Contents

I. Introduction

In March 2021, the World Health Organisation (WHO) published estimates according to which “worldwide, almost one third of women aged 15–49 years who have been in a relationship report that they have been subjected to some form of physical and/or sexual violence by their intimate partner”.¹ The phenomenon is widespread across continents with estimates slightly changing from one region to another, but overall depicting a similar pattern whereby the subjugation of women to different types of domestic violence is nothing but a common practice.² It is crucial to acknowledge that physical or sexual offences are simply two of the many facets of domestic violence. For the purpose of this work, the notion of domestic violence mirrors that given by the United Nations (UN) and goes beyond sexual and physical violence, taking into consideration psychological, emotional and economic violence.³ Moreover, from a methodological point of view, it is worth stressing—as shown by the aforementioned statistics—that the present work adopts a narrower focus, assessing the specific case of domestic violence against women.⁴ Nevertheless, the considerations and arguments put forward throughout the work could arguably apply by analogy to domestic violence against members of the LGBTQIA+ community, men as well as children.⁵

The objective of the present work is to discuss some of the implications, issues and consequences arising from the conceptualisation of domestic violence against women through the prism of torture. Analysing domestic violence through the lens of torture allows for an accurate depiction of the seriousness of such violence, that many times escapes public scrutiny. Aside from this, the work highlights the possible implications for both state and individual criminal responsibility emerging from understanding domestic violence within the legal framework of torture. In doing so, the analysis clearly differentiates between the separate offence of torture also known as the discrete crime of torture as defined in Art. 1 of the UN Convention against Torture of 1984 (UNCAT) and the prohibition of torture as imposed on states under other international human rights law treaties.⁶ When considering the discrete crime of torture emphasis is put on acquiescence as it could represent a powerful avenue to expand the application of the torture criminal framework to cover domestic violence against women.

To achieve its aim, the analysis proceeds as follows. Section 2 builds the case for why domestic violence can be considered qualitatively similar to acts of torture. Section 3 introduces the peculiar nature of UNCAT and makes the distinction between the violation of the prohibition of torture as an obligation imposed on states and the discrete crime of torture. Section 4 focuses only on the discrete crime of torture and discusses the notion of acquiescence as a possible path to attribute private instances of torture (such as domestic violence) to the state. Section 5 examines some possible implications originating from the assimilation of domestic violence with the crime of torture in relation to state and individual criminal responsibility. Section 6 concludes.

II. Domestic Violence and Torture—Are the Two Even Similar?

As a first step, it is necessary to outline that compared to other private violations, domestic violence has been often equated to torture and proposals to include it within the torture protective framework have been frequently advanced.⁷ It is also important to mention that all of these proposals have been looking at domestic violence as torture from a human rights point of view, hardly considering the criminal implications of considering domestic violence as torture. For instance, in 1996 the Special Rapporteur on violence against women, its causes and consequences claimed that “the argument that domestic violence should be understood and treated as a form of torture […] is one that deserves consideration”.⁸ Moreover, General Recommendation No. 35 by the Committee on the Elimination of All Forms of Discrimination Against Women (CEDAW) has been crucial, explicitly providing that violence against women can and should be understood—in certain cases—as amounting to torture or cruel, inhuman or degrading treatment.⁹ In addition, Special Rapporteurs on torture and other cruel, inhuman or degrading treatment or punishment have paid attention to the issue of domestic violence for more than a decade now.¹⁰ In 2008, Special Rapporteur Nowak already considered domestic violence among the phenomena in need of the torture protective framework.¹¹ Unfortunately, as of now, only the very specific offence of rape has been labelled as torture by the Committee against Torture (CAT) in General Comment No. 2.¹² Despite this being a major advancement, more shall be done, as rape represents only one of the many offences that women may experience along the spectrum of domestic violence. Other treaty bodies such as the Human Rights Committee (HRC) also argued that domestic violence can amount to torture—in this specific case contradicting Art. 7 of the International Covenant on Civil and Political Rights (ICCPR).¹³

