discussion, it con-
sidered both the difference between conduct that constitutes torture and con-
duct that constitutes CIDT as well as the different consequences that attach
to a finding of torture as against a finding of CIDT. This chapter brings the
discussion back to an analysis of the most appropriate approach to categoris-
ing restrictions on reproductive freedom. Part 1 of this chapter considers
the approach of the Human Rights Committee (HRC) and the Committee
against Torture (CAT Committee) to whether restrictions on abortion and
involuntary sterilisation procedures constitute torture or CIDT. Part 2 of
this chapter examines the concern that an expansive interpretation of the
definition of torture will result in a ‘dilution’ of the concept of torture. It then
presents the view that, once one accepts the existing definition of torture,
the relevant question is whether specific conduct falls within that definition
rather than whether the definition itself should be changed to accommodate a
particular factual context.
2 Current approach to conceptualising restrictions on

reproductive freedom as torture or CIDT
Both the CAT Committee and the HRC have turned their minds to the ques-
tion of whether restrictions on reproductive freedom fall within the rubric
of torture or CIDT. However, neither Committee has articulated a clear and
comprehensive position on this issue, even when presented with a specific fac-
tual scenario.1 Both Committees have paid more attention to the question of
restricting access to abortion than to the question of involuntary sterilisation.
1 See for example: the case of Llantoy Huamán v Peru, Human Rights Committee, Communication
No 1153/2003, UN Doc CCPR/C/85/D/1153/2003 (22 November 2005) where the HRC found
a violation of art 7 but did not specify whether the facts gave rise to torture, inhuman treatment
or degrading treatment.
Torture, inhuman or degrading treatment? 249
The HRC has indicated that it views restrictions on abortion as violating arti-
cle 7 of the ICCPR in certain circumstances but has not indicated whether it
views such violations as constituting torture or CIDT. The CAT Committee
has indicated that it views restrictions on abortion as constituting CIDT in
certain circumstances. In line with their statements relating to restrictions on
abortion, the CAT Committee has indicated that it views involuntary sterili-
sation as falling within the article 16 prohibition of CIDT and the HRC has
simply alluded to involuntary sterilisation as violating article 7.
(a) Restrictions on abortion

The CAT Committee has not had the opportunity to consider the question of
whether restrictions on abortion constitute torture or CIDT in its case law.
However, it has expressed concern regarding such restrictions in a number of
concluding observations. In its 2006 concluding observations on Peru, the
CAT Committee expressed concern regarding restrictions on abortion in the
context of its discussion of CIDT. It stated that:
Current legislation severely restricts access to voluntary abortion, even in

cases of rape, leading to grave consequences, including the unnecessary
deaths of women. According to reports received, the State party has failed
to take steps to prevent acts that put women’s physical and mental health
at grave risk and that constitute cruel and inhuman treatment.2
Thus in this concluding observation, the Committee clearly expresses the

view that, in circumstances where a woman’s physical and mental health
is put at grave risk, restrictions on abortion constitute inhuman treatment.
Further, in its 2004 concluding observations on Chile, the CAT Committee
expressed concern regarding the conditional nature of the provision of post-
abortion medical care.3
In addition, in its 2009 concluding observations on Nicaragua, the
Committee referenced article 16 when expressing deep concern regarding
the general prohibition of abortion, even in cases of rape, incest or life-
threatening pregnancies and the penalties to which women and medical
personnel who terminate pregnancies are exposed.4 Similarly, in its 2011
concluding observations on Paraguay the Committee noted with concern the
very narrow exception to the general prohibition on abortion and the denial
of post-abortion medical care, which the Committee posited could consti-
tute cruel and inhuman treatment. It recommended that Paraguay ‘consider
2 Committee against Torture, Conclusions and Recommendations on Peru, 36th sess, UN Doc
CAT/C/PER/CO/4 (25 July 2006) [23].
3 Committee against Torture, Conclusions and Recommendations on Chile, 32nd sess, UN Doc
CAT/C/CR/32/5 (14 June 2004) [6j].
4 Committee against Torture, Concluding Observations on Nicaragua, 42nd sess, UN Doc
CAT/C/NIC/CO/1 (10 June 2009) [16].
providing for further exceptions to the general prohibition on abortion, in
particular for cases of therapeutic abortion and pregnancies resulting from
rape or incest.’5 Finally, in its 2011 concluding observations on Ireland,
the Committee expressed the view that the lack of legal clarity and risk of
criminal sanction faced by those performing abortion procedures as well as the
women concerned may constitute a breach of the Convention.6 Thus it seems
that the CAT Committee views restrictions on abortion as violating CAT, at
least in certain circumstances. While the Committee has not been clear in its
approach, it seems as though the Committee is partial towards categorising at
least certain restrictions on abortion as CIDT.
The HRC has had the opportunity to address the question of the legality of
restricting access to abortion in its case law. In the 2005 decision of Llantoy
Huamán v Peru,7 the HRC recognised the potential negative mental health
effects of forcing a woman to continue with a pregnancy that she wishes to
terminate and categorised Peru’s refusal to allow a 17-year-old girl to termi-
nate her pregnancy as a violation of article 7.8 As is commonly the practice
of the HRC, it failed to specify whether Peru’s conduct constituted torture or
CIDT; it simply found that there was a violation of article 7 of the ICCPR.
Similarly, in the 2011 decision of LMR v Argentina,9 the HRC found that
Argentina’s failure to provide a mentally impaired rape victim with timely
access to abortion constituted a violation of article 7. Thus while the HRC
clearly views restrictions on abortion, at least in certain circumstances, as
falling within the article 7 prohibition, it is unclear whether it views such
restrictions as constituting torture or CIDT.
Further, in a number of concluding observations the HRC has indicated
that it views certain restrictions on abortion as constituting a violation of
article 7 of the ICCPR. For example, in its 1996 concluding observations
on Peru, the HRC expressed concern ‘that abortion gives rise to a criminal
penalty even if a woman is pregnant as a result of rape and that clandestine
abortions are the main cause of maternal mortality.’10 It specifically referred
to article 7 in this context. Once again, in its 2000 concluding observations
on Peru, the HRC expressed similar concerns and specifically stated that
the provisions of Peru’s domestic law that subjected those who terminate a
5 Committee against Torture, Concluding Observations on Paraguay, 47th sess, UN Doc

CAT/C/PRY/CO/4-6 (14 December 2011) [22].
6 Committee against Torture, Concluding Observations on Ireland, 46th sess, UN Doc CAT/C/
IRL/CO/1 (17 June 2011) [26].
C/85/D/1153/2003 (22 November 2005).
CCPR/C/85/D/1153/2003 (22 November 2005). See Chapters 3 and 6 of this book for a more
detailed discussion of this case.
C/101/D/1608/2007 (28 April 2011).
10 Human Rights Committee, Conclusions and Recommendations on Peru, 58th sess, UN Doc
CCPR/C/79/Add.72 (18 November 1996) [15].
pregnancy to criminal penalties, even when the pregnancy was the result of
rape, were incompatible with article 7 of the ICCPR.11
Peru has not been singled out for criticism in this context. In its 1998
concluding observations on Ecuador, the HRC expressed concern regard-
ing the ‘very high number of suicides of young females referred to in the
report, which appear in part to be related to the prohibition of abortion’ and
viewed such a prohibition as incompatible with article 7 of the ICCPR.12
Similarly, in its 2000 concluding observations on Trinidad and Tobago, the
HRC stated, while citing article 7, that legal limitations on abortion should
be reappraised and restrictions that may risk violation of women’s rights be
removed from the law, by legislation if necessary.13 In its 2003 concluding
observations on Sri Lanka, the HRC expressed concern ‘that abortion remains
a criminal offence under Sri Lankan law, except where it is performed to save
the life of the mother’ and was particularly troubled by ‘the high number of
abortions in unsafe conditions, imperilling the life and health of the women
concerned, in violation of articles 6 and 7 of the Covenant.’14 Likewise, in
its 2004 concluding observations on Morocco, the HRC referred to article
7 while expressing concern that ‘abortion is still a criminal offence under
Moroccan law unless it is carried out to save the mother’s life’ and stated
that Morocco ‘should relax the legislation relating to abortion.’15 Such senti-
ments are also apparent in the 2008 concluding observations on Nicaragua, in
which the Committee mentioned article 7 in the same paragraph as it ‘notes
with concern the general ban on abortion.’16 Finally, in its 2011 concluding
observations on Kazakhstan, the Committee cited article 7 while expressing
concern regarding deaths resulting from illegal abortions.17
It is clear from these concluding observations that the HRC regards restric-
tions on abortion, at least in certain circumstances, as violating article 7 of
the ICCPR. Even when presented with a concrete factual scenario, the HRC
has failed to indicate whether it views restrictions on abortion as constitut-
ing torture or CIDT. As regards the approach of the CAT Committee, it
seems to be inclining towards an approach that views certain restrictions
on abortion as constituting cruel and inhuman treatment. Consequently,
11 Human Rights Committee, Conclusions and Recommendations on Peru, 70th sess, UN Doc CCPR/
CO/70/PER (15 November 2000) [20].
12 Human Rights Committee, Conclusions and Recommendations on Ecuador, 63rd sess, UN Doc
CCPR/C/79/Add.92 (18 August 1998) [11].
13 Human Rights Committee, Conclusions and Recommendations on Trinidad and Tobago, 70th sess,
UN Doc CCPR/CO/70/TTO (3 November 2000) [18].
14 Human Rights Committee, Conclusions and Recommendations on Sri Lanka, 79th sess, UN Doc
CCPR/CO/79/LKA (1 December 2003) [12].
15 Human Rights Committee, Conclusions and Recommendations on Morocco, 82nd sess, UN Doc
CCPR/CO/82/MAR (1 December 2004) [29].
16 Human Rights Committee, Concluding Observations on Nicaragua, 94th sess, UN Doc CCPR/C/
NIC/CO/3 (12 December 2008) [13].
17 Human Rights Committee, Concluding Observations on Kazakhstan, 102nd sess, UN Doc CCPR/C/
KAZ/CO/1 (19 August 2011) [11].
following a consideration of the case law and concluding observations of the
CAT Committee and the HRC, it is reasonable to conclude that, according
to these treaty bodies, at least some restrictions on access to abortion fall
within the rubric of torture or CIDT. As already stated, comments of the
CAT Committee indicate that it views such restrictions as falling within the
realm of cruel and inhuman treatment. However, it remains unclear which
restrictions on abortion are deemed to fall within this rubric. Comments of
both the CAT Committee and the HRC indicate that restrictions on abortion
that provide no exception for circumstances in which the life or health of the
woman is at risk will constitute torture or CIDT.18 Nevertheless, these are
mere indications of the approach of the treaty bodies. Ultimately, given that
whether conduct constitutes torture or CIDT depends on the specific circum-
stances of a given situation, it would be difficult for the treaty bodies to reach
a generalised definitive conclusion on this issue.
(b) Involuntary sterilisation

The issue of involuntary sterilisation has generally fallen below the radars of
both the CAT Committee and the HRC. Neither Committee has had the oppor-
tunity to address this issue in its case law. Nevertheless, both have considered
the issue in their concluding observations. In its 2004 concluding observations
on the Czech Republic, the CAT Committee expressed concern about ‘[a]llega-
tions regarding some incidents of uninformed and involuntary sterilizations
of Roma women, as well as the Government’s inability to investigate due to
insufficient identification of the individual complainants.’19 It has reiterated
these concerns in its 2012 concluding observations on the Czech Republic, in
which it referenced article 16 when discussing ‘reports of sterilization of Roma
women without free and informed consent, the destruction of medical records
on involuntary sterilizations and the difficulties of victims to obtain redress.’20
Further, in its 2006 concluding observations on Peru, the CAT Committee,
directly under the heading ‘Cruel, inhuman or degrading treatment’, expressed
concern ‘at reports of women undergoing involuntary sterilization.’21 Thus it
seems that the CAT Committee regards involuntary sterilisation as constitut-
ing a violation of article 16, at least in certain circumstances.
18 See for example: Committee against Torture, Conclusions and Recommendations on Peru, 36th
sess, UN Doc CAT/C/PER/CO/4 (25 July 2006) [23]; Committee against Torture, Concluding
Observations on Nicaragua, 42nd sess, UN Doc CAT/C/NIC/CO/1 (10 June 2009) [16]; Llantoy
Huamán v Peru, Human Rights Committee, Communication No 1153/2003, UN Doc
CCPR/C/85/D/1153/2003 (22 November 2005); Human Rights Committee, Conclusions and
Recommendations on Peru, 58th sess, UN Doc CCPR/C/79/Add.72 (18 November 1996) [15].
Doc CAT/C/CR/32/2 (3 June 2004) [6(n)].
CAT/C/CZE/CO/4-5 (13 July 2012) [12].
PER/CO/4 (25 July 2006) [23].
In the situation of both Peru and the Czech Republic, the instances of
involuntary sterilisation for the most part stemmed from a desire to reduce
the population of certain segments of society; thus in both Peru and the
Czech Republic, there was a racial and class-based approach to the carrying
out of involuntary sterilisation procedures.22 Therefore, at the very least,
the comments of the CAT Committee indicate that involuntary sterilisation
procedures may violate article 16 in circumstances where they are carried out
for the purpose of population control in a manner that discriminates against
certain segments of the population.
The HRC has shared the concern of the CAT Committee regarding the
involuntary sterilisation of Romani women and has expressed this concern in
the context of article 7 of the ICCPR. In its 2003 concluding observations on
Slovakia, the HRC expressed concern ‘at reports of forced or coerced steriliza-
tion of Roma women’ and stated that Slovakia ‘should adopt all necessary
measures to investigate all alleged cases of coerced or forced sterilization,
publicize the findings, provide effective remedies to victims and prevent any
instances of sterilization without full and informed consent.’23 Years later,
in 2011, the HRC once again referenced article 7 while expressing concern
regarding the ‘lack of information on concrete measures to eliminate forced
sterilization’ of Roma women in Slovakia.24 Similarly, in its 2007 conclud-
ing observations on the Czech Republic. the HRC referred to article 7 while
noting its ‘concern that Roma and other women have been subjected to
sterilization without their consent, and that the relevant recommendations of
the Ombudsman’s report of 2005 have not been implemented.’25 Further, in
General Comment 28 the HRC, in its discussion of article 7, states that States
Parties should ‘provide the Committee information on measures to prevent
forced abortion or forced sterilization.’26 However, as stated with respect to
restrictions on abortion (discussed earlier) the HRC has provided even less of
an indication than the CAT Committee regarding the circumstances in which
it views involuntary sterilisation as constituting torture or CIDT.
Thus there seems to be agreement between the CAT Committee and the
HRC that both restrictions on abortion and involuntary sterilisation may
violate the prohibition of torture/CIDT in certain circumstances. However,
this is where the clarity ends. While the CAT Committee seems to be leaning
towards an approach that views restrictions on reproductive freedom as falling
22 See Chapters 5 and 7 of this book for a more detailed discussion of the involuntary sterilisation
of Romani women and Peruvian women.
23 Human Rights Committee, Conclusions and Recommendations on Slovakia, 78th sess, UN Doc
CCPR/CO/78/SVK (22 August 2003) [12].
SVK/CO/3 (20 April 2011) [13].
25 Human Rights Committee, Concluding Observations on the Czech Republic, 90th sess, UN Doc
CCPR/C/CZE/CO/2 (9 August 2007) [10].
within the rubric of CIDT (as against torture), it has not been explicit about
its approach or provided any reasoning for why it may be leaning towards
categorising such conduct as CIDT. The HRC, for its part, has not indicated
whether it is leaning towards categorising restrictions on reproductive free-
dom as torture or CIDT. Thus the treaty bodies have been somewhat opaque
regarding the circumstances in which they view restrictions on reproductive
freedom as constituting either torture or CIDT or neither. That said, as stated
already, whether conduct constitutes torture or CIDT depends on the specific
circumstances of a given situation. Ultimately, therefore, it would be difficult
for the treaty bodies to reach a generalised definitive conclusion on this issue.
3 A normative approach
(a) Fear of dilution

As discussed in Chapter 2, the traditional context for the perpetration of
torture is the interrogation (as well as punishment or intimidation) of a
detainee.27 Consequently, traditional methods of torture include:
Short-shackling, suspension in painful positions such as ‘strapado’ or

‘Palestinian hanging’, stripping victims naked and subjecting them to
various forms of beatings, electric shocks, rape and other sexual assaults,
repeated immersion into water while being fixed on a board (‘waterboard-
ing’) or into a mixture of blood, urine, vomit and excrement (‘submarino’),
simulated executions or amputations.28
Such conduct is undeniably horrific and should be categorised as torture.

