Human rights are principles based on a philosophy that sets out to abolish discrimination against certain individuals and to provide every human being with basic entitlements, such as a right to live and die with dignity. Plainly put it is the inherent right one holds because they were born.
The Preamble to the Universal Declaration of Human Rights states: “Recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world.”
Domestic violence has been prevalent globally for aeons in explicit forms such as physical or sexual exploitation or latently as mental harassment and torture. It is a suffering that has plagued women in our societal structure without any action against it from a Human Rights perspective up until very recently. Though domestic violence against men is an extremely important and pertinent issue, International Human Rights bodies have approached it with an act of violence against women. Measures against domestic violence have been implicitly been provided for in all Human Rights conventions in texts such as:
- Articles 1, 5, 16 and 23 of the Universal Declaration of Human Rights, 1948
- Article 12(1) of the International Covenant on Economic, Social and Cultural Rights, 1966
- Article 7 of the International Covenant on Civil and Political Rights (ICCPR), 1966
- Article 4(c) of the Declaration on the Elimination of Violence against Women (DEVAW)
We see that though domestic violence is clearly a violation of basic human rights such as the right to not be tortured, be treated with dignity and humanity and to live a private and social life, it wasn’t until 2007 that the European Court of Human Rights had issued any cases with respect to domestic violence. Nonetheless in a series of cases the Human Rights Council passed various laws from rationales, proving and admitting that domestic violence is a violation of basic Human Rights. In the case of Opuz v. Turkey where the authorities failed to protect the victim resulting in the death of her mother, the court passed that domestic torture is a violation of basic rights of an individual. Similarly in the case of Jessica Gonzales v. US, this was the first case by a victim against the state of USA at an international court (Inter American Commission on Human Rights (IACHR)) in which the Victim’s estranged husband had kidnapped her children, held that domestic violence is the exploitation of a vulnerable community.
One of the most recent developments on this topic is one in the case of Rumour v. Italy in June of 2014 by the European Court of Human Rights that was followed by the passing and implementation of Council of Europe’s Convention on Preventing and Combating Violence against Women and Domestic violence in August of that year. These conventions and cases show us that international courts like the ECtHR have built an extensive jurisprudence for the labelling of domestic violence as a violation of Human Rights.
The challenge before these courts and the authorities of all nations is using these human rights laws to its full potential. There still lies a huge gap between the existence of such laws and its implementation, especially in developing countries like India where domestic violence is something to be kept as a familial issue and not social. It is the lack of knowledge about the rights women possess or the fear of misappropriation of the law by the local authorities and alienation from society. Another problem is normalisation of domestic violence and even though our laws provide for domestic violence as a reason for divorce, there still hasn’t been any fundamental right under the purview of human rights in India with respect to it.