Whilst most of the human rights treaties provide for a prohibition of torture without necessarily defining what is meant by it, Art. 1 of UNCAT represents the most detailed and complete definition of torture at the international level. Thus, it is worth assessing whether domestic violence could meet the required elements of torture under the UNCAT. First and foremost, both domestic violence and torture include some form of physical and/or psychological suffering which usually persists over time.¹⁴ Secondly, in both cases the behaviour is committed with intent. Thirdly, as with torture, domestic violence is committed with some motive in mind, being this the intimidation or the punishment of women.¹⁵ Art. 1 of UNCAT provides that a certain conduct would amount to torture when it is committed “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”.¹⁶ However, by introducing the words ‘such’ and ‘as’ it is clear that the listed objectives were not meant to be exhaustive. Moreover, the discriminatory element typical of torture can always be considered fulfilled when the offence is committed “on the basis of their sex, gender identity, real or perceived sexual orientation or non-adherence to social norms around gender and sexuality”.¹⁷ Importantly, Special Rapporteur Nowak highlighted a fourth common feature between torture and domestic violence—powerlessness, whereby victims are in a state of constant fear which eventually allows the perpetrator to establish complete control over them.¹⁸

Setting aside the commonalities between domestic violence and torture and focusing more on consequences, for similar conducts victims have been displaying the same complex posttraumatic stress disorder, irrespective of whether they have been subjected to these practices by a state official or non-state actor.¹⁹ Going one step further, violence by an intimate partner may have worse and more long-lasting psychological effects on the victim when compared to violence inflicted by a distant and unknown state oppressor.²⁰ Thus, if the acts committed by private individuals in the context of domestic violence against women are similar to the ones deployed by state agents when committing torture, and the effects on victims are the same, why should the two phenomena be treated differently?²¹

At this point, it may be interesting to explore other implications that arise from considering domestic violence within the criminal framework for torture. Other than allowing victims to bring cases against the state for reparations, by considering domestic violence as torture women may have stronger claims when filing a complaint or a case before courts.²² Interestingly on this matter, the states of Michigan and California introduced a torture statute and have applied this framework to domestic violence.²³ Notably, under the umbrella of torture, the cumulative pattern typical of domestic violence is grasped. Contrarily, “current domestic violence statutes fail to capture its cumulative horror, instead fracturing the patterns of domestic violence into constituent, de minimis parts”.²⁴ This is of great relevance, as many of the offences typical of domestic violence—if taken separately—may remain legal or be classified as simple misdemeanours, thus influencing sentencing, rules of evidence²⁵ and bail considerations.²⁶ Moreover, labelling domestic violence as torture would permit to move beyond the infliction of physical suffering, encompassing the psychological pain and emotional violence to which victims of these horrendous practices are exposed and that oftentimes elude scrutiny.

Aside from these considerations, labelling domestic violence as torture has also other important implications for the victims. Applying the protective framework of torture allows to bring domestic violence under public scrutiny.²⁷ This is of utmost importance, as for many years, the dichotomy public/private sphere has been casting a shadow on these episodes of private violence.²⁸ Historically, human rights treaties and bodies have addressed only issues taking place in the public space meaning that the world of women, mostly perceived as related to domestic and private family life, has not been considered within the human rights discourse.²⁹ Nowadays, this division between public and private is no longer acceptable³⁰ and in fact, many UN Special Procedures and Committees, among which the CAT started addressing domestic violence in their reports and recommendations.³¹

Furthermore, by labelling domestic violence against women as torture, the gravity and seriousness of the offences is emphasised.³² The label ‘torture’ carries a specific stigma and “helps undoing the discriminatory victim-blaming narrative”.³³ By labelling domestic violence as torture, victims would no longer be blamed nor depicted as “weak and pathetic or masochistic and fickle because the public recognises that techniques of torture can control the mind and warp the will of even the most stoic soldiers”.³⁴ Moreover, labelling domestic violence as torture would allow to avoid using words and expressions as domestic or intimate violence that are highly problematic. Indeed, the domestic and the intimate are usually safe spaces, representing “a benign realm or a haven from stress and danger”.³⁵ Hence, terms such as intimate partner violence underline inherent contradictions where in a space that should protect and be the symbol of love, violence against women is perpetrated. These expressions “put up a barrier to recognising that, in certain contexts, violence perpetrated in the private arena is, in reality, familial or relational torture on a par with state actor torture”.³⁶