Many people who oppose an expansive approach to the definition of torture do
so on the basis that if too expansive an approach is adopted, the mere mention
of the word ‘torture’ will cease to arouse feelings of shock and disgust. In other
words, the word ‘torture’ should be reserved for the most extreme conduct and
should not be applied to ‘ordinary’ violence. Thus the fear of diluting the defi-
nition of torture frequently informs the position of those opposed to adopting
an expansive interpretation of the term.
For example, Marcy Strauss observes that:
[s]ome commentators define torture incredibly broadly to include the

infliction of virtually any level of physical or emotional pain. For exam-
ple, Amnesty International and others speak of torture when describing
sexual abuse of women prisoners, police abuse of suspects by physical
27 See for example: Nigel Rodley and Matt Pollard, The Treatment of Prisoners under International Law
(3rd ed, Oxford University Press, Oxford, 2009) 8–11.
brutality, overcrowded cells, the use of implements such as stun guns,
and the application of the death penalty. Thus, they accuse the United
States of either failing to prevent or, more significantly, of promoting tor-
ture. The problem with such a definition is that it knows no real limits;
if virtually anything can constitute torture, the concept loses some of its ability to
shock and disgust. Moreover, universal condemnation may evaporate when
the definition is so all encompassing.29
There are many bases on which one could criticise this statement. For exam-
ple, the apparent failure to appreciate the pain and suffering that may be
endured by female prisoners subjected to sexual abuse, victims of police bru-
tality or those executed by the State, is problematic. Nevertheless, Strauss is
not alone in expressing the view that a broad interpretation of torture dilutes
the concept and, as a result, ‘the concept loses some of its ability to shock and
disgust.’30 Thus Jeremy Waldron makes the point that many United States
commentators were reluctant to categorise the abuses committed at Abu
Ghraib as torture, believing that ‘if we use the word “torture” to characterize
what Americans did in Abu Ghraib prison, we might be depriving ourselves of
the language we need to condemn much more vicious activities.’31 However,
even if one accepts that only conduct that falls within the article 1 definition
should be categorised as torture, there is no logical connection between a
reluctance to expand the definition of torture and a reluctance to categorise as
torture conduct that was previously excluded from the definition. If conduct
meets all of the elements required for it to be categorised as torture under
article 1, then it is unacceptable to exclude such conduct from the category of
torture simply because it has not traditionally been categorised in this way.
Rhonda Copelon addresses this argument in the course of categorising cer-
tain forms of intimate partner violence as torture. She negates the contention
that categorising intimate partner violence as torture dilutes the meaning
of torture by emphasising the similarities between torture as conventionally
understood and severe forms of intimate partner violence. For example, she
highlights the severe pain and suffering endured by victims of intimate part-
ner violence and she demonstrates the way in which the purposes for which
intimate partner violence is perpetrated fall within the prohibited purposes
set out in article 1 of CAT. In this way, Copelon reveals that the categorisa-
tion of severe intimate partner violence as torture does not dilute the meaning
of the concept of torture, rather, a failure to categorise severe intimate partner
violence as torture trivialises intimate partner violence.32
29 Marcy Strauss, ‘Torture’ (2003) 48 New York Law School Law Review 201, 215 (emphasis added,
citations omitted).
30 Marcy Strauss, ‘Torture’ (2003) 48 New York Law School Law Review 201, 215.
Columbia Law Review 1681, 1696. See also: discussion in Part 2(a) of Chapter 9 of this book.
Further, in the case of Selmouni v France,33 the European Court of Human
Rights (European Court) indicated that the increased value being placed on
human rights norms and practices in democratic societies is giving rise to a
broadening of the interpretation of torture. The court stated that:
Certain acts which were classified in the past as ‘inhuman and degrad-
ing treatment’ as opposed to ‘torture’ could be classified differently in
the future. It takes the view that the increasingly high standard being
required in the area of the protection of human rights and fundamen-
tal liberties correspondingly and inevitably requires greater firmness in
assessing breaches of the fundamental values of democratic societies.34
This is not just the case in the European system but, as discussed in Chapter
2, the international system has also been adopting an increasingly broad
approach to both torture and CIDT. Consequently, the dilution argument
seems to fly in the face of the current trend towards broadening the scope
of conduct categorised as torture. In particular, the dilution argument, as
it applies to restrictions on reproductive freedom, contradicts the move
within the international system towards recognising various forms of violence
against women as torture.35 For example, as discussed in Chapter 2, in his
August 2000 Note on the Question of Torture and other Cruel, Inhuman or
Degrading Treatment or Punishment, the then Secretary-General specifically
mentioned that the ‘Special Rapporteur has continued to receive informa-
tion according to which women are subjected to gender-specific forms of torture,
including rape, sexual abuse and harassment, virginity testing, forced abortion
or forced miscarriage.’36 In his January 2008 Report, Manfred Nowak, former
Special Rapporteur on torture and other cruel, inhuman or degrading treat-
ment or punishment (Special Rapporteur), dedicated an entire section to a
discussion of ‘a gender-sensitive interpretation of torture.’37 Further, in the
case of V L v Switzerland.38 the CAT Committee found that sexual abuse by
the police constituted torture even though it was perpetrated ‘outside formal
detention facilities.’39 In light of the progressively broad interpretation being
33 (1999) V Eur Court HR 25803/94.

34 Selmouni v France (1999) V Eur Court HR 25803/94 [101]. See also: Manfred Nowak, UN
160 on the notion that the categorisation of conduct as torture or CIDT is not static but dynamic.
35 See Chapter 2 of this book.
36 United Nations Secretary-General, Question of Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment: Note by the Secretary-General, UN GAOR, 55th sess, Agenda Item 116(a),
UN Doc A/55/290 (11 August 2000) [5] (emphasis added).
Treatment or Punishment, UN Doc A/HRC/7/3 (15 January 2008) 6.
C/37/D/262/2005 (22 January 2007).
C/37/D/262/2005 (22 January 2007) [8.10].
given to the definition of torture, an argument that rests on the desirability
of maintaining a narrow approach to the interpretation seems out of step
with current international law trends. Accordingly, the fear of diluting the
meaning of ‘torture’ is not a sufficient reason for failing to categorise conduct
as torture.
However, while this chapter posits that there is no reason to restrict the
applicability of the definition of torture to conduct traditionally conceptual-
ised as torture, such as electric shocks and severe beatings, such an approach
does not necessarily equal a lowering of the standard of gravity or a change
in the requisite criteria for conduct to constitute torture. The view is simply
that if conduct falls within the article 1 definition of torture, then the fact
that it has not traditionally been conceptualised as torture should not prevent
the categorisation of such conduct as torture going forward. Accordingly, the
argument is for a gender-sensitive interpretation of the existing definition of
torture as opposed to a new formulation of the definition itself.40
(b) Most appropriate category

Those who accept that the existing definition of torture is broad enough to
include restrictions on reproductive freedom may nevertheless query whether
it is in fact desirable to categorise restrictions on reproductive freedom as tor-
ture. They may argue that, in light of the consequences that attach to conduct
categorised as torture (such as universal jurisdiction and the stigma of being a
‘torturer’) CIDT is the more appropriate category for restrictions on reproduc-
tive freedom. Manfred Nowak has expressed the view that we are not free to
propose whether particular conduct should constitute torture or CIDT. In his
opinion, ‘[t]his is not an open question which should be decided by a new nor-
mative framework de lege ferenda, but a question which can and shall be decided
on the basis of existing human rights law, above all Article 1 and 16 CAT, de
lege lata.’41 The purpose of this book is to examine the existing definition of
torture through a feminist lens. The purpose is not to determine whether the
existing definition of torture should be changed. If one accepts the existing
definition, whether conduct meets the criteria for torture is a context-specific
question. Where all the article 1 elements are present, the conduct in question
will constitute torture. Where all the article 1 elements are present but for the
severity of suffering or the prohibited purpose (depending on which school
of thought one subscribes to),42 the conduct will constitute inhuman treat-
ment. Where the conduct does not constitute torture or inhuman treatment
but is particularly humiliating, it will constitute degrading treatment. That
said, the author is not so naïve as to presume that a legal analysis is wholly
40 For a discussion of the gendered nature of international law: see Chapter 1 of this book.
41 Manfred Nowak, notes on file with author (11 July 2011).
42 See: Chapter 9 of this book for a discussion of the distinction between torture and CIDT.
objective; the European case of Ireland v United Kingdom43 clearly demonstrates
the inherent subjectivity of determining whether conduct constitutes torture
or CIDT.44 This, however, is true of all legal standards and does not mean that
objective criteria should be ignored.
While the author welcomes the CAT Committee’s willingness to concep-
tualise restrictions on reproductive freedom within the framework of torture
discourse, the Committee has, in a number of concluding observations, made
general statements conceptualising restrictions on reproductive freedom as
CIDT without providing an explanation for such categorisation. For example,
in its 2006 concluding observations on Peru, the CAT Committee, directly
under the heading ‘Cruel, inhuman or degrading treatment’, expressed
concern ‘at reports of women undergoing involuntary sterilization.’45 The
Committee did not explain whether it was categorising involuntary sterilisa-
tion as inhuman treatment or degrading treatment. Likewise, the Committee
did not explain why it was not categorising such conduct as torture, despite
the fact that (as the preceding chapters of this book illustrate) involuntary
sterilisation will frequently meet all the elements of the article 1 definition
of torture. While it must be acknowledged that concluding observations
tend not to lend themselves to detailed analysis or explanation, it would be
helpful for the CAT Committee to provide some explanation for its decision
to invoke article 16 on a number of occasions when discussing restrictions on
reproductive freedom.
When all is said and done, whether restrictions on reproductive freedom
constitute torture or CIDT (or neither) is a context-specific question that
requires an analysis of the specific case at issue by reference to the criteria for
torture and CIDT. While from a moral or philosophical standpoint it may
be desirable to consider whether conduct should constitute torture, insofar as
the application of the existing criteria for torture is concerned, either conduct
constitutes torture, or it constitutes CIDT, or it does not constitute torture
or CIDT but perhaps violates some other human right such as the right to
autonomy. The following examples illustrate this point.
Suppose a teenage girl is the victim of a violent gang rape and as a result
she becomes pregnant. Suppose that subsequent medical tests reveal that,
if she carries the pregnancy to term, the baby will suffer from severe abnor-
malities. Suppose that mental health experts advise that the rape itself signifi-
cantly affected her wellbeing and that being forced to carry the pregnancy to
term and to give birth to a baby with severe abnormalities would likely result
in her suffering from severe depression and anxiety. Suppose that the law in
her country prevented her from terminating her pregnancy and that she was
44 In this case, the European Court reached a different conclusion to the European Commission
regarding whether conduct constituted torture or inhuman treatment. See: Chapter 9 of this
book for a more detailed discussion of this aspect of the case.
PER/CO/4 (25 July 2006) [23].
therefore faced with a ‘Sophie’s choice.’46 On the one hand, she could attempt
to access an unlawful abortion, with the concomitant stress and risk to her
physical health and safety that such a procedure would entail. On the other
hand, she could carry the pregnancy to term and suffer from severe depression
and anxiety as a result. It seems that, assuming the ‘purpose requirement’
is satisfied, restricting access to legal abortion in such a circumstance may
amount to torture.47
Consider a different example. Suppose a middle-class, well-educated, pro-
fessional woman in her early 30s is trying to become pregnant. She is hoping
that she will only become pregnant in a few months as there is a State-
sponsored baby bonus that will be introduced in ten months’ time and she
wants to make sure that she is eligible for it.48 However, she has started trying
early as she has been warned that, for many people, it can take some time.
To her dismay, she becomes pregnant straight away and realises that she will
give birth before the baby bonus is introduced. She wishes to terminate her
pregnancy and try again in a couple of months so that she will be eligible for
the baby bonus but would not risk an illegal abortion. It is difficult to argue
that this woman would suffer from severe pain or suffering49 if she is forced
to continue with her pregnancy unless one accepts the argument that both
the pain of childbirth and the intrusive nature of adequate pain management
may fall within the notion of severe pain or suffering. If this argument is
not accepted, then perhaps such conduct would amount to degrading treat-
ment on the basis that the act of denying her reproductive choice is a form of
humiliation sufficient to constitute degrading treatment.
The point, demonstrated by the examples just given, is that it is difficult
to reach a generalised position regarding whether restrictions on reproduc-
tive freedom constitute torture or CIDT, because each situation is different
and each situation requires its own analysis. The preceding chapters of this
book have endeavoured to illustrate that there are circumstances in which
both restrictions on abortion and involuntary sterilisation constitute torture.
Similarly, there are circumstances in which both restrictions on abortion
and involuntary sterilisation constitute CIDT. However, a consideration of
whether torture or CIDT is the more appropriate category in a normative
sense essentially involves a consideration of whether the criteria for what
46 As explained in Chapter 7 of this book, the phrase ‘Sophie’s choice’ is taken from a novel that
describes the choice of a female survivor of Auschwitz who, on arriving at the camp, was forced to
choose which of her children would die immediately in the gas chambers. This kind of extremely
difficult choice has become known as a ‘Sophie’s choice.’ See: William Styron, Sophie’s Choice
(Random House, New York, 1979).
47 For a discussion of the ‘purpose requirement’ see: Chapter 5 of this book.
48 In Australia, for example, the federal government currently pays a ‘baby bonus’ of AUS$5000
(as at 19 April 2013) subject to eligibility requirements. See: Centrelink, Baby Bonus, Australian
Government http://www.centrelink.gov.au/internet/internet.nsf/payments/baby_bonus.htm at
19 April 2013.
49 See Chapter 3.
constitutes torture or CIDT should be changed. Some may argue that the cri-
teria should be changed. For example, it is arguable that the purpose for which
the pain or suffering is inflicted should not be relevant to whether conduct is
categorised as torture. Such an analysis, however, is beyond the scope of this
book. This book deals with what is and it looks at what is through a gendered
lens. It argues that there are certain circumstances in which restrictions on
reproductive freedom may constitute torture, certain circumstances in which
restrictions on reproductive freedom may constitute CIDT and certain circum-
stances in which restrictions on reproductive freedom may constitute neither
torture nor CIDT. The answer to the question of ‘whether a particular conduct
amounts to torture or “only” to inhuman treatment’ depends on the particular
circumstances of each case.50 It is not possible to declare, for example, that all
restrictions on abortion should be categorised as inhuman treatment and that
all instances of involuntary sterilisation should be categorised as torture.
4 Conclusion
Whereas the preceding chapter considered the distinction(s) between torture
and CIDT, this chapter has brought the discussion back to the issue of how
the prohibition of torture and CIDT is relevant to restrictions on reproductive
freedom. Part 1 of this chapter considered the approach of the CAT Committee
and the HRC to the question of whether restrictions on abortion and involun-
tary sterilisation constitute torture or CIDT and indicated that there seems to
be some inclination towards categorising restrictions on reproductive freedom
as CIDT (rather than torture), at least on the part of the CAT Committee.
However, in general the approach of both Committees is somewhat ambigu-
ous regarding the precise circumstances in which restrictions on reproductive
freedom will constitute torture, inhuman treatment or degrading treatment.
Having considered the current approach of the treaty bodies to this issue,
Part 2 of this chapter then considered the concern that conceptualising restric-
tions on reproductive freedom as torture may dilute the concept of torture
and examined whether it is appropriate to determine a normative approach
to whether restrictions on reproductive freedom should constitute torture or
CIDT (or neither). Ultimately, the author concluded that whether restric-
tions on reproductive freedom constitute torture or CIDT requires an analysis
of whether, in a given factual context, the legal criteria for torture or CIDT
are met. If the criteria for torture are indeed met, then there is no room for
discussion of whether the concept of torture is diluted. Further, if the criteria
for torture are met, then the question of whether torture or CIDT should be
established in a given situation is appropriate only in the context of discussing
whether the existing criteria should be changed. Once we accept the existing
criteria, then the normative question may be relevant from a moral, ethical
and philosophical perspective but not from a legal perspective.
50 Manfred Nowak, notes on file with author (11 July 2011).

