The Istanbul Convention: A Missed Opportunity in Mainstreaming Cyberviolence against Women in Human Rights Law?

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The monitoring body of the Council of Europe (CoE) Istanbul Convention, GREVIO, has recently adopted its very first General Recommendation which is specifically devoted to the ‘Digital Dimension of Violence against Women’. This development is important considering that the text of the Istanbul Convention had no direct or indirect reference to cyber forms of violence against women (CVAW). This post discusses whether this move of GREVIO can be interpreted as a strong commitment of the CoE to address CVAW or another occasion of a missed opportunity in mainstreaming CVAW into the legally binding frameworks concerning violence against women (VAW). This study pursues answers to this question by evaluating the difference between the normative value of soft law and legally binding (i.e., hard law) instruments.

The Silence of the Istanbul Convention on Cyberviolence against Women (CVAW)

CVAW can be defined as any form of gender-based violence expressed through information and communication technologies (ICT) that results in or is likely to result in, physical, sexual, psychological, or economic harm or suffering for women. In this context, CVAW encompasses a wide array of online or technology-enhanced violence against women, including cyberharassment, sexist hate speech, online stalking, cyberbullying, revenge porn, sextortion, phishing, deepfakes, Internet-of-Things facilitated domestic violence and many other forms. 

The Istanbul Convention, besides being the first legally binding treaty that specifically handles VAW in Europe, is still the most comprehensive human rights treaty across the world in terms of the scope of obligations it imposes on state parties. Although the Convention entered into force as recently as in 2014, unfortunately, it does not make any mention of cyber, online or digital forms of VAW. It is striking that one of the youngest and most comprehensive instruments against VAW, the Istanbul Convention, kept silent on such increasing threats against women that continuously diversify along with the new technologies. Furthermore, the Explanatory Report to the Convention is also silent on the matter with the only exception of ‘online stalking’. In the report, the drafters explicitly stated that stalking encompasses ‘following the victim in the virtual world (chat rooms, social networking sites, etc.)’ (para 182). In the General Recommendation No 1, this is interpreted as an indication that the drafters did not intend to distinguish between online and offline experiences of gender-based VAW, but interestingly, the Recommendation did not elaborate on the fact that this was the only occasion where the drafters of the Convention recognised online forms of violence.

This oversight becomes even more striking considering that the Istanbul Convention came into existence ten years after the CoE’s Budapest Convention which is arguably the most comprehensive human rights instrument on cybercrime. This inevitably raises the question of whether the Istanbul Convention presents a failure in integrating CVAW into the mainstream conceptualisation of VAW. 

It can be argued that, even if GREVIO had not adopted this General Recommendation, the Convention still applies to CVAW. The Istanbul Convention defines VAW to encompass all forms of violence (including physical, sexual, psychological, and economic) (Article 3(a)), and the forms of CVAW listed above can easily fit into one or more of these categories of harm. Beyond this, in looking at the spirit of the convention, it is clear that violence is considered a gendered phenomenon that is caused by and results in gender inequality, and all forms of gender-based VAW are included in the Convention. There is no doubt that CVAW is the reflection of the same power inequality between women and men, utterly gendered, and therefore is included in the scope of the Convention.

If the Istanbul Convention had already contained CVAW, then the question becomes why did GREVIO need to adopt a specific General Recommendation -and the very first one- that is specifically devoted to the digital dimension of VAW? This Recommendation can be argued to be an attempt of GREVIO to close the normative gap that the drafters left around CVAW while writing the main text of the Convention. In other words, CVAW was not explicitly included in the treaty itself which is legally binding (and hard law), and there is now an attempt to incorporate it into the VAW framework through a General Recommendation which is not legally binding (and soft law). In fact, in international human rights law, soft law instruments are considered to include recommendations, resolutions or declarations that do not impose legal obligations on states and in this regard, the Recommendation of GREVIO fits into the soft law category. Hard law, on the other hand, refers to legally binding instruments such as treaties and conventions, therefore the Istanbul Convention itself is a hard law instrument.

It is then worth discussing whether this soft law path that is taken by GREVIO should be considered an effective way of mainstreaming CVAW into the VAW frameworks or, on the contrary, another occasion where CVAW is side-lined and is excluded from the scope of a legally binding instrument. How to approach this question depends on how one evaluates the normative value of soft law and hard law instruments and the differences between the two and this will be discussed in the next section.

Soft Law vs Hard Law in Addressing Cyberviolence against Women

Soft-law instruments indeed played a significant role, particularly in the development of human rights responses to VAW. For example, as argued by Sosa (2017) the CEDAW Committee’s interpretive works on CEDAW, which constitute soft law, have significantly influenced State behaviour at a domestic level and the general policies leading to the adoption of legally binding instruments at an international level. The preamble of the Istanbul Convention is a good example where the Convention explicitly referred to some specific recommendations which made it clear that these soft law instruments had constituted a strong guideline for the drafters in their designation of the Convention. In this context, Boyle and Chinkin (2007) argued that soft laws must be considered as delegated laws as they do not only supplement the limited jurisprudence in human rights law but also contribute to their status.

As evident in the example above, there is a permeable and interactive relationship between soft law and hard law instruments. In fact, as Shelton (2008) argues, soft law tools affect state behaviours and general ideas, ignite political initiatives, and in many cases, lead to the adoption of legally binding instruments. For this reason, in contrast to the binary thinking between binding and non-binding instruments, as Fajardo (2014) indicated, some have suggested the idea of graduated normativity or continuum or the existence of a penumbra in which soft law has its being. 

While there may not be a distinct line between the two, there are still significant advantages to legally binding rights or instruments. Firstly, granting a binding status to an issue has a symbolic value where the said issue is expressed as one of the top-priority matters to all states and international bodies. Therefore, including CVAW explicitly into the text of the Istanbul Convention would have at the very least, spread the message to states that CVAW is not any less important than the traditional or offline forms of VAW and should be treated on equal terms.

Secondly, as Thürer (2015) argues, the juridical qualification of a norm can be highly determinative on the extent of states’ implementation and compliance of the norm. In this context, the inclusion of CVAW into an instrument qualified as legally binding would bring about a state’s responsibility to prevent, investigate, and prosecute CVAW on stronger and more secure grounds. Considering that states often fail to implement even the legally binding norms, handling CVAW under a soft law structure is prone to problems from the beginning. Although a law’s legally binding status does not guarantee effective implementation, for an issue such as CVAW which still has not been regulated in many international and national laws, derogating from the juridical qualification of CVAW regulations is a particularly risky approach.

Concluding Remarks

The first General Recommendation to the Istanbul Convention which specifically deals with the digital dimension of VAW can be considered as an attempt of GREVIO to make up for the normative gap that the text of the Convention left with regards to CVAW. As discussed above, there are various drawbacks in handling CVAW through soft law mechanisms, and undoubtedly, the ideal scenario would be one in which the Convention makes an explicit reference to cyber forms of VAW. This would not be too much to expect from an instrument as recent as the Istanbul Convention. On the other hand, the Recommendation demonstrates how CVAW is taken seriously by GREVIO in specific and the CoE in general and therefore can be considered as a positive step in including CVAW into the mainstream understanding of VAW in human rights law. It remains to be seen whether the CoE will decide to pursue its fight against CVAW on more secure, namely hard law grounds, for example via an Additional Protocol in the future.

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