Importantly, it should be noted that not all the cases of domestic violence may be assimilated to torture. Drawing a line between those instances where such violence can amount to torture and those where this parallel is not suitable, is unclear. Possible ways of distinguishing may be the degree of seriousness of the violence or even the persistence over time. These two requirements together with gender, age and the state of health of the victim among others have been used by the European Court of Human Rights (ECtHR) to argue that domestic violence amounted to ill-treatment under Article 3 of the European Convention on Human Rights (ECHR).³⁷ Now, in the case of domestic violence as torture, the criteria could suitably be the same (seriousness, persistence over time, gender, age, state of health, etc.) but the threshold would arguably be higher. However, whilst this work acknowledges that not every single case of domestic violence can nor should be understood within the torture legal framework, developing precise criteria or thresholds to understand how to differentiate between cases of domestic violence is beyond the scope of the analysis.

III. UNCAT: A Sui Generis Human Rights Treaty and the Discrete Crime of Torture

Having briefly sketched out some similarities between domestic violence against women and torture, the analysis now looks at highlighting the specific nature of UNCAT as a human rights treaty, differentiating between the discrete crime and the prohibition of torture imposed on states. It is worth stressing the importance of keeping the discrete crime and the prohibition of torture separate since the obligations arising for states are entirely different. Under most human rights treaties, the prohibition of torture is phrased in absolute terms, simply requiring that no one shall be subjected to torture. Examples are Art. 7 of the ICCPR, Art. 3 of the ECHR, Art. 5 in the African Charter on Human and Peoples Rights and Art. 7 of the Universal Islamic Declaration of Human Rights.³⁸ Additionally various treaty bodies such as the HRC have been explicit in recognising the application of the prohibition of torture to acts committed in the private sphere.³⁹

Directly related to this horizontal application of human rights is the state’s duty to protect, meaning that the state needs to act with due diligence to prevent and put an end to private violence in as much as respecting human rights in itself. However, when looking at the duty to protect in relation to private violations of the absolute prohibition of torture, courts and tribunals have assessed a whole set of positive obligations that states need to undertake such as the duty to implement legislative measures, the duty to investigate and many others.⁴⁰ Importantly, when a breach of these positive obligations is found, the state is not responsible for the violation of the substantive limb of the right. Moreover, when dealing with the state’s duty to protect in relation to violations of the prohibition on torture, courts and tribunals have not drawn a clear line between conducts that amount to torture and those that instead qualify as cruel, inhuman or degrading treatment. The main underlying reason to avoid exploring this distinction is that there is no difference concerning the obligations for states under the duty to protect such right. Once a violation of the right is found, the state has the same positive obligations irrespective of the qualification of the acts as torture or cruel, inhuman or degrading treatment. Needless to say, that when there are violations of the positive obligations to protect the right, the state will have to provide reparations, just as when there is a substantial violation of the right. The only difference may be in terms of the amount of reparations to be provided.

Therefore, if under most human rights treaties the prohibition of torture is unconditional, absolute and applicable also in the private sphere, the situation is different under the only treaty at the international level specifically designed to tackle torture, the UNCAT of 1984. First and foremost, UNCAT shall be considered as a human rights treaty sui generis as it contains the definition of the discrete crime of torture and provides for many intrusive obligations in relation to the criminalisation of torture both at the international and domestic level.⁴¹ For instance, the obligation for state parties to criminalise domestically all acts of torture as enshrined in Art. 4 or Art. 8 dealing with extradition clearly demonstrate the criminal aspects of the Convention.⁴²

Moreover, if it was not relevant under other human rights treaties, when it comes to the UNCAT, it is fundamental to distinguish conducts that amount to torture from those that qualify as inhuman, cruel or degrading treatment. This is an important point to keep in mind if the ultimate objective is to achieve the most comprehensive protection for victims. Starting from Art. 2 requiring states to adopt legislative, administrative, and judicial measures domestically, most of the obligations only apply in relation to torture. Similarly, Art. 4 only requires states to domestically criminalise torture, while the provision is silent concerning cruel, inhuman or degrading treatment. Consequently, it is clear that if under human rights treaties the classification between torture and inhuman, cruel and degrading treatment does not alter states’ obligations, this distinction has broad and important ramifications under UNCAT.⁴³ Keeping this in mind, the analysis now verts on torture as a discrete crime and the related obligations for states under UNCAT, excluding the criminalisation of torture as an underlying act for war crimes or crimes against humanity from the discussion.