11 Conclusion
The Preamble to the Universal Declaration of Human Rights begins with

the ‘recognition of the inherent dignity and of the equal and inalienable
rights of all members of the human family.’1 The failure of the international
human rights regime to fulfil this promise and adequately to address issues
that disproportionately affect women provided the impetus for this book.
The gendered nature of international law is apparent across all spheres of the
international legal system.2 It is therefore not surprising that the traditional
conceptualisation of the prohibition of torture is notably male centric.3
The primary aim of this book has been to challenge the essentialism inher-
ent in the traditional, male-centric conceptualisation of torture and cruel,
inhuman or degrading treatment (CIDT) by conceptualising restrictions on
women’s reproductive freedom within the framework of the right to be free
from torture and CIDT. Thus this book has analysed each element of the
definition of torture set out in article 1 of the Convention against Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) as well
as considering the meaning of CIDT per article 16 of CAT with a view to
determining whether restrictions on women’s reproductive freedom may be
conceptualised as torture or CIDT. Ultimately, it has concluded that restric-
tions on reproductive freedom may constitute torture or CIDT depending
on the circumstances. Accordingly, this book has demonstrated that interna-
tional law is capable of addressing issues that specifically affect women qua
women and that the concepts of torture and CIDT, which have traditionally
been conceptualised within a male-centric paradigm, may be conceptualised
so as to incorporate a gendered perspective.
1 Universal Declaration of Human Rights, GA Res 217A(III), UN GAOR, 3rd sess, 183rd
plen mtg, UN Doc A/RES/810, preamble (10 December 1948).
2 See: Chapter 1 of this book for a discussion of the gendered nature of international law.
3 See for example: Hilary Charlesworth, Christine Chinkin and Shelley Wright, ‘Feminist
Approaches to International Law’ (1991) 85 American Journal of International Law 613, 628;
Alice Edwards, ‘The “Feminizing” of Torture Under International Human Rights Law’ (2006)
19 Leiden Journal of International Law 349; Hilary Charlesworth and Christine Chinkin, The
Boundaries of International Law (Manchester University Press, Manchester, 2000) 234. See also:
discussion in Chapter 2 of this book.
A subsidiary aim of this book has been to challenge the essentialism inher-
ent in the traditional perspective of white, Western women with class privi-
lege. Thus this book has intentionally considered the question of involuntary
sterilisation, an abuse that has traditionally been perpetrated against women
who are marginalised for reasons other than gender, in the same forum as it
considers restrictions on access to abortion, an issue that affects all women and
that has traditionally been a focus of the Western feminist movement. In this
way, this book has brought together two different human rights violations,
which are typically dealt with in completely separate fora, and has recognised
the commonalities between them and the reality that both are significant vio-
lations of dignity and autonomy and that both can be conceptualised within
the rubric of torture and CIDT.
1 Summary
(a) Overview
Following the ‘Introduction’, Chapter 2 provided an overview of the inter-
national legal approach to torture and CIDT. After outlining the approach
to torture and CIDT at both the international and regional levels, this chap-
ter then proceeded to provide the framework for the ensuing exposition of
whether restrictions on women’s reproductive freedom may be conceptualised
as torture or CIDT. To this end, Chapter 2 observed that the traditional con-
text for the perpetration of torture is the interrogation (as well as punishment
or intimidation) of a detainee.4 This is a notably male-centric paradigm in
that it includes the dominant experiences of men within the torture construct
and excludes the dominant experiences of women. To be clear, women may
be tortured in the same way as men; they too may be arrested and subjected
to beatings, waterboarding and mutilation of the genitals (for example).
However, these ‘traditional’ forms of torture do not represent the principal
forms of pain and suffering inflicted on women. For example, women are
more likely to be severely beaten at the hands of their husbands than at the
hands of a police officer; female genital mutilation is more likely to be per-
formed by family members, friends and acquaintances than by prison guards.
Therefore, the traditional framework in which torture is conceptualised is
inadequate to address those harms that are of greatest concern to women.
Accordingly, Chapter 2 engaged in an analysis of the extension of the con-
cepts of torture and CIDT beyond the traditional detainee context, ultimately
concluding that the reality that torture may be perpetrated in numerous ways
and in various contexts is gradually being acknowledged by the international
community.
Further, and of particular importance to this book, this chapter demonstrated
4 See for example: Nigel Rodley and Matt Pollard, The Treatment of Prisoners under
International Law (3rd ed, Oxford University Press, Oxford, 2009) 8–11.
Conclusion 263
that, at the international level, the discourse has begun to incorporate a gen-
dered approach. For example (and most significant to this book), the Human
Rights Committee (HRC), Committee against Torture (CAT Committee)
and Special Rapporteur on torture and other cruel, inhuman or degrading
treatment have all referred to restrictions on reproductive freedom in the
context of the prohibition of torture and CIDT. However, while references
to restrictions on women’s reproductive freedom in the context of violations
of the right to be free from torture and CIDT are discernible at the inter-
national human rights level, there is a lack of clarity regarding the exact
nature and scope of the applicability of torture discourse to restrictions on
reproductive freedom. In other words, while there have been indications
at the international human rights level that at least some restrictions on
reproductive freedom violate the prohibition of torture or CIDT, this book
has extended the current trajectory along its logical path and has provided a
comprehensive, systematic analysis of how and why restrictions on reproduc-
tive freedom may fall within the rubric of torture and CIDT. It has done
this by engaging in a detailed examination of each element of the definition
of torture contained in article 1 of CAT, as well as the international human
rights concept of CIDT.
(b) Torture
This book analysed each element of the definition of torture set out in article
1 of CAT with a view to determining whether restrictions on abortion and
involuntary sterilisation procedures can be categorised as torture.
(i) Restrictions on abortion

Chapters 3 and 4 discussed the article 1 requirement that ‘severe pain or
suffering, whether physical or mental is intentionally inflicted’. When con-
sidering whether restrictions on abortion may cause severe pain or suffering,
it concluded that restricting a woman’s access to abortion frequently causes
both physical and mental pain and suffering. In the context of exploring the
element of mental pain and suffering, in addition to discussing the negative
mental health consequences of forcing a woman to continue with a preg-
nancy that she wishes to terminate, Chapter 3 also refuted the existence of
‘post-abortion syndrome.’ Further, it considered the stigmatising effect of
restrictions on abortion and the connection between such stigmatisation and
numerous mental health problems.
In the context of exploring the element of physical pain and suffering, it
argued that there is a connection between the legality of abortion services and
the safety of abortion services and that legally restricting access to abortion
creates the climate for unsafe abortions, with the concomitant negative health
implications, to flourish. It also asserted that even if a woman chooses not
to subject herself to an unsafe abortion, the logical consequence of forcing
a woman to continue with an unwanted pregnancy is that, at the end of the
gestation period, she endures the pain of childbirth. Consequently, it seems
that a woman who is legally prevented from terminating an unwanted preg-
nancy will frequently suffer severe physical or mental pain and suffering as a
result of such a restriction, irrespective of whether she accesses illegal abortion
services or continues with the pregnancy. Moreover, Chapter 4 argued that
severe pain and suffering is a foreseeable consequence of restricting access
to abortion. The prevailing view seems to be that intention is interpreted
to encompass foresight of pain and suffering. Therefore, it seems that the
requirement that severe pain or suffering be intentionally inflicted is generally
satisfied with respect to restrictions on abortion.
Chapter 5 analysed the requirement that severe pain or suffering be inten-
tionally inflicted for a prohibited purpose ‘or for any reason based on dis-
crimination of any kind’ and argued that restrictions on abortion constitute
discrimination against women. This chapter began with a discussion of the
legal context and provided an overview of the concept that the right to abor-
tion forms a part of the right to equality/right to be free from discrimination.
It then moved on to a discussion of the social context, placing restrictions on
abortion within the context of society’s existing inequalities and discrimina-
tory attitudes as well as the male-centric organisation of social institutions.
Chapter 5 then proceeded to argue that laws restricting access to abortion
are informed by stereotypes of women as child bearers and child rearers – the
‘separate spheres’ ideology continues to exercise its covert influence over the
framing of laws that significantly affect women’s lives.5 Moreover, drawing
on the notion that intent can be inferred from impact, the final section of
this part argued that restricting a woman’s access to abortion may negatively
affect her in myriad ways. Accordingly, Chapter 5 argued that stereotypes
about women’s nature and women’s roles frequently form both part of the
legislative purpose behind restrictions on abortion and the legislative con-
sequences of such restrictions and that laws restricting access to abortion
therefore frequently constitute conduct based on discrimination.
Chapter 6 analysed the requirement that pain or suffering be ‘inflicted by
or at the instigation of or with the consent or acquiescence of a public official
or other person acting in an official capacity.’ In other words, it discussed the
requirement for a nexus with the State. It argued that torture that is a direct
result of a legislative prohibition is ‘torture for which the authorities could be
held responsible.’6 The authorities of a country are clearly directly involved
in the passing of legislation and in general, absent a declaration that a law is
unconstitutional, the machinery of investigation and prosecution function
5 Reva Siegel, ‘Reasoning from the Body: A Historical Perspective on Abortion Regulation
and Questions of Equal Protection’ (1992) 44 Stanford Law Review 261, 360.
6 J Herman Burgers and Hans Danelius, The United Nations Convention against Torture:
A Handbook on the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment (Martinus Nijhoff Publishers, Dordrecht, 1988) 119.
Conclusion 265
so as to enforce such a law. Thus in the context of legislative restrictions on
abortion, once a law restricting access to abortion is passed it is the respon-
sibility of the authorities to implement such a law despite the fact that the
implementation of such legislation results in women being forced either to
continue with unwanted pregnancies or to endure illegal and unsafe abor-
tions. Accordingly, the responsibility of the authorities is plainly engaged
where a legislative prohibition (which causes severe pain and suffering) is
passed by Parliament and implemented by the authorities.
Chapter 7 considered the view that there is an additional requirement
that is not explicitly stated in the article 1 definition – the requirement of
‘powerlessness’ – and argued that women who are legally prevented from
accessing abortion services are powerless in the relevant sense. While dep-
rivation of liberty in the sense of detention in prison (for example) is the
traditional form of ‘powerlessness’ in the context of torture discourse, it is not
the only way in which a victim can be rendered powerless. In the context of
restrictions on abortion, there are two primary factors that operate to render
women powerless: the power of law and the power of the medical profession.
Law and medicine combine to disempower women and to ensure that power
is retained in the hands of the State and the medical profession. Where abor-
tion is criminalised, the law operates so as to completely deprive women of
their reproductive autonomy. Where abortion is criminalised but is subject to
a health exception, the law still operates so as to completely deprive women
of their reproductive autonomy. In such circumstances, it is the doctor who
has the power to decide a woman’s fate; to determine whether she is forced to
continue with an unwanted pregnancy or whether she is granted an abortion.
In both circumstances, the woman is unable to freely make her own decision
and is therefore rendered powerless.
Up to this point, this book argued that restrictions on abortion frequently
satisfy all elements of the definition of torture set out in article 1 of CAT as
well as the additional requirement of powerlessness. Chapter 8 analysed the
final sentence of article 1, which contains an exemption for certain conduct
that otherwise satisfies all of the requirements set out in the definition of
torture. It states that ‘the term “torture” … does not include pain or suffering
arising only from, inherent in or incidental to lawful sanctions.’ Chapter 8
considered three possible interpretations of the ‘lawful sanctions clause’: first,
that ‘lawful’ means lawful under domestic law. Second, that ‘lawful’ means
lawful under international law and, third, that the lawful sanctions clause
has no scope of application and should be ignored. Assuming that the ‘lawful
sanctions clause’ has some scope of application, it concluded that ‘lawful’
means lawful under international law and that restrictions on abortion do not
fall within this exemption because they do not constitute ‘sanctions’ and are
not explicitly allowed under international law. Accordingly, this book has
posited the view that restrictions on abortion frequently satisfy all elements of
the article 1 definition of torture and do not fall within the ‘lawful sanctions
clause.’
(ii) Involuntary sterilisation