Considering the discrete crime of torture, as already mentioned, the definition under Art. 1 of UNCAT is unsurprisingly more detailed compared to any other provision in human rights treaties. Importantly, other than the elements analysed above, a conduct qualifies as torture, if the “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”.⁴⁴ Therefore, if the state is found to commit, consent, instigate or acquiesce certain acts through its agents, these could be classified as torture. The role reserved to the state in committing, consenting and instigating torture through its agents is quite clear and characterised by an active involvement in the conducts. This active involvement of state officials reflected in Art. 1 represents the preference of certain delegations to limit UNCAT to situations that could be easily labelled as official or state-sponsored torture.⁴⁵ However, considering the discrete crime of torture as only applying to state-sponsored torture would be reductive. In fact, when one considers UNCAT, the matter “is not IF the violence by non-state actors is torture or ill-treatment but rather WHEN”.⁴⁶ Indeed, despite mentioning consent and instigation, Art. 1 of UNCAT also refers to acquiescence. Grasping the exact meaning of acquiescence for the purpose of Art. 1 is fundamental as it permits for an expansive application of the Convention to cases where there is a less direct involvement of the state machinery.⁴⁷ In this case, the notion of acquiescence represents a possible path for victims of domestic violence to benefit from protection afforded to victims in relation to the discrete crime of torture.

IV. Acquiescing Torture: Finding a Suitable Definition

1. Acquiescence under the UN Convention against Torture

Acquiescence was inserted in Art. 1 of UNCAT as a compromise notion to bridge the positions of those states and delegations wanting a complete and absolute prohibition of torture as contained in other human rights treaties and those that aimed at regulating and prohibiting only official or state-sponsored torture.⁴⁸ This concept was introduced under the guidance of the United States during the preparatory works to stress the duty of public officials to prevent acts of torture.⁴⁹ What is clear is that the notion of acquiescence made its appearance in the torture protective framework as a synonym for failure to prevent.⁵⁰ Despite being introduced in the torture definition in the 1980s, nowadays the meaning of acquiescence is still not entirely clear.⁵¹

In order to understand what is meant by acquiescence in the context of the discrete crime of torture, the interpretation given by the CAT shall be the starting point. According to the Committee, in order to qualify as acquiescence there must be actual or constructive knowledge of the torturous behaviour on the side of state authorities.⁵² Moreover, in its General Comment No. 2, the Committee attached the notion of acquiescence to that of due diligence claiming that when state authorities know or have reasonable grounds to believe that torture is being committed and fail to exercise due diligence by not preventing, punishing and prosecuting private behaviours, the state would be consenting or acquiescing to these acts of torture or ill treatment.⁵³ Consequently, for the Committee, the notion of due diligence and acquiescence are closely linked and once the knowledge of torturous acts is established and the state failed to act according to due diligence, acquiescence flows as a logical consequence.

This link between due diligence and acquiescence can also be retrieved from the case of Hajrizi Dzemajl before the CAT. In this precise instance, the Committee found that the Yugoslav police acquiesced private acts of torture and ill-treatment because knowing the risk that these individuals were facing, police officers did not take any preventive or protective measures and additionally failed to properly investigate the acts. This case stands out compared to many other decisions by the Committee where either the notion of acquiescence was not analysed, or it was simply mentioned how it differs from mere inaction given that it requires a purposeful refusal to act.⁵⁴ Importantly, concerning the link between acquiescence under UNCAT and the due diligence framework typical of other human rights’ treaties, the Committee was not exhaustive in detailing the relationship between these two concepts, and so it remains to be seen whether there is a substantive difference among the two notions.⁵⁵ Moreover, the relationship between failure to prevent and acquiescence remains quite blurred. Indeed, despite being considered as synonyms, it appears that preventive measures taken prior to the violations are not considered by the Committee within the notion of acquiescence as provided for in Art. 1 of UNCAT, only adding to the confusion.⁵⁶

Furthermore, reports by UN Special Rapporteurs on torture Nowak, Méndez and more recently Melzer resorted to the notion of due diligence to assess the manners in which states might acquiesce private acts against both women and the LGBTQIA+ community, failing to live up to their international obligations.⁵⁷ In order to attribute torture to the state through the notion of acquiescence, for the Committee the risk and knowledge must be specific to the individual(s) in question, meaning that a general context of state tolerance or passivity would not be enough.⁵⁸ Therefore, mere inability to act or a general pattern of violence would not qualify as acquiescence under UNCAT according to the Committee. Similarly, the absence of a general pattern of human rights violations would not automatically entail that there is no specific and personal risk for one individual.⁵⁹

2. Acquiescence and Due Diligence under Human Rights Law

Given the proximity put forward by the Committee between due diligence obligations and acquiescence, it is worth discussing how courts, tribunals and UN Special Procedures have interpreted this concept when dealing with human rights violations. Human rights courts and tribunals have upheld a similar approach to that of the Committee. The Inter-American Court of Human Rights (IACtHR) for instance in the case Lopez Soto v Venezuela claimed that a general context of state inaction is not enough for the Court to establish state responsibility through acquiescence; what is needed instead is awareness and knowledge linked to the particular case to examine.⁶⁰ In this case, the failure to react to the specific complaint made to the police was a determinant factor to establish the acquiescence of the Venezuelan government. However, in a few instances, the Inter-American Court looked into the general context and the specific vulnerability of certain individuals or social groups to determine acquiescence by the state.⁶¹ An important example is the Pueblo Bello case. In this judgement, the Court claimed that the specific knowledge of the attack was not necessary and the general knowledge of the danger for the inhabitants of the region was sufficient to trigger state’s positive obligations to prevent.⁶²

Moving to the jurisprudence of the European Court of Human Rights, the ‘Osman test’ has become the benchmark to assess state responsibility for failure to prevent private violations, particularly in relation to the right to life.⁶³ Despite being framed mostly in connection to the right to life, the European jurisprudence was similarly applied also concerning the prohibition of torture. Overall, the Osman test requires that the state is aware or has knowledge of a real and immediate risk for the individual or victims in question and fails to take appropriate preventive measures. Some criticism in relation to this test arises in situations of structural risk, as according to the Osman test, the general context is not a factor to consider when establishing state responsibility.⁶⁴ This inadequacy to situations where there is some form of structural risk proves to be extremely detrimental for cases of domestic violence against women, as oftentimes such violence occurs in a climate of widespread tolerance or inaction by the authorities.⁶⁵ Even in Opuz v Turkey, the leading case concerning domestic violence, when looking at Art. 3 and the prohibition of torture, a general context was not sufficient for the Court to find that Turkey failed in its protection of the Turkish woman and her mother from domestic violence by her partner.⁶⁶ Cases following Opuz have been recognising more and more the peculiar features of domestic violence, yet the risk must still be real, imminent and specific to the victim.⁶⁷ In a nutshell, for the European and Inter-American human rights courts the mainstream approach has been to require a specific prior knowledge of domestic violence on the side of state authorities and a failure to prevent this violence. Only by satisfying these two elements can acquiescence be established.

Aside from a more expansive approach exceptionally put forward by the IACtHR in the Pueblo Bello case, a general context of tolerance or inaction by state authorities instead appears sufficient to establish acquiescence according to some UN Special Procedures. In this case, acquiescence could be proved if the state is aware of a general climate of violations and fails to respond, depending on the prolongation and seriousness of this general context.⁶⁸ Some criteria that have been put forward as delineating situations where acquiescence by state authorities could be easily established are laws exempting marital rape, defence of honour, sexual mutilations and other tribal traditional practices or a pattern or non-prosecution of domestic violence.⁶⁹ These abovementioned scenarios all point to the relevance of the general context for the establishment of state acquiescence, and could allow women that have not reported their incidents to the police, making state authorities aware of the specific risk they are facing, to still have a case against the state, enormously opening their possibilities to get justice and redress.⁷⁰ Moreover, when regular practices of female mutilation or honour killings are still in place, the lack of state interference could be interpreted as passive acceptance of these behaviours, ultimately proving acquiescence.