As previously stated, Chapters 3 and 4 discussed the requirement that ‘severe
pain or suffering, whether physical or mental is intentionally inflicted’.
Chapter 3 considered the mental pain and suffering caused by infertility as a
prelude to a discussion of the mental pain and suffering caused by involuntary
sterilisation and concluded that among the effects of involuntary sterilisation
are enduring mental pain and suffering. In addition, Chapter 3 considered the
physical effects of involuntary sterilisation. It argued that in the context of
countries in which conditions may be unsanitary and pain management inad-
equate, involuntary sterilisation may cause severe physical pain and suffering
in the literal sense. It also considered the notion that severe physical pain and
suffering may be conceptualised so as to encapsulate the idea that the law and
those who implement it must not sanction brutality. According to this view,
the invasion of physical integrity and autonomy that is inherent in the process
of involuntary sterilisation, the brutality inherent in conducting an operation
on another human being without her informed consent, may be sufficient to
meet the ‘pain or suffering’ requirement contained in the definition of torture.
Moreover, Chapter 4 argued that severe pain and suffering is a foreseeable
consequence of sterilising a woman without her full informed consent. Given
that the prevailing interpretation of intention seems to encompass foresight
of pain or suffering, Chapter 4 concluded that the requirement that pain and
suffering be intentionally inflicted is generally satisfied in the case of involun-
tary sterilisation.
Chapter 5 analysed the requirement that severe pain or suffering be inten-
tionally inflicted for a prohibited purpose ‘or for any reason based on dis-
crimination of any kind’ and argued that involuntary sterilisation frequently
constitutes discrimination against women. It began by considering the reality
that while, in theory, both men and women may be subjected to involuntary
sterilisation procedures, in practice, women are disproportionately affected.
This is largely explained by social norms, which continue to place women in a
subordinate position to men. As stated earlier, purpose may be inferred from
impact thus the disproportionate impact of involuntary sterilisation policies
and procedures on women leads logically to the conclusion that discrimina-
tion informs the carrying out of such procedures. Further, it should be noted
that discrimination against women is not the only form of discrimination
underlying involuntary sterilisation procedures. Discrimination based on race
and class also frequently inform the carrying out of involuntary sterilisation
procedures.
Chapter 6 analysed the requirement that pain or suffering be ‘inflicted by
or at the instigation of or with the consent or acquiescence of a public official
or other person acting in an official capacity.’ In other words, it discussed the
requirement for a nexus with the State. Part 1 of this chapter presented the
view that involuntary sterilisation procedures performed in public hospitals
meet the ‘public official’ requirement as there is a direct link between the
Conclusion 267
State and the pain and suffering experienced; the link with the State is that
the procedure is performed in a public hospital or by State-employed medical
personnel. Part 2 explored the concept of indirect responsibility and examined
whether, and if so in what circumstances, a State can be held responsible for the
conduct of private actors (such as doctors in private hospitals). Accordingly,
the question was asked: in the context of the ‘public official’ requirement,
does ‘consent or acquiescence’ translate into a broad conceptualisation of
the notion of State responsibility? This part began with a brief preliminary
discussion of the gendered dimension of the public/private distinction in
international human rights law before delving into the interpretation of the
‘public official’ requirement in CAT.7 After considering the approach of the
HRC, the regional systems as well as the approach under CAT, it concluded
that the CAT Committee is embracing an approach to the ‘public official’
requirement that is in line with the ‘due diligence’ approach of the broader
international human rights regime to the question of State responsibility for
torture and CIDT. Consequently, a State may be held responsible, even absent
a direct link, where it has failed to exercise ‘due diligence’ and has failed to
act to prevent, investigate or punish conduct that would otherwise amount
to torture. On this basis, it was argued that the ‘public official’ requirement
is met when a State fails to exercise ‘due diligence’ in relation to involuntary
sterilisation procedures performed by private actors.
As stated already, Chapter 7 considered the view that there is an additional
requirement that is not explicitly stated in the article 1 definition – the
requirement of ‘powerlessness’ – and argued that women who are subjected
to involuntary sterilisation procedures are powerless in the relevant sense.
In the context of involuntary sterilisation, women are helpless in that they
are unable to act to retain their bodily integrity (in this case, their fertility).
There are two primary factors operating to render women powerless: the
power of law and the power of the medical profession. Where involuntary
sterilisation is sanctioned by law, women are rendered powerless by the power
of law. In the more common scenario, in which involuntary sterilisation is not
explicitly condoned by law but is frequently practised, doctors render power-
less the women whom they sterilise without full informed consent; these
women are deprived of their right to decide whether or not to bear children.
Thus the medical profession’s active role in the performing of involuntary
sterilisation procedures in numerous contexts throughout the past century
is a specific example of the power of medicine to subordinate, denigrate and
disable women.
Accordingly, this book has argued that involuntary sterilisation proce-
dures frequently satisfy all the elements of the definition of torture set out
in article 1 of CAT as well as the additional requirement of powerlessness.
Chapter 8 analysed the exemption contained in the final sentence of article
7 The gendered dimension of the public/private distinction in international law is also briefly
discussed in Chapter 1 of this book.
1, which states that ‘the term “torture” … does not include pain or suf-
fering arising only from, inherent in or incidental to lawful sanctions’. As
discussed earlier in relation to restrictions on abortion, assuming that ‘lawful’
means lawful under international law, Chapter 8 concluded that involuntary
sterilisation procedures do not fall within this exemption because they do not
constitute ‘sanctions’ and are not explicitly allowed under international law.
Accordingly, this book has posited the view that involuntary sterilisation pro-
cedures frequently satisfy all the elements of the article 1 definition of torture
and do not fall within the ‘lawful sanctions clause.’
(c) Torture or CIDT?

Much of this book was dedicated to analysing the elements of the article 1
definition of torture and to establishing that restrictions on abortion and
involuntary sterilisation procedures frequently satisfy each of these elements
and do not fall within the lawful sanctions exclusion. Once the argument
that restrictions on abortion and involuntary sterilisation procedures fre-
quently satisfy the elements of the article 1 definition of torture was set
out, in Chapter 9, this book turned to consider the circumstances in which
restrictions on reproductive freedom may constitute CIDT. The notion that
different consequences attach to conduct categorised as torture versus conduct
categorised as CIDT provides a key explanation for why it is necessary to
consider whether restrictions on reproductive freedom constitute torture or
CIDT. Accordingly, after considering the question of consequences, Chapter
9 proceeded to discuss the meaning of CIDT and to delve into an analy-
sis of the distinctions between torture, inhuman treatment and degrading
treatment.
In Chapter 10, the final substantive chapter of the book, discussion returned
to the question of the proper characterisation of restrictions on reproductive
freedom. This chapter considered the approach of the CAT Committee and
the HRC to the question of whether restrictions on abortion and involuntary
sterilisation constitute torture or CIDT. It indicated that there seems to be
some inclination towards categorising restrictions on reproductive freedom
as CIDT (rather than torture), at least on the part of the CAT Committee.
However, in general the approach of both Committees is somewhat ambigu-
ous regarding the precise circumstances in which restrictions on reproductive
freedom will constitute torture, inhuman treatment or degrading treatment.
Ultimately, the author concluded that whether restrictions on reproductive
freedom constitute torture or CIDT requires an analysis of whether, in a given
factual context, the legal criteria for torture or CIDT are met. In response
to concerns that an expansive interpretation of the definition of torture may
lead to a dilution of the concept of torture, the view was expressed that if the
criteria for torture are met, then there is no room for discussion of whether the
concept of torture is diluted. Further, if the criteria for torture are met, then
the question of whether torture or CIDT is the more appropriate category is
Conclusion 269
only relevant in the context of discussing whether the existing criteria should
be changed. Once we accept the existing criteria, then the normative question
may be relevant from a moral, ethical and philosophical perspective but not
from a legal perspective. From a legal perspective, the question is whether, in
a given factual context, the conduct in question meets the criteria for torture
or CIDT.
2 Directions for future research

Restrictions on reproductive freedom represent one example of a human
rights violation that disproportionately affects women and that may be con-
ceptualised within the rubric of torture and CIDT. This book is the first
comprehensive, systematic analysis of the conceptualisation of restrictions
on reproductive freedom through the prism of torture and CIDT. There are
numerous other examples of conduct that disproportionately affects women
and that should be conceptualised within the torture paradigm. Thus Radhika
Coomaraswamy, former Special Rapporteur on violence against women, its
causes and consequences, has stated that:
[T]hose cultural practices that involve ‘severe pain and suffering’ for the
woman or the girl child, those that do not respect the physical integrity
of the female body, must receive maximum international security and
agitation. It is imperative that practices such as female genital mutila-
tion, honour killings, Sati or any other form of cultural practice that bru-
talizes the female body receive international attention, and international
leverage should be used to ensure that these practices are curtailed and
eliminated as quickly as possible.8
Future research should consider these other examples of human rights abuses
that disproportionately affect women both as individual examples and as a
part of an analysis of the broader system of women’s subjugation and subordi-
nation. In other words, the examples mentioned in this quote, as well as other
examples of conduct that disproportionately affect women (such as severe
domestic violence) should be considered individually in the context of the
discourse relating to torture and CIDT and should be considered collectively
as part of the challenge directed at the gendered nature of international law.
This book has discussed the conceptualisation of restrictions on reproduc-
tive freedom within the existing definition of torture and CIDT. Therefore,
while this book adopted a gendered approach to the conceptualisation of
torture and CIDT, as the terms are currently defined, future research should
question the actual elements of the definition itself. For example, future
research should consider whether the ‘public official’ requirement in article
8 Radhika Coomaraswamy, Report of the Special Rapporteur on Violence against Women, its
Causes and Consequences, UN Doc E/CN.4/2002/83 (31 January 2002) [6].
1 of CAT should be erased; it should examine whether the public/private
dichotomy inherent in the article 1 definition of torture should be eradicated.
More broadly, future research should consider whether international human
rights law in general should move in the direction of international criminal
law and bind not only States but also individuals.
Moreover, outside the context of torture and CIDT, restrictions on repro-
ductive freedom may violate numerous other human rights (as mentioned in
Chapter 1). Some research has been conducted that analyses whether, and if
so how, restrictions on reproductive freedom violate specific human rights.
However, there is a need for a comprehensive analysis of the way in which
restrictions on reproductive freedom violate human rights individually and
as part of the collective international human rights system. In addition, there
is a need for further research that considers the human rights implications of
various forms of restriction on reproductive freedom. This book is limited to
a consideration of restrictions on abortion and involuntary sterilisation, which
in itself is novel given that most research discusses either restrictions on abor-
tion or involuntary sterilisation but it is rare to find a discussion of both in
the same forum. However, there are other forms of restriction on reproductive
freedom, such as restrictions on access to assisted reproductive technology and
incidents of court-ordered caesareans, which also give rise to human rights
concerns. Therefore, future research should consider all forms of restriction
on reproductive freedom, both individually and collectively, in the context
of individual human rights norms as well as the international human rights
regime as a unified system.
On a more macro scale, there is a need for additional research regarding
the gendered nature of international law as a whole. This book considers the
specific issue of restrictions on reproductive freedom within the specific inter-
national human rights paradigm of torture and CIDT. However, there are
many other issues that disproportionately affect women and there are many
other spheres of international law that need to be considered from a gendered
perspective. For example, the male-centric interpretation of economic, social
and cultural rights should be examined in greater detail.9 ‘Representation
of the world’, according to Simone de Beauvoir, ‘like the world itself, is the
work of men; they describe it from their own point of view, which they con-
fuse with the absolute truth.’10 Much work still needs to be done before the
work of both men and women equally inform the way in which we see and
understand the world.
9 See for example: United Nations High Commissioner for Human Rights, Report to
the Economic and Social Council, UN Doc E/2008/76 (6 June 2008); Hilary Charlesworth and
Christine Chinkin, The Boundaries of International Law (Manchester University Press, Manchester,
2000) 238; Hilary Charlesworth, ‘What are “Women’s International Human Rights”?’ in
Rebecca J Cook (ed), Human Rights of Women: National and International Perspectives (University of
Philadelphia Press, Philadelphia, 1994) 58, 74.
10 Simone de Beauvoir, The Second Sex (Howard Madison Parshley trans, 1972 ed, Vintage Books,
New York) 161 [trans of Le deuxième sexe].
Conclusion 271
3 A final word
Margaret Atwood’s novel The Handmaid’s Tale envisages a world in which a
woman’s worth is measured according to her reproductive capacity.11 Thus
women who are able to bear children are categorised as handmaids, they
belong to the men to whom they are assigned and their sole function is to give
birth. Women who are not able to bear children are known as the Unwomen,
their infertility results in the loss of their identity as women and they are sent
to live in the Colonies. Other women are sterilised and turned into prosti-
tutes; their function is to provide pleasure to men; they are deemed unfit to be
handmaids. This story is fiction and yet it is disconcerting how many parallels
there are to the lived experiences of many women. The control of women’s
reproductive autonomy remains a poison running through the veins of our
society. Restricting a woman’s reproductive freedom denies her humanity
and her personhood; it deprives her of her dignity and her bodily integrity. It
should be recognised for the cruel conduct that it is and should be labelled as
torture or cruel, inhuman or degrading treatment.
11 See Margaret Atwood, The Handmaid’s Tale (Houghton-Mifflin Company, Boston, 1986).
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Selcuk and Asker v Turkey (1998) II Eur Court HR 23184/94; 23185/94
Selmouni v France (1999) V Eur Court HR 25803/94
Soering v United Kingdom (1989) 161 Eur Court HR (ser A)
Tyrer v United Kingdom (1978) 26 Eur Court HR (ser A)
Tysiac v Poland (2007) Eur Court HR 5410/03
VC v Slovakia (2011) Eur Court HR 18968/07
Z v United Kingdom (2001) V Eur Court HR 29392/95
Inter-American
Aloeboetoe v Suriname [1991] Inter-Am Court HR (ser c) No 11
Bámaca-Velásquez v Guatemala [2000] Inter-Am Court HR (ser c) No 70
Blanco-Romero et al v Venezuela [2005] Inter-Am Court HR (ser c) No 138
Caesar v Trinidad and Tobago [2005] Inter-Am Court HR (ser c) No 123
González et al v Mexico 2009] Inter-Am Court HR (ser c) No 205
María Mamérita Mestanza Chávez v Peru: Friendly Settlement [2003] Inter-Am Comm
HR No 71/03
Mejía v Perú [1996] Inter-Am Comm HR (ser l) No 5/96
Miguel Castro-Castro Prison v Peru [2006] Inter-Am Court HR (ser c) No 160
Paniagua-Morales et al v Guatemala [1998] Inter-Am Court HR (ser c) No 37
Suárez-Rosero v Ecuador [1997] Inter-Am Court HR (ser c) No 35
Velásquez Rodríguez v Honduras [1988] Inter-Am Court HR (ser c) No 4
African
Commission Nationale des Droits de l’Homme et des Libertés v Chad, African Commission
on Human and Peoples’ Rights, Communication No 74/92 (October 1995)
Curtis Francis Doebbler v Sudan, African Commission on Human and Peoples’ Rights,
Communication No 236/2000 (May 2003)
Media Rights v Nigeria, African Commission on Human and Peoples’ Rights,
Communication No 224/98 (October 1998)
Sudan Human Rights Organisation & Centre on Housing Rights and Evictions (COHRE) v
Sudan, Communication 279/03-296/05 (May 2009)
Human Rights Committee

Arzuada Gilboa v Uruguay, Human Rights Committee, Communication No 147/83,
UN Doc CCPR/C/OP/2 (1 November 1985)
Cabal and Pasini v Australia, Human Rights Committee, Communication No
1020/2002, UN Doc CCPR/C/78/D/1020/2002 (7 August 2003)
Conteris v Uruguay, Human Rights Committee, Communication No 139/83, UN Doc
A/40/40 (17 July 1985)
Francis v Jamaica, Human Rights Committee, Communication No 320/1988, UN
Doc CCPR/C/54/D/606/1994 (25 July 1995)
Giri v Nepal, Human Rights Committee, Communication No 1761/2008, UN Doc
CCPR/C/101/D/1761/2008 (27 April 2011)
Higginson v Jamaica, Human Rights Committee, Communication No 792/98, UN
Doc CCPR/C/74/D/792/1998 (29 April 2002)
Kaba v Canada, Human Rights Committee, Communication No 1465/2006, UN
Doc CCPR/C/98/D/1465/2006 (21 May 2010)
Llantoy Huamán v Peru, Human Rights Committee, Communication No 1153/2003,
UN Doc CCPR/C/85/D/1153/2003 (22 November 2005)
LMR v Argentina, Human Rights Committee, Communication No 1608/2007, UN
Doc CCPR/C/101/D/1608/2007 (28 April 2011)
LNP v Argentine Republic, Human Rights Committee, Communication No 1610/2007,
UN Doc CCPR/C/102/D/1610/2007 (16 August 2011)
NG v Canada, Human Rights Committee, Communication No 469/1991, UN Doc
CCPR/C/49/D/469/1991 (7 January 1994)
Osbourne v Jamaica, Human Rights Committee, Communication No 759/1997, UN
Doc CCPR/C/68/D/759/1997 (13 April 2000)
Quinteros v Uruguay, Human Rights Committee, Communication No 107/81, UN
Doc CCPR/C/19/D/107/1981 (21 July 1983)
Soriano de Bouton v Uruguay, Human Rights Committee, Communication No 37/78,
UN Doc CCPR/C/OP/1 (27 March 1981)
Thomas v Jamaica, Human Rights Committee, Communication No 321/1988, UN
Doc CCPR/C/65/D/800/1998 (26 May 1999)
Viana Acosta v Uruguay, Human Rights Committee, Communication No 110/1981,
UN Doc A/39/40 (29 March 1984)
Vuolanne v Finland, Human Rights Committee, Communication No 265/1987, UN
Doc CCPR/C/35/D/265/1987 (7 April 1989)
Young v Jamaica, Human Rights Committee, Communication No 615/1995, UN
Doc CCPR/C/61/D/615/1995/Rev.1 (4 November 1997)
Committee against Torture