Overall, it appears that also when it comes to human rights, acquiescence has been interpreted as a failure to act in relation to due diligence. Interpretations of acquiescence have been varying concerning the roles of the general context and the specific and personalised risk for the victim. A few Special Procedures have up until now provided a more expansive interpretation of acquiescence, looking into whether state authorities were aware of a general context of abuses and risk, without putting the burden of demonstrating an immediate and personalised risk on the victim. On a different note, regional human rights courts have generally interpreted the notion of acquiescence in a stricter manner where the general context matters less and what has to be demonstrated is the actual or constructive knowledge of state authorities vis-à-vis a personal and individual risk for the victim in question. Acquiescence was established in most cases involving some exchange or complaint with the police or other state authorities.⁷¹ Importantly, the Committee has been interpreting acquiescence in line with the overall approach of human rights courts and tribunals—requiring a personalised and specific risk for the victim and a failure of due diligence by the state organs and/or officials. Moreover, all the positive obligations inserted in the UNCAT’s Articles for states to prevent, punish, investigate and remedy acts of torture perfectly align with the due diligence framework as it is the case also with the Preamble of the Convention.⁷² Ultimately, while due diligence seems a good framework to interpret acquiescence, the exact boundaries of the concept in relation to due diligence, a general context or failure to prevent are still unclear, turning acquiescence into a powerful yet mysterious notion with unexploited potential.

All in all, a glimpse of hope remains that the Committee will start considering the relevance of the general context as some UN Special Procedures are already doing, so to enhance even further the protective framework for women victims of domestic abuses. In doing so, a dangerous environment conducive to these violations would be sufficient, without victims having to prove a personalised and specific risk. Whether this combined approach to acquiescence between the Committee and UN Special Procedures will become the mainstream understanding of acquiescence when looking at the discrete crime of torture and possibly even beyond is still to be seen.

V. Domestic Violence as Torture—Some Unaccounted yet Important Implications

At this point of the analysis, having highlighted how acquiescence could represent a powerful avenue to bring private violations into the definition of the discrete crime of torture, it is time to discuss some of the implications arising for victims both in relation to state and individual criminal responsibility. Regarding state responsibility, the implications of considering domestic violence within the criminal framework for torture are straightforward. Acquiescence in the case of Art. 1 of UNCAT represents a definitional element of the primary rule rather than a specific rule of attribution for state responsibility.⁷³ Thus, the conduct of private individuals committing domestic violence—if acquiescence can be established—becomes the act of the state per se, meaning that stakes are higher compared to when the state failed in its positive obligations to prevent private violations. For instance, torture as a crime carries a specific stigma and courts and tribunals may be more cautious in attributing the conduct to the state. However, despite this possible reputational issue and the greater perceived seriousness attached to the crime of torture,⁷⁴ the consequences of finding state responsibility through the notion of acquiescence would be exactly the same as for other human rights treaties, i.e. reparations. Therefore, whether state responsibility is triggered by the conduct being the action of the state per se, or whether the state violated its positive obligations to prevent private violations makes no difference concerning the consequences. This equality of consequences could indicate the inadequacy of the regime for state responsibility in differentiating among situations.⁷⁵ State responsibility is a unified system whereby whether the state failed in its positive obligations or instead the state itself committed the wrongful act does not affect the consequences. At this point, one could question whether the proposal of Roberto Ago to draw a distinction between wrongful acts and crimes when it comes to state responsibility should have been retained in order to make more accurate assessments of different situations.⁷⁶

Moving now to individual criminal responsibility, some questions arise in relation to the responsibility of the state officials acquiescing instances of domestic violence. The state agent’s criminal responsibility would inevitably arise if one considers the domestic criminalisation for acts of torture through various modes of liability required under Art. 4 of UNCAT. Therefore, if the domestic court decides to interpret a specific case of domestic violence within the criminal framework for torture, the official acquiescing this conduct would be criminally responsible for torture. If one considers that the involvement of the state agents corresponds to acquiescence, in accordance with the mainstream approach of the Committee and other human rights courts and tribunals, when state officials are informed of the possible risk and do not act, the implications are enormous. For instance, if a woman complains of the abuses suffered to state agents and they do not intervene, could the agents be found responsible for acquiescing torture before a domestic court? As a result, could a state officer considered to acquiesce torture in a case of domestic violence be arrested in every