Ali v Tunisia, Committee against Torture, Communication No 291/2006, UN Doc
CAT/C/41/D/291/2006 (26 November 2008)
AS v Sweden, Committee against Torture, Communication No 149/1999, UN Doc
CAT/C/25/D/149/1999 (15 February 2001)
Bakatu-Bia v Sweden, Committee against Torture, Communication No 379/2009,
UN Doc CAT/C/46/D/379/2009 (8 July 2011)
Ben Salem v Tunisia, Committee against Torture, Communication No 269/2005, UN
Doc CAT/C/39/D/269/2005 (22 November 2007)
BS v Canada, Committee against Torture, Communication No 166/2000, UN Doc
CAT/C/27/D/166/2000 (14 November 2001)
Dimitrov v Serbia and Montenegro, Committee against Torture, Communication No
171/2000, UN Doc CAT/C/34/D/171/2000 (23 May 2005)
Dragan Dimitrijevic v Serbia and Montenegro, Committee against Torture, Com-
munication No 207/2002, UN Doc CAT/C/33/D/207/2002 (29 November 2004)
Dzemajl et al v Yugoslavia, Committee against Torture, Communication No 161/00,
UN Doc CAT/C/29/D/161/2000 (21 November 2002)
Elmi v Australia, Committee against Torture, Communication No 120/1998, UN
Doc CAT/C/22/D/120/1998 (14 May 1999)
GRB v Sweden, Committee against Torture, Communication No 83/1997, UN Doc
CAT/C/20/D/83/1997 (15 May 1998)
Guengueng et al v Senegal, Committee against Torture, Communication No 181/2001,
UN Doc CAT/C/36/D/181/2001 (19 May 2006)
HMHI v Australia, Committee against Torture, Communication No 177/2000, UN
Doc CAT/C/28/D/177/2001 (1 May 2002)
Keremedchiev v Bulgaria, Committee against Torture, Communication No 257/2004,
UN Doc CAT/C/41/D/257/2004 (21 November 2008)
Kisoki v Sweden, Committee against Torture, Communication No 41/1996, UN Doc
CAT/C/16/D/41/1996 (12 February 1996)
MV v The Netherlands, Committee against Torture, Communication No 201/2002,
UN Doc CAT/C/30/D/201/2002 (13 May 2003)
Njamba and Balikosa v Sweden, Committee against Torture, Communication No
322/2007, UN Doc CAT/C/44/D/322/2007 (14 May 2010)
Osmani v Republic of Serbia, Committee against Torture, Communication No 261/2005,
UN Doc CAT/C/42/D/261/2005 (25 May 2009)
Sahli v Algeria, Committee against Torture, Communication No 341/2008, UN Doc
CAT/C/46/D/341/2008 (4 July 2011)
Sonko v Spain, Committee against Torture, Communication No 368/2008, UN Doc
CAT/C/47/D/368/2008 (20 February 2012)
SV v Canada, Committee against Torture, Communication No 49/1996, UN Doc
A/56/44 (15 May 2001)
TM v Sweden, Committee against Torture, Communication No 228/2003, UN Doc
CAT/C/31/D/228/2003 (18 November 2003)
VL v Switzerland, Committee against Torture, Communication No 262/2005, UN
Doc CAT/C/37/D/262/2005 (22 January 2007)
Committee on the Elimination of Discrimination against Women

AS v Hungary, Committee on the Elimination of Discrimination against Women,
Communication No 4/2004, UN Doc A/61/38 (14 August 2006)
LC v Peru, Committee on the Elimination of Discrimination against Women,
Communication No 22/2009, UN Doc CEDAW/C/50/D/22/2009 (25 November
2011)
Other
Brown v Board of Education 347 US 483 (1954)
Filartiga v Pena-Irala 630 F 2d 876 (1980)
Gonzales v Carhart 127 S Ct 1610 (2007)
LM and Ors v The Government of the Republic of Namibia, High Court of Namibia (30
July 2012)
Madrigal v Quilligan 639 F 2d 789 (1981)
Prosecutor v Akayesu Case No ICTR-96-4-T (2 September 1998) (Judgment)
Prosecutor v Dragan Zelenović Case No IT-96-23/2-S (4 April 2007) (Judgment)
Prosecutor v Dusko Tadic Case No IT-94-1-T (7 May 1997) (Judgment)
Prosecutor v Furundžija Case No IT-95-17/1-T (10 December 1998) (Judgment)
Prosecutor v Kunarac, Kovač and Vuković Case No IT-96-23 and IT-96-23/1-A (12 June
002) (Judgment)
Prosecutor v Mucić, Delić, Landžo & Delalić Case No IT-96-21-T (16 November 1998)
(Judgment)
Prosecutor v Sylvestre Gacumbitsi Case No ICTR-2001-64-T-A (7 July 2006) (Appeal
Judgment)
Public Committee Against Torture v State of Israel HC 5100/94 (1999)
Qu v Gonzales 399 F 3d 1195 (9th Cir 2005) 2946
Rochin v California 342 US 165 (1952)
Roe v Wade 410 US 113 (1973)
Rogers v Whitaker (1992) 175 CLR 479
Webster v Reproductive Health Services 492 US 490 (1989)
Winterbottom v Wright 152 Eng Rep 402 (1842)
Treaties
African Charter on Human and Peoples’ Rights, opened for signature 27 June 1981,
CAB/LEG/67/3 rev 5, 21 ILM 58 (1982) (entered into force 21 October 1986)
American Convention on Human Rights, opened for signature 22 November 1969, 1144
UNTS 123 (entered into force 18 July 1978)
Convention on the Elimination of All Forms of Discrimination against Women, opened for
signature 18 December 1979, 1249 UNTS 13 (entered into force 3 September
1981)
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,
opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26
June 1987)
European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or
Punishment, opened for signature 26 November 1987, ETS 126 (entered into force
1 February 1989)
European Convention for the Protection of Human Rights and Fundamental Freedoms, opened
for signature 4 November 1950, ETS 5 (entered into force 3 September 1953)
Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed
Forces in the Field, opened for signature 12 August 1949, 75 UNTS 31 (entered into
force 21 October 1950)
Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked
Members of the Armed Forces at Sea, opened for signature 12 August 1949, 75 UNTS
85 (entered into force 21 October 1950)
Geneva Convention relative to the Protection of Civilian Persons in Time of War, opened
for signature 12 August 1949, 75 UNTS 287 (entered into force 21 October
1950)
Geneva Convention relative to the Treatment of Prisoners of War, opened for signature 12
August 1949, 75 UNTS 135 (entered into force 21 October 1950)
Inter-American Convention to Prevent and Punish Torture, opened for signature 9
December 1985, OASTS 67 (entered into force 28 February 1987)
International Covenant on Civil and Political Rights, opened for signature 16 December
1966, 999 UNTS 171 (entered into force 23 March 1976)
International Covenant on Economic, Social and Cultural Rights, opened for signature 16
December 1966, 993 UNTS 3 (entered into force 3 January 1976)
Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against
Women, GA Res 54/4, UN GAOR, 54th sess, 28th plen mtg, UN Doc A/RES/54/4
(15 October 1999)
Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, GA Res 57/199, UN GAOR, 57th sess, 77th plen mtg,
UN Doc A/RES/57/199 (9 January 2003)
Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an
African Court on Human and Peoples’ Rights, opened for signature 9 June 1998, CAB/
LEG/665 (entered into force 1 January 2004)
Protocol on the Statute of the African Court of Justice and Human Rights, opened for signa-
ture 1 July 2008 (not yet in force)
Rome Statute of the International Criminal Court, opened for signature 17 July 1998,
2187 UNTS 90 (entered into force 1 July 2002)
Vienna Convention on the Law of Treaties, opened for signature 23 May 1969, 1155
UNTS 331 (entered into force 27 January 1980)
Other international documents

Human Rights Committee
Human Rights Committee, Concluding Observations on Chile, 65th sess, UN Doc
CCPR/C/79/Add.104 (30 March 1999)
Human Rights Committee, Concluding Observations on Colombia, 59th sess, UN Doc
CCPR/C/79.Add.76 (5 May 1997)
Human Rights Committee, Concluding Observations on the Czech Republic, 90th sess,
UN Doc CCPR/C/CZE/CO/2 (9 August 2007)
Human Rights Committee, Concluding Observations on Ecuador, 63rd sess, UN Doc
CCPR/C/79/Add.92 (18 August 1998)
Human Rights Committee, Concluding Observations on Guatemala, 72nd sess, UN Doc
CCPR/CO/72/GTM (27 August 2001)
Human Rights Committee, Concluding Observations on Japan, 64th sess, UN Doc
CCPR/C/79/Add.102 (19 November 1998)
Human Rights Committee, Concluding Observations on Kazakhstan, 102nd sess, UN
Doc CCPR/C/KAZ/CO/1 (19 August 2011)
Human Rights Committee, Concluding Observations on Mali, 77th sess, UN Doc
CCPR/CO/77/MLI (16 April 2003)
Human Rights Committee, Concluding Observations on Mongolia, 68th sess, UN Doc
CCPR/C/79/Add.120 (25 May 2000)
Human Rights Committee, Concluding Observations on Morocco, 82nd sess, UN Doc
CCPR/CO/82/MAR (1 December 2004)
Human Rights Committee, Concluding Observations on Nicaragua, 94th sess, UN Doc
CCPR/C/NIC/CO/3 (12 December 2008)
Human Rights Committee, Concluding Observations on Peru, 58th sess, UN Doc
Human Rights Committee, Concluding Observations on Peru, 70th sess, UN Doc CCPR/
CO/70/PER (15 November 2000)
Human Rights Committee, Concluding Observations on Poland, 66th sess, UN Doc
CCPR/C/79/Add.110 (29 July 1999)
Human Rights Committee, Concluding Observations on Poland, 82nd sess, UN Doc
CCPR/CO/82/POL (2 December 2004)
Human Rights Committee, Concluding Observations on Senegal, 61st sess, UN Doc
Human Rights Committee, Concluding Observations on Slovakia, 101st sess, UN Doc
CCPR/C/SVK/CO/3 (20 April 2011)
Human Rights Committee, Concluding Observations on Slovakia, 78th sess, UN Doc
CCPR/CO/78/SVK (22 August 2003)
Human Rights Committee, Concluding Observations on Sri Lanka, 79th sess, UN Doc
CCPR/CO/79/LKA (1 December 2003)
Human Rights Committee, Concluding Observations on Sudan, 61st sess, UN Doc
Human Rights Committee, Concluding Observations on the Syrian Arab Republic, 71st
sess, UN Doc CCPR/CO/71/SYR (24 April 2001)
Human Rights Committee, Concluding Observations on Trinidad and Tobago, 70th sess,
UN Doc CCPR/CO/70/TTO (10 November 2000)
Human Rights Committee, Concluding Observations on United Republic of Tanzania,
63rd sess, UN Doc CCPR/C/79/Add.97 (18 August 1998)
Human Rights Committee, Concluding Observations on United States of America, 87th
sess, UN Doc CCPR/C/USA/CO/3 (15 September 2006)
Human Rights Committee, Concluding Observations on Uzbekistan, 71st sess, UN Doc
CCPR/CO/71/UZB (26 April 2001)
Human Rights Committee, Concluding Observations on Viet Nam, 75th sess, UN Doc
CCPR/CO/75/VNM (5 August 2002)
Human Rights Committee, General Comment 20: Replaces General Comment 7 Concerning
Prohibition of Torture and Cruel Treatment or Punishment, 44th sess, UN Doc HRI/
GEN/1/Rev.1 (10 March 1992)
Human Rights Committee, General Comment 24: Issues Relating to Reservations Made
Upon Ratification or Accession to the Covenant or the Optional Protocols Thereto, or
in Relation to Declarations under Article 41 of the Covenant, 52nd sess, UN Doc
CCPR/C/21/Rev.1/Add.6 (4 November 1994)
Human Rights Committee, General Comment 28: Equality of Rights between Men and
Women (Art 3), 68th sess, UN Doc CCPR/C/21/Rev.1/Add.10 (29 March 2000)
Human Rights Committee, General Comment 31: Nature of the General Legal Obligation
on States Parties to the Covenant, 80th sess, UN Doc CCPR/C/21/Rev.1/Add.13 (29
March 2004)
Committee against Torture

Committee against Torture, Concluding Observations on Australia, 40th sess, UN Doc
CAT/C/AUS/CO/3 (22 May 2008)
Committee against Torture, Concluding Observations on Austria, 44th sess, UN Doc
CAT/C/AUT/CO/4-5 (20 May 2010)
Committee against Torture, Concluding Observations on China, 41st sess, UN Doc
CAT/C/CHN/CO/4 (12 December 2008)
Committee against Torture, Concluding Observations on Cuba, 48th sess, UN Doc
CAT/C/CUB/CO/2 (25 June 2012)
Committee against Torture, Concluding Observations on the Czech Republic, 48th sess,
UN Doc CAT/C/CZE/CO/4-5 (13 July 2012)
Committee against Torture, Concluding Observations on Indonesia, 40th sess, UN Doc
CAT/C/IDN/CO/2 (2 July 2008)
Committee against Torture, Concluding Observations on Ireland, 46th sess, UN Doc
CAT/C/IRL/CO/1 (17 June 2011)
Committee against Torture, Concluding Observations on Nicaragua, 42nd sess, UN Doc
CAT/C/NIC/CO/1 (10 June 2009)
Committee against Torture, Concluding Observations on Paraguay, 47th sess, UN Doc
CAT/C/PRY/CO/4-6 (14 December 2011)
Committee against Torture, Conclusions and Recommendations on Afghanistan, 120th
and 121st mtg, UN Doc A/48/44 (10 November 1992)
Committee against Torture, Conclusions and Recommendations on Albania, 34th sess,
UN Doc CAT/CO/34/ALB (10 and 11 May 2005)
Committee against Torture, Conclusions and Recommendations on Argentina, 33rd sess,
UN Doc A/60/44 (16-17 November 2004)
Committee against Torture, Conclusions and Recommendations on Bahrain, 34th sess,
UN Doc CAT/CO/34/BHR (12 and 13 May 2005)
Committee against Torture, Conclusions and Recommendations on Bolivia, 26th sess, UN
Doc A/56/44 (3, 4 and 10 May 2001)
Committee against Torture, Conclusions and Recommendations on Brazil, 26th sess, UN
Doc A/56/44 (8, 9 and 16 May 2001)
Committee against Torture, Conclusions and Recommendations on Cameroon, 31st sess,
UN Doc CAT/C/CR/31/6 (5 February 2004)
Committee against Torture, Conclusions and Recommendations on Chad, 42nd sess, UN
Doc CAT/C/TCD/CO/1 (4 June 2009)
Committee against Torture, Conclusions and Recommendations on Chile, 32nd sess, UN
Doc CAT/C/CR/32/5 (14 June 2004)
Committee against Torture, Conclusions and Recommendations on Colombia, 31st sess,
UN Doc CAT/C/CR/31/1 (4 February 2004)
Committee against Torture, Conclusions and Recommendations on Costa Rica, 26th sess,
UN Doc A/56/44 (10, 11 and 17 May 2001)
Committee against Torture, Conclusions and Recommendations on Cyprus, 29th sess, UN
Doc CAT/C/CR/29/1 (18 December 2002)
Committee against Torture, Conclusions and Recommendations on the Czech Republic,
32nd sess, UN Doc CAT/C/CR/32/2 (3 June 2004)
Committee against Torture, Conclusions and Recommendations on Ecuador, 35th sess, UN
Doc CAT/C/ECU/CO/3 (8 February 2006)
Committee against Torture, Conclusions and Recommendations on Egypt, 29th sess, UN
Committee against Torture, Conclusions and Recommendations on Greece, 33rd sess, UN
Committee against Torture, Conclusions and Recommendations on Indonesia, 27th sess,
UN Doc CAT/C/XXVII/Concl.3 (16 and 19 November 2001)
Committee against Torture, Conclusions and Recommendations on Japan, 38th sess, UN
Doc CAT/C/JPN/CO/1 (3 August 2007)
Committee against Torture, Conclusions and Recommendations on Kazakhstan, 26th sess,
UN Doc A/56/44 (9, 10 and 17 May 2001)
Committee against Torture, Conclusions and Recommendations on Peru, 36th sess, UN
Doc CAT/C/PER/CO/4 (25 July 2006)
Committee against Torture, Conclusions and Recommendations on Switzerland, 177th and
178th mtg, UN Doc A/49/44 (12 June 1994)
Committee against Torture, Conclusions and Recommendations on United States of America,
36th sess, UN Doc CAT/C/USA/CO/2 (18 May 2006)
Committee against Torture, Conclusions and Recommendations on Yemen, 31st sess, UN
Doc CAT/C/CR/31/4 (5 February 2004)
Committee against Torture, Conclusions and Recommendations on Zambia, 27th sess, UN
Doc CAT/C/XXVII/Concl.4 (19 and 20 November 2001)
Committee against Torture, Consideration of Initial Report Submitted by Saudi Arabia,
28th sess, UN Doc CAT/C/SR.519 (17 May 2002)
Committee against Torture, Consideration of Initial Report Submitted by Yemen, 31st
sess, UN Doc CAT/C/SR.583 (27 November 2003)
Committee against Torture, General Comment 2: Implementation of Article 2 by States
Parties, UN Doc CAT/C/GC/2 (24 January 2008)
Committee against Torture, General Comment 3: Implementation of Article 14 by States
Parties, UN Doc CAT/C/GC/3 (19 November 2012)
Committee on the Elimination of Discrimination against Women

Committee on the Elimination of All Forms of Discrimination against Women,
Concluding Observations on Andorra, 25th sess, UN Doc A/56/38 (31 July 2001)
Concluding Observations on Argentina, 17th sess, UN Doc A/52/38 Rev.1 (23 July
1997)
Concluding Observations on Azerbaijan, 18th sess, UN Doc A/53/38/Rev.1 (14 May
1998)
Concluding Observations on Belize, 21st sess, UN Doc A/54/38 (1 July 1999)
Concluding Observations on Burkina Faso, 22nd sess, UN Doc A/55/38 (31 January
2000)
Committee on the Elimination of All Forms of Discrimination against
Women, Concluding Observations on Burundi, 24th sess, UN Doc A/56/38 (2
February 2001)
Women, Concluding Observations on Cameroon, 23rd sess, UN Doc A/55/38 (26 June
2000)
Concluding Observations on Chile, 14th sess, UN Doc A/50/38 (31 May 1995)
Concluding Observations on Chile, 21st sess, UN Doc A/54/38 (9 July 1999)
Concluding Observations on Chile, 36th sess, UN Doc CEDAW/C/CHI/CO/4 (25
August 2006)
Concluding Observations on China, 36th sess, UN Doc CEDAW/C/CHN/CO/6 (7-25
August 2006)
Women, Concluding Observations on Colombia, 20th sess, UN Doc A/54/38 (4
February 1999)
Concluding Observations on Dominican Republic, 18th sess, UN Doc A/53/38 (14 May
1998)
Concluding Observations on Georgia, 21st sess, UN Doc A/54/38 (1 July 1999)
Concluding Observations on Ireland, 21st sess, UN Doc A/54/38 (1 July 1999)
Concluding Observations on Ireland, 33rd sess, UN Doc CEDAW/A/60/38 (22 July
2005)
Concluding Observations on Jamaica, 52nd sess, UN Doc CEDAW/C/JAM/CO/6-7
(27 July 2012)
Concluding Observations on Jordan, 22nd sess, UN Doc A/55/38 (27 January 2000)
Concluding Observations on Kyrgyzstan, 20th sess, UN Doc A/54/38 (27 January
1999)
Concluding Observations on Mauritius, 14th sess, UN Doc A/50/38 (31 May 1995)
Concluding Observations on Mexico, 18th sess, UN Doc A/53/38 (14 May 1998)
Concluding Observations on Mongolia, 24th sess, UN Doc A/56/38 (2 February 2001)
Concluding Observations on Myanmar, 22nd sess, UN Doc A/55/38 (28 January 2000)
Concluding Observations on Namibia, 17th sess, UN Doc A/52/38/Rev.1 (12 August
1997)
Concluding Observations on Nepal, 21st sess, UN Doc A/54/38 (1 July 1999)
Concluding Observations on Nicaragua, 25th sess, UN Doc A/56/38 (31 July 2001)
Concluding Observations on Panama, 19th sess, UN Doc A/55/38/Rev.1 (2 July 1998)
Concluding Observations on Paraguay, 15th sess, UN Doc A/51/38 (9 May 1996)
Concluding Observations on Peru, 14th sess, UN Doc A/50/38 (31 May 1995)
Concluding Observations on Peru, 19th sess, UN Doc A/53/38/Rev.1 (8 July 1998)
Concluding Observations on Peru, 26th sess, UN Doc A/57/38 (14 January–1 February
2002)
Concluding Observations on Romania, 23rd sess, UN Doc A/55/38 (23 June 2000)
Women, Concluding Observations on United Kingdom, 21st sess, UN Doc A/55/38 (1
July 1999)
Concluding Observations on Zimbabwe, 18th sess, UN Doc A/53/38/Rev.1 (14 May
1998)
Committee on the Elimination of Discrimination against Women, General
Recommendation 19: Violence against Women, UN Doc A/47/38 (29 January 1992)
Recommendation 21: Equality in Marriage and Family Relations, UN Doc A/49/38 (4
February 1994)
Recommendation 24: Women and Health UN Doc A/54/38/Rev.1 (5 February 1999)
Recommendation 28: The Core Obligations of States Parties under article 2 of the Convention
on the Elimination of All Forms of Discrimination against Women, UN Doc CEDAW/C/
GC/28 (16 December 2010)
Committee on the Rights of the Child

Committee on the Rights of the Child, Concluding Observations on Chad, 21st sess, UN
Doc CRC/C/15/Add.107 (24 August 1999)
Committee on the Rights of the Child, Concluding Observations on Colombia, 25th sess,
UN Doc CRC/C/15/Add.137 (16 October 2000)
Committee on the Rights of the Child, Concluding Observations on Guatemala, 27th
sess, UN Doc CRC/C/15/Add.154 (9 July 2001)
Committee on the Rights of the Child, Concluding Observations on Nicaragua, 21st sess,
UN Doc CRC/C/15/Add.108 (24 August 1999)
Committee on Economic, Social and Cultural Rights

Committee on Economic, Social and Cultural Rights, Concluding Observations on
Brazil, 30th sess, UN Doc E/2004/22 (5–23 May 2003)
Committee on Economic, Social and Cultural Rights, Concluding Observations on China,
34th sess, UN Doc E/2006/22 (25 April–13 May 2005)
Committee on Economic, Social and Cultural Rights, General Comment 14: The Right
to the Highest Attainable Standard of Health, UN Doc E/C.12/2000/4 (11 August
2000)
Committee on Economic, Social and Cultural Rights, Submission to the World Conference
on Human Rights, UN Doc E/1993/22, Annex III (1993)
Committee on the Elimination of Racial Discrimination

Committee on the Elimination of Racial Discrimination, Concluding Observations on
the Czech Republic, 70th sess, UN Doc CERD/C/CZE/CO/7 (19 February–9 March
2007)
Peru, 54th sess, UN Doc A/54/18 (1–19 March 1999)
Slovakia, 59th sess, UN Doc A/59/18 (23 February–12 March 2004)
Committee on the Elimination of Racial Discrimination, General Recommendation
25: Gender Related Dimensions of Racial Discrimination, UN Doc A/55/18, annex V
(2000)
Miscellaneous
Assembly of the African Union, Protocol to the African Charter On Human and Peoples’
Rights on the Rights Of Women in Africa, 2nd sess (11 July 2003)
Body of Principles for the Protection of All Persons under Any Form of Detention or
Imprisonment, GA Res 43/173, UN GAOR, 43rd sess, 76th plen mtg, UN Doc A/
RES/43/173 (9 December 1988)
Code of Conduct for Law Enforcement Officials, GA Res 34/169, UN GAOR, 34th sess,
106th plen mtg, UN Doc A/34/46 (17 December 1979)
Council of the European Union, Council Regulation (Ec) No 1236/2005 of 27 June 2005
concerning trade in certain goods which could be used for capital punishment, torture or other
cruel, inhuman or degrading treatment or punishment [2005] OJ L 200/1 (entered into
force 30 July 2006)
Declaration on the Elimination of Violence against Women, GA Res 48/104, UN GAOR,
48th sess, 85th plen mtg, UN Doc A/RES/48/104 (23 February 1994)
Declaration on the Protection of All Persons from Being Subjected to Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment, GA Res 3452 (XXX), UN
GAOR, 30th sess, 2433rd plen mtg, UN Doc A/RES/3452(XXX) (9 December
1975)
Draft International Convention against Torture and other Cruel, Inhuman or
Degrading Treatment or Punishment, 18 January 1978, UN Doc E/CN.4/1285
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Index
Note: the reference 4n21 refers to note 21 on page 4.
A v United Kingdom 164 African Court on Human and Peoples Rights

A, B and C v Ireland 41n80, 115n18, 47
117n27 agency 130, 179, 189
Abdulaziz, Cabalez and Balkandali v United Aksoy v Turkey 230
Kingdom 246 Ali v Tunisia 66
abortion: and anxiety 72; and depression Aloeboetoe v Suriname 45
72–4; and mental health 71–5; and Alston, Philip 22, 47
self-esteem 74; control of access Alvarez, José 49
187; criminalisation of 54, 137, American Convention on Human Rights
188, 190; equality-based approach (ACHR) 44, 45, 92
118–19; forced 60, 139, 141, 256; American Psychological Association 73
link between safety and legality Amnesty International 254
79–81, 149; positive psychological amputations 208–9, 211, 216
effects 74–5; privacy-/autonomy-based anxiety: and abortion 72; and infertility 85;
approach 118; public attitudes about and involuntary sterilisation 88
125; right to 114–16, 187; women’s Arai-Yokoi, Yutaka 245–6
experiences 68, 74–5; see also post- AS v Hungary 86n131, 87n132, 134, 155
abortion syndrome; restrictions on AS v Sweden 56
abortion; unsafe abortions Assenov v Bulgaria 164
Abortion Act 1967 190–1 Association for the Prevention of Torture
Abrams, Paula 135 212
Abu Ghraib 232–3, 255 Atwood, Margaret 271
ACHR see American Convention on Human Australia 186; female genital mutilation
Rights 58, 170; ‘intention’ in criminal law
act: good/bad 106–7; meaning under CAT 100–1; involuntary sterilisation 89;
63–5 Mental Health Review Board 195; public
adoption 70–1 attitudes to abortion 125
Africa: human rights regime 47–9; autonomy 108; and restrictions on abortion
involuntary sterilisation 88 189; and torture 180; procreative 107–8
African Charter on Human and Peoples’ Aydin v Turkey 40n71, 178, 230
Rights 47–8
African Commission on Human and Peoples Bakatu-Bia v Sweden 56, 67n25
Rights 47–8, 51, 162 Bámaca-Velásquez v Guatemala 45n106
African Court of Justice and Human Rights beatings 66–7, 235, 245
47 Ben Salem v Tunisia 66
304 Index
Beveridge, Fiona 17 China: involuntary sterilisation 87, 132,
bioethics 195 133, 139–41, 193; one-child policy 87,
Birth of the Clinic, The 195 139, 193; violence against women 58, 170
Blanco-Romero et al v Venezuela 45n106 Chinkin, Christine 9, 12, 19, 158
Body of Principles for the Protection of All CIDT see cruel, inhuman or degrading
Persons under Any Form of Detention or treatment or punishment
Imprisonment 31 civil and political rights (CPR) 22–3, 157
body searches 245 class-based discrimination 88, 114, 138,
Bottomley, Stephen 184–5 141, 253
Boulesbaa, Ahcene 64, 98, 173, 209 Code of Conduct for Law Enforcement
Boven, Theodore Van 168–9 Officials 31–2, 233
Boyle, Mary 76, 187, 189 Colombia 118
Brazil 132, 133 Commission Nationale des Droits de l’Homme et
Bronitt, Simon 101, 184–5 des Libertés v Chad 162n69–70s
Brown v Board of Education 92n162 Commission on Human Rights 32, 56,
Brownmiller, Susan 178, 179 205
BS v Canada 224 Commission on the Status of Women 14
Burgers, J Herman 33, 37, 49, 64, 98, 150, Committee against Torture (CAT
173, 182, 207, 228 Committee) 34, 133–4; and distinction
Bybee, Jay 65 between torture and CIDT 232–5, 238,
241; expansive approach to the issue
Cabal and Pasini v Australia 52, 160, of torture 55–60, 256; on degrading
237–8 treatment 244–5; on involuntary
Caesar v Trinidad and Tobago 46, 51n149 sterilisation 252–4, 258; on ‘lawful
caesarian sections 82, 144, 199, 202; court- sanctions’ clause 208, 211–12; on
ordered 183, 270 ‘powerlessness’ 174–5; on principle of
Cahill, Anne 179 proportionality 238; on principle of
Cameroon 58, 169 universal jurisdiction 228; on ‘public
Canada 192 official’ requirement 166–71; on
Cassese, Antonio 43 restrictions on abortion 153–4, 249–52;
Castan, Melissa 215 on severity of pain 66–7; on State
CAT see Convention against Torture and obligations 220, 223–7; on sterilisation
Other Cruel, Inhuman or Degrading of Romani women 145–6; see also
Treatment or Punishment Convention against Torture and Other
CAT Committee see Committee against Cruel, Inhuman or Degrading Treatment
Torture or Punishment (CAT); Subcommittee on
CEDAW see Convention on the Elimination Prevention of Torture and Other Cruel,
of All Forms of Discrimination against Inhuman or Degrading Treatment or
Women Punishment of the Committee against
CEDAW Committee see Committee Torture
on the Elimination of All Forms of Committee on Economic, Social and
Discrimination against Women Cultural Rights (ICESCR Committee)
CERD Committee see Committee on the 112, 115, 133
Elimination of Racial Discrimination Committee on the Elimination of All
Chad 58, 162, 170, 228 Forms of Discrimination against Women
Charlesworth, Hilary 9, 11, 12, 14, 16–17, (CEDAW Committee): on involuntary
19, 21, 158 sterilization 83, 86–7, 133–4, 139,
Charter of Fundamental Rights of the 144–5; on restrictions on abortion
European Union 39 115–17, 152–4; see also Convention
childbirth: and depression 74; impact of on the Elimination of All Forms of
128–9; pain and suffering of 81–2, 96, Discrimination against Women (CEDAW)
264; right to choose the method of 6 Committee on the Elimination of Racial
childcare 121–2, 126, 129, 130 Discrimination (CERD Committee) 132,
Chile 181, 249 137, 144
Index 305
Congo 180; see also Democratic Republic of 233–6; consequences of categorising
the Congo (DRC) conduct as 220–31; difficulties with
Constitutional Court of Colombia 118 defining 231–3; distinction between
contraception 7, 122, 123, 126, 142, 200 torture and 232–3, 236–43; element
Convention against Torture and Other Cruel, of purpose 242–3; element of severity
Inhuman or Degrading Treatment or 240–1; expansive approach to 49–61;
Punishment (CAT) 4–5, 33–6; concept involuntary sterilisation as 252–4, 258,
of ‘consent or acquiescence’ 166–8; 268; restrictions on abortion as 249–52,
concept of ‘due diligence’ 160–4, 258–9, 268–9; right to be free from
168–9; definition of torture 4n21, 24–5, 2–4, 8, 10; see also Convention against
33–4; discrimination as purpose of the Torture and Other Cruel, Inhuman or
act 110; ‘lawful sanctions’ clause 27, Degrading Treatment or Punishment
204–18; meaning of ‘act’ 63–5; meaning (CAT); degrading treatment; inhuman
of ‘intentionally’ 98–106; meaning or degrading treatment or punishment
of ‘severe’ 65–7; on consequences of (IDT)
perpetrating torture or CIDT 220, 222–7; Curtis Francis Doebbler v Sudan 48, 51n149
‘powerlessness’ requirement 172–81; Curtis, Jesse 87
principle of universal jurisdiction 227–8; Cusack, Simone 121, 122, 127, 135, 137
‘public official’ requirement 147–71, Czech Republic 59–60, 133, 143–6, 170–1,
236, 269–70; ‘severe pain or suffering’ 193, 201–2, 252–3
requirement 62–7; see also Committee
against Torture (CAT Committee) D v United Kingdom 41, 51n151
Convention on the Elimination of All Dagg, Paul 74
Forms of Discrimination against Danelius, Hans 33, 37, 49, 64, 98, 150,
Women (CEDAW) 13–14; definition of 173, 182, 207, 228
discrimination 111–12; see also Committee date rape 40, 51
on the Elimination of All Forms of Davis, Angela 137
Discrimination against Women (CEDAW death penalty 217, 234–5
Committee) Declaration on the Protection of All Persons
Cook, Rebecca J 19, 108, 116, 117, 119, from Being Subjected to Torture and
121, 122, 124, 127, 129, 134, 137 Other Cruel, Inhuman or Degrading
Coomaraswamy, Radhika 9, 94, 177, 269 Treatment or Punishment 33, 163, 206
Copelon, Rhonda 95, 103–4, 157–8, 160, degrading treatment 243–7; definition
175–6, 255 244; see also cruel, inhuman or degrading
corporal punishment 51–3, 93, 164, 234–5; treatment or punishment (CIDT)
and ‘lawful sanctions’ clause 206, 208–11 Democratic Republic of the Congo (DRC)
Costello-Roberts v United Kingdom 246n122 56, 67, 167; see also Congo
Cotterrell, Roger 185 Denmark 206
Court of Justice of the African Union 47 depression: and abortion 72–4; and
Cousineau, Tara M 83 infertility 85; and involuntary sterilisation
Cozzarelli, Catherine 75 88; and stigmatisation 76; and unwanted
CPR see civil and political rights childbearing 70, 74; postpartum 74
Crenshaw, Kimberle 137 detention 234–5; private facilities 160–1; see
cruel, inhuman or degrading treatment or also imprisonment; prisoners
punishment (CIDT) 219–47; and jus cogens developed countries: abortion on health
220; and principle of non-refoulement grounds in 71; sterilisation procedures in
224–5; and principle of proportionality 90–1
237–40; and principle of universal developing countries: abortion on health
jurisdiction 227–9; and regional systems grounds in 71; sterilisation procedures in
38–49; and the international system 89–90; unsafe abortions in 77
29–38; approach of the African system DH and Ors v the Czech Republic 143
47–9; approach of the European system Dickens, Bernard M 116, 129
39–44; approach of the Inter-American Dimitrov v Serbia and Montenegro 103n27
system 44–7; conduct that constitutes direct discrimination 110–11, 119
306 Index
direct intention 99–101, 105 European Commission of Human Rights
disabled women 133, 134 64–5, 232, 241, 246
disappearances 45, 46, 52, 163 European Committee for the Prevention
discrimination: and abortion 108, 112n7, of Torture and Inhuman or Degrading
113–31; and gender differences 119–20; Treatment or Punishment 42–4
and involuntary sterilisation 112n7, European Convention for the Prevention
131–46; and socially constructed of Torture and Inhuman or Degrading
definitions of gender 121–2; based on Treatment or Punishment (European
class 88, 114, 138, 141, 253; based on Torture Convention) 39, 42–4
ethnicity 129, 137, 138; based on race European Convention for the Protection
87–8, 114, 129, 137–8, 144–6; based on of Human Rights and Fundamental
sex 246; CEDAW definition of 111–12; Freedoms (ECHR) 39–42, 164
direct 110–11, 119; indirect 110–11, European Court of Human Rights (European
120; intersectionality of 137; in the CAT Court) 40–2, 51; approach to distinction
definition of torture 110; within the between torture and CIDT 240–1;
feminist movement 136–9 approach to State responsibility for
distress 84, 85, 198 torture and CIDT 163–4; broadening the
doctrine of double effect 106–9 interpretation of torture 256; corporal
Domar, Alice 83 punishment 93, 164; degrading treatment
domestic violence 137, 159; as form of 246–7; discrimination against Roma
subordination 176; as torture 95, 157–8; 143–4; involuntary sterilisation 87, 155;
in Greece 58, 170; in Indonesia 58, 170; principle of non-refoulement 224; rape as
in Ireland 58–9; see also intimate partner torture 178; restrictions on abortion 69,
violence 117; stigma of torture 230
Dougoz v Greece 43n96 European Torture Convention see European
Downing, Lisa 195 Convention for the Prevention of Torture
Draft Articles on Responsibility of States for and Inhuman or Degrading Treatment or
Internationally Wrongful Acts 64 Punishment
Dragan Dimitrijevic v Serbia and Montenegro European Union (EU) 39–40
66, 103n27 Evans, Malcolm 163, 245
‘due diligence’ approach 160–4, 168–9
Dworkin, Ronald 107 female body 196, 198–9
Dzemajl et al v Serbia and Montenegro 56, 166 female genital mutilation (FGM) 95, 236;
Dzemajl et al v Yugoslavia 225, 235 and ‘lawful sanctions’ clause 216–17;
State facilitation of 52, 58, 154–5, 161,
East African Asians v United Kingdom 246 165, 169–70
ECHR see European Convention for the female sexuality 187, 198
Protection of Human Rights and feminist essentialism 11
Fundamental Freedoms feminist movement 136–9
economic, social and cultural rights (ESCR) Ferenčiková, Helena 146, 202
22–3, 157 Fergusson, David 72
Ecuador 251 FGM see female genital mutilation
Ehrenreich, Barbara 197–8 Filártiga v Peña-Irala 37
Ehrenreich, Nancy 183 Fisse, Brent 100
Eisenstein, Zillah 121 flogging 208–9, 211
Engle, Karen 16 foetus: protection of 123, 125–6; rights of
English, Deidre 197–8 7, 123–4
epidurals 82 forced abortion 60, 139, 141, 256
ESCR see economic, social and cultural rights forced miscarriage 60, 256
ethnicity-based discrimination 129, 137, Foucault, Michel 186, 195–6
138 Fourth World Conference on Women
ethnic minority women 138, 139; see also (Beijing) 15, 79
indigenous women Freidson, Eliot 194
eugenic sterilisation laws 192 Fujimori, Alberto 141, 200
Index 307
Gaer, Felice 169, 224 human trafficking 236
gender: equality 15, 118–20; mainstreaming humiliation 244–7
15–18; sidestreaming 13–4, 18; socially
constructed definitions of 121 ICCPR see International Covenant on Civil
gender-based violence 111–12, 168 and Political Rights
Geneva Conventions 30 ICESCR Committee see Committee on
Gilman, Charlotte Perkins 197 Economic, Social and Cultural Rights
Ginsburg, Ruth Bader 108 ICTR see International Criminal Tribunal for
Giri v Nepal 33n19 Rwanda
Glover, Jonathan 63, 106, 107 ICTY see International Criminal Tribunal for
Gonzales v Carhart 72 the former Yugoslavia
González et al v Mexico 46, 163 IDT see inhuman or degrading treatment or
Goodman, Ryan 47 punishment
Gorolová, Elena 202 IG and Ors v Slovakia 42n83, 51n152, 155,
governmentality 196 202n159, 246
Gramzow, Richard 76 imprisonment: conditions of 215n47; long-
Graycar, Regina 128 term 214–15; see also detention; prisoners
Greece 58, 65, 170 India 90
Greek Case, The 64–5, 164 indigenous women 133, 134, 137, 141, 200;
Greer, Germaine 84 see also ethnic minority women
grief 85–6 indirect discrimination 110–11, 120
Grover, Anand 76, 151 Indonesia 58, 59, 169, 170
Guengueng et al v Senegal 228 infertility 83–6
Ingelse, Chris 211, 213
habeas corpus principle 230 inhuman or degrading treatment or
Habrè, Hissène 228 punishment (IDT) 39–43; see also cruel,
haemorrhage 78, 79 inhuman or degrading treatment or
Handmaid’s Tale, The 271 punishment (CIDT)
hanging 235 intellectual disabilities 88, 131
Hartmann, Betsy 134, 135 intention 97–106; broad conceptualisation
health service providers 115–16 102–6; direct 99–101, 105; distinguished
heterosexual sex 178–9 from negligence 99–102; meaning under
Higginson v Jamaica 52n156 CAT 98–106; oblique 100–1, 105; see also
HIV-positive women 88 doctrine of double effect
honour killings 10, 95, 269 Inter-American Commission on Human
hooks, bell 136 Rights (Inter-American Commission)
Howard, Susannah 117, 124 178
HRC see Human Rights Committee Inter-American Convention on Human
Human Rights Committee (HRC): and Rights 163
distinction between torture and CIDT Inter-American Convention to Prevent and
232; conduct constituting CIDT 234–5; Punish Torture (Inter-American Torture
consequences of perpetrating torture or Convention) 44–5
CIDT 220–2, 224; degrading treatment Inter-American Court of Human Rights
245; expansive approach to the issue of 45–6, 51, 162–3
torture 52–5; involuntary sterilisation Inter-American Torture Convention see Inter-
133, 155, 161–2, 252–4; ‘powerlessness’ American Convention to Prevent and
of the victim 175; principle of Punish Torture
proportionality 237–8; principle of International Association of Penal Law 205
universal jurisdiction 229; restrictions International Conference on Population and
on abortion 68–9, 116, 151–2, 249–52; Development 79, 138
State responsibility 160–2, 168–9; unsafe International Covenant on Civil and
abortions 152 Political Rights (ICCPR) 4, 30, 52–3;
Human Rights Council 32, 165, 182, consequences of perpetrating torture or
242 CIDT 221–2; death penalty 217;
308 Index
International Covenant on Civil and Political approach to 136–9; forced 7; in Africa
Rights (ICCPR) (cont.) principle of 88; in China 87, 132, 133, 139–41, 193;
universal jurisdiction 229; prohibition of in Czech Republic 59–60, 133, 143–6,
discrimination against women 112 170–1, 193, 201–2, 252–3; in Japan 133;
International Covenant on Economic, in Nazi Germany 192; in Peru 59, 132,
Social and Cultural Rights (ICESCR) 133, 134, 141–3, 170, 200–1, 252–3;
112 in Slovakia 42, 54, 87, 132, 133, 155–6,
International Criminal Tribunal for Rwanda 202, 253; in Sweden 192; in United
(ICTR) 30, 51, 93 States 87–9, 132, 192, 199–200; of
International Criminal Tribunal for the ethnic minority women 138, 139; of HIV-
former Yugoslavia (ICTY) 30, 32, 38, 51, positive women 88; of indigenous women
65, 104, 124–5 133, 134, 137, 141, 200; of Romani
international criminal tribunals 23, 65, 178; women 54, 87, 88, 132–4, 143–6, 155,
see also International Criminal Tribunal 193, 246–7, 252–3; of women with
for the former Yugoslavia (ICTY); intellectual disabilities 88–9, 131, 134;
International Criminal Tribunal for on eugenic grounds 192; severe pain and
Rwanda (ICTR) suffering’ as foreseeable consequence 106;
International Day in Support of Victims of State responsibility for 154–6, 161–2;
Torture 40 women as disproportionally affected 134,
international law: and gendered coding of 140–1; see also sterilisation
binary oppositions 21–2; and ‘lawful Iran 56
sanctions’ clause 212–16; challenging the Ireland 58–9, 250
system 19–24; gendered nature 11–24; Ireland v United Kingdom 41, 230, 232,
gender mainstreaming 15–18; gender 240–1, 258
sidestreaming 13–14, 18; primacy of Islamic States 206, 208–11
civil and political rights 22; prohibition Istanbul Protocol see Manual on the Effective
of discrimination against women 112; Investigation and Documentation of
public/private distinction 20–1, 118, Torture and Other Cruel, Inhuman or
156–9, 270; viewing cases of sexual Degrading Treatment or Punishment
violence 23; working within the system Italy 212
12–18
International Law Commission 64 Jackson, Frank 99
internationally wrongful acts 64 Japan 58, 133, 170
interrogation: and torture 49–51; body of Joseph, Sarah 215, 222
standards 43; in the context of intimate jus cogens 8–9, 38, 220
partner violence 176; techniques 241
intimate partner violence: and Kaba v Canada 52, 161
‘powerlessness’ 175–7, 239; as torture or Kant, Immanuel 106
CIDT 61, 165, 175–7, 234, 236, 255; see Kazakhstan 54, 251
also domestic violence Keremedchiev v Bulgaria 67, 211–12, 238,
intimidation: and intimate partner violence 240n93, 241
176; and rape 178 Kisoki v Sweden 55
invalidism 197 Kooijmans, Peter 165
involuntary sterilisation 7–8; and depression Kouvo, Sari 17, 18
88; and human rights 2; and ‘lawful Kreimer, Seth 92
sanctions’ clause 216–17; and mental pain
or suffering 86–9; and physical pain or Lacey, Nicola 99
suffering 89–95; and power of law 192–4; lashes 48
and powerlessness 192–202; and power of Latin America 45
medicine 199–202; and self-esteem 88; law: and involuntary sterilisation 192–4;
as discrimination against women 112n7, and men control over women’s bodies
131–46; as torture or CIDT 252–4, 187; and restrictions on abortion 184–8;
258, 266–8; as violence against women and State control over women 186–7; as a
95; coerced 7; compulsory 7; feminist tool of empowerment 184–5; as protector
Index 309
184–5; as tool of disempowerment 184–5; medical examinations 245
power of 184–8, 192–4 medicine: and involuntary sterilisation
law enforcement officers 235 199–202; and restrictions on abortion
Law for the Prevention of Genetically 189–92; power of 189–92, 194–9
Diseased Offspring 192 Mejía v Peru 47, 51n153, 178n29
‘lawful sanctions’ clause 27, 204–18; and Méndez, Juan 8–9, 192
corporal punishment 206, 208–11; and mental health 68, 71–5; see also mental pain
female genital mutilation 216–17; and and suffering
involuntary sterilisation 216–17; and Mental Health Review Board 195
restrictions on abortion 216–17; and mental pain and suffering: and involuntary
restrictions on reproductive freedom sterilisation 86–9; and restrictions on
216–18; as relating to domestic law abortion 68–77
208–12; as relating to international Miguel Castro-Castro Prison v Peru 45n106,
law 212–16; drafting history of 205–8; 46, 51n153
interpretations 208–16; see also sanctions Millett, Kate 181
LC v Peru 117, 152 miscarriage 60, 188, 256
Leader-Elliot, Ian 101 Morgan, Jenny 128
League of Human Rights 201 Morocco 54, 251
legal archetypes 91–2, 230–1 MV v The Netherlands 225
Leopold II 180
Lippman, Matthew 213 Namibia 88
Llantoy Huamán v Peru 3n15, 52, 69, Nazi Germany 192
115n18, 116, 151, 250 NB v Slovakia 87, 155, 201–2
LM and Ors v The Government of the Republic of negligence 99–102
Namibia 88n143 negligent conduct 98–90; distinguished
LMR v Argentina 69, 116, 152, 250 from reckless conduct 101–2
LNP v Argentina 52, 53 Netherlands 212
Lomax, Eric 181 NG v Canada 224n23
long-term imprisonment 214–15 Nicaragua 59, 153, 249, 251
Lorsé v Netherlands 43n96 Njamba and Balikosa v Sweden 167
Lost: Illegal Abortion Stories 188 non-refoulement 224–5
Luxembourg 212 Nott, Sue 17
Nowak, Manfred 26, 52n156, 60–1, 93, 98,
MacKinnon, Catharine 119, 121–2, 126, 102, 154, 165, 172, 182–3, 208, 210,
127, 131, 159, 177, 178–9, 186–7 213–15, 218, 222, 229, 236, 237, 239,
Madeira, Jody 85 242, 244, 256, 257
Madrigal v Quilligan 87
Major, Brenda 75, 76 oblique intention 100–1, 105
Manderson, Desmond 174 Olsen, Frances 158
Manila City 122 omissions 63–5
Manual on the Effective Investigation and Optional Protocol to the Convention against
Documentation of Torture and Other Torture and Other Cruel, Inhuman or
Cruel, Inhuman or Degrading Treatment Degrading Treatment or Punishment 35–6
of Punishment (Istanbul Protocol) 32 Osbourne v Jamaica 234
Maria Mamérita Mestanza Chávez v Peru 143, Osmani v Republic of Serbia 226
201 Otto, Dianne 16, 21
Maroons 45
Mason, Sir Anthony 101 P and S v Poland 42n82, 51n152, 117n27
maternal mortality 2, 78 Paniagua-Morales et al v Guatemala 45n106
McArthur, Elizabeth 98, 102, 210, 213–14, Paraguay 59, 153, 170, 249–50
218, 228, 242, 243 Partial-Birth Abortion Ban Act of 2003 72
McSherry, Bernadette 101 patient-centred therapy 196
MC v Bulgaria 40, 51n150, 164, 178n29 patriarchal societies 84
Media Rights v Nigeria 48 patriarchy 108
310 Index
Peers v Greece 41 Protocol on the Statute of the African Court
peremptory norms 37–8; see also jus cogens of Justice and Human Rights 47
Peru: involuntary sterilisation 59, 132–4, psychiatric interventions 235
141–3, 170, 200–1, 252–3; restrictions public hospitals 150, 154–5
on abortion 59, 153, 249, 250–1 ‘public official’ requirement 147–71, 236,
Petchesky, Rosalind Pollack 3, 118 269–70
Pettigrew, Joyce 90 public/private distinction 20–1, 118, 156–9,
physical health 70, 80, 128, 129, 259; see 270
also physical pain or suffering Puerto Rico 132
physical integrity 92–5 Punjab sterilisation program 90
physical pain or suffering: and involuntary
sterilisation 89–95; and restrictions on Qu v Gonzales 88n141
abortion 77–82 Quinteros v Uruguay 52n155
Pinochet, Augusto 181
Pollard, Matt 49–50, 221, 237, 242 race-based discrimination 87–8, 114, 129,
population control programs 134–5 137–8, 144–6
pornography 159, 177 rape 159; access to abortion for victims of
Posner, Eric 77 152; and international criminal law 23;
post-abortion syndrome 71–5, 127 and ‘powerlessness’ 177–80; and sex
power: and rape 178–9; and scientific 178–9; as offence of power 178–9; as
knowledge 186, 195–6; of law 184–8, process of intimidation 178; as torture 47,
192–4; of medicine 189–92, 194–9 51, 55, 93–4, 104, 125, 177–80; date 40,
powerlessness 26–7, 172–81, 242; and 51; see also sexual violence
intimate partner violence 175–7, 239; and Reardon, David 72
involuntary sterilisation 192–202; and recklessness 100–2
principle of proportionality 238–9; and Relf family 199–200
rape 177–80; and restrictions on abortion renal failure 78, 79
184–92; and restrictions on reproductive reproduction, as socially gendered 122
freedom 182–203; approach under reproductive autonomy 130, 191; see also
CAT 172–5; definitions 182; non-legal procreative autonomy
literature on 180–1 reproductive freedom: as human right 1–4;
Principles of Medical Ethics 31 future research 269–70; restrictions on
prisoners 242, 245; see also detention; 6–8, 10, 248–60, 268–9; see also abortion;
imprisonment involuntary sterilisation; restrictions on
private actors 149, 156, 159, 165, abortion
168–70 reproductive rights: concept 5; examples
private clinics 165 5–6; feminist approach to 136–7
private detention facilities 160–1 restrictions on abortion 6–7; and autonomy
private hospitals 154, 156 189; and human rights 2–3; and law
procreative autonomy 107–8; see also 184–8; and ‘lawful sanctions’ clause
reproductive autonomy 216–17; and medicine 189–92; and
property destruction 41, 51, 56, 166 mental pain or suffering 68–77; and
proportionality 237–40 physical pain or suffering 77–82; and
Prosecutor v Akayesu 24n107, 51n154, 93, powerlessness 184–92; and procreative
94n176, 178n30 autonomy 108; as CIDT 249–52, 258–9,
Prosecutor v Dragan Zelenovič 24n107 268–9; as discrimination against women
Prosecutor v Dusko Tadic 24n107 108, 112n7, 113–31; as inhuman
Prosecutor v Furundžija 24n107, 38, 51n154, treatment 59; as protecting women
65, 94n177, 178n30 127–8; as torture 249–52, 258–9, 263–5,
Prosecutor v Kunarac, Kovač and Vuković 268–9; consequences of 106, 150–4;
24n107, 104, 125 health exceptions 71, 189–91; legislative
Prosecutor v Mucić, Delić, Landžo & Delalić 32, impact 128–31; legislative purpose
33n19, 51n154, 94, 178n30 123–8; State responsibility 150–4;
Prosecutor v Sylvestre Gacumbitsi 24n107 stigmatising effect 75–7; see also abortion
Index 311
Rivera-Fuentes, Consuelo 181 Sonko v Spain 219n2
Robben Island Guidelines 48–9 ‘Sophie’s choice’ 259
Rochin v California 92 Special Rapporteur on torture and other
Rodley, Nigel S 4n21, 49–50, 165, 173, cruel, inhuman or degrading treatment or
215, 221, 232, 237, 240, 242 punishment (Special Rapporteur) 32, 38,
Roe v Wade 70, 81, 108, 118n31, 187 60–1, 165
Roma: involuntary sterilisation of women Special Rapporteur on violence against
54, 87, 88, 132–4, 143–6, 155, 193, women 13–14, 95
201–2, 246–7, 252–3; stereotypes of Speckhard, Anne 72
144 Sri Lanka 251
Romania 80 Stamen, Jayne 177
Romany, Celina 158 Standard Minimum Rules for the Treatment
Rome Statute of the International Criminal of Prisoners 31, 206–7
Court 30 State: control over women 186–7; direct
RR v Poland 42, 51n152, 69, 117n27, 246 responsibility for torture and CIDT
Rue, Vincent 72 149–59; indirect responsibility for
Russo, Nancy 74 torture and CIDT 156–71; obligations
relating to torture and CIDT 61,
Sahli v Algieria 103 220–7; responsibility for consequences
sanctions 216; see also ‘lawful sanctions’ of restrictions on abortion 150–4;
clause responsibility for internationally wrongful
Sarban v Moldova 41 acts 64; responsibility for involuntary
Saudi Arabia 208–9 sterilisation 154–6 , 161–2; see also ‘public
Scales, Ann 119 official requirement’
Schultz, Jenny 215 Steiner, Henry 47
Schulz, William 180 stereotypes: of Roma 144; of women’s
scientific knowledge 186, 194–6 nature and roles 120–2, 125–7, 129, 135,
Seidman, Michael 81 137
Selcuk and Asker v Turkey 41, 51n148 sterilisation: and post-operative pain 90–1;
self-esteem 74, 85, 88 and stereotypes of women 135, 137; in
Selmouni v France 41n72, 51n147, 256 developed countries 89–90; in developing
sepsis 78–9 countries 89; of men 134, 140; procedures
‘severe pain or suffering’ 62–96: and 89; see also involuntary sterilisation
childbirth 81–2, 96, 264; and involuntary stigma 76–7; and depression 76; and
sterilisation 83–95; and restrictions on infertility 84; and restrictions on abortion
abortion 68–82 75–7; of torture 229–31
sex: and rape 178–9; discrimination based on stoning 208–9
246; heterosexual 178–9 Strauss, Marcy 254–5
sex education 126 Suárez-Rosero v Ecuador 46
sexual abuse 60, 256 Subcommittee on Prevention of Torture
sexual harassment 60, 256 and Other Cruel, Inhuman or Degrading
sexual violence 23, 61, 236; see also rape Treatment or Punishment of the
shackling 238 Committee against Torture 36
shari’a law 208, 211 suicides 84, 251
shari’a punishments 48 Sweden 192
Sheldon, Sally 190
Siegel, Reva B 71, 108, 124, 129 Thomson, Judith Jarvis 108
Singh, Susheela 80 TM v Sweden 225
Sit, Dorothy 74 torture: African system 47–9; and autonomy
Slovakia 42, 54, 87, 132, 133, 155–6, 202, 180; and principle of non-refoulement
253 224–5; as abuse of power 175; broadening
Smart, Carol 185–6 the interpretation of 55–6, 256–7; CAT
Soering v United Kingdom 224n23 definiton 4n21, 24–6, 33–4; consequences
solitary confinement 234 of categorising conduct as 220–31;
312 Index
torture: (cont.) definition by Inter-American involuntary sterilisation in 87–9, 132,
Torture Convention 44; direct State 199–200; ‘lawful sanctions’ clause 206,
responsibility 149–56; distinction 212; principle of procreative autonomy
between CIDT and 232–3, 236–43; 108; prohibition of torture as legal
domestic violence as 95, 157–8; element archetype 92; right to abortion 187
of of purpose 242–3; element of severity United States Court of Appeals for the
240–1; European system 39–44; expansive Ninth Circuit 88
approach to the prohibition of 49–61; fear United States Court of Appeals for the
of diluting the meaning 254–7; gender- Second Circuit 37
sensitive interpretation 256–7; gender- United States Supreme Court 70, 118, 187
specific forms 256; history of 50; indirect Universal Declaration of Human Rights 4,
State responsibility for 156–71; Inter- 30–1, 112
American system 44–7; international universal jurisdiction 220, 227–9
system approach 29–38; in the context unsafe abortions: and mental health 68;
of interrogations 49–51; intimate and restrictions on abortion 79–81, 149;
partner violence as 61, 165, 175–7, definition 78; mortality 2, 78, 80–1;
255; involuntary sterilisation as 252–4, physical effects 77–9, 188; statistics 77–8;
266–8; methods of 49–50, 180–1, 254; see also abortion; restrictions on abortion
principle of universal jurisdiction 220, Ussher, Jane 198
227–9; prohibition as a legal archetype
92, 230–1; prohibition as a customary vasectomy 134, 140
international law 37; prohibition as a VC v Slovakia 42n83, 51n152, 87, 155,
peremptory norm 8–9, 37–8; rape as 47, 202n159
51, 55, 93–4, 104, 125, 177–80; regional VCLT see Vienna convention on the Law of
systems approach 38–49; restrictions Treaties
on abortion as 249–52, 258–9, 263–5, Velásquez Rodríguez v Honduras 45, 46,
268–9; right to be free from 2–4, 8, 10; 162–3
Stanford Encyclopedia of Philosophy entry Viana Acosta v Uruguay 235
on 180; stigma of 229–31; traditional Vienna convention on the Law of Treaties
paradigm 10, 49–51 (VCLT) 210
Trinidad and Tobago 251 Vienna Declaration and Programme of
Turner, Bryan 196 Action 15
Tyrer v United Kingdom 41, 46, 48, 51n149, virginity testing 60, 256
93n172 VL v Switzerland 55, 174, 256
Tysiac v Poland 115n18, 116n27 Vuolanne v Finland 232n61
Undurraga, Verónica 119 Wainer, Jo 188

United Kingdom 99, 212 Waldron, Jeremy 91–2, 230–1, 233, 255
United Nations: and gender mainstreaming waterboarding 181, 254, 262
15–18; efforts to combat torture and Wattleton, Faye 1
CIDT 32–3; representation of women in Williams, Glanville 100
13; see also Convention against Torture Wolinsky, Fredric 195
and Other Cruel, Inhuman or Degrading Women with Disabilities Australia 89
Treatment or Punishment (CAT) Woodhull, Winifred 179
United Nations Economic and Social World Health Organization (WHO) 68, 71,
Council 15 75, 77, 80, 83
United Nations High Commissioner for Wright, Shelley 19, 158
Human Rights 22–3
United States: abortion–related deaths 81; Yemen 211
court-ordered caesarian sections 183;
eugenic sterilisation laws 192; feminist Z v United Kingdom 164
approach to reproductive rights 136–7; Zierk, Kristin 74

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Reproductive Freedom, Torture and

International Human Rights

This book contributes to a feminist understanding of international human

Ronli Sifris is a lecturer in the Law Faculty at Monash University and is an

Available titles in this series include:

The Right to Development in International Law

Global Health and Human Rights

The Right to Religious Freedom in International Law

Emerging Areas of Human Rights in the 21st Century

The Human Right to Water and its Application in the Occupied

International Human Rights Law and Domestic Violence

Human Rights in the Asia-Pacific Region

Human Rights Monitoring Mechanisms of the Council of Europe

The Positive Obligations of the State under the European Convention

Vindicating Socio-Economic Rights

Regulating Corporate Human Rights Violations

The UN Committee on Economic, Social and Cultural Rights

State Security Regimes and the Right to Freedom of Religion and

The European Court of Human Rights in the Post-Cold War Era

The United Nations Human Rights Council

Children and International Human Rights Law

Litigating Transnational Human Rights Obligations

Reproductive Freedom, Torture and International Human Rights

Forthcoming titles in this series include:

Jurisdiction, Immunity and Transnational Human Rights Litigation

ISBN: 978-0-415-65963-5 (hbk)

Typeset in 11/12 Garamond 3 by

2 Overview of the prohibition of torture and other cruel,

3 Severe pain or suffering 62

5 Purpose: discrimination 110

6 Public official 147

8 Lawful sanctions 204

9 Cruel, inhuman or degrading treatment 219

Selected bibliography 272

Reproductive Freedom, Torture and International Human Rights:

On December 10 1948 the international community made a commitment

The Hon Marilyn Warren AC

• Ronli Sifris, ‘Conceptualising Involuntary Sterilisation as “Severe Pain or

In addition, I am extremely grateful to the Honourable Marilyn Warren AC,

ACHR American Convention on Human Rights

This is an important book, the critic assumes, because it deals with

Restrictions on abortion and involuntary sterilisation procedures may also

16 Center for Reproductive Rights, The World’s Abortion Laws (2011).

(a) Reproductive rights

[R]eproductive rights embrace certain human rights that are already

Examples of reproductive rights include:

• the right to birth control

Accordingly, reproductive rights include the freedom to decide whether,

(b) Restrictions on reproductive freedom

3 Aims and contribution

Inhuman or Degrading Treatment or Punishment, UN Doc E/CN.4/1986/15 (19 February

• whether restrictions on reproductive freedom may constitute torture,

4 Context: the gendered nature of international law

(a) Working within the system

(i) Gender sidestreaming

45 United Nations, Secretary-General http://www.un.org/sg/formersgs.shtml at 19 April 2013.

(ii) Gender mainstreaming

Mainstreaming a gender perspective is the process of assessing the impli-

[W]hile the UN woman-centred institutions promote a social construc-

Even disregarding the conceptualisation of gender which forms the basis

(iii) Working within a defective system

Within the UN system there seems to have been a tendency to promote

Thus while the widespread adoption of gender mainstreaming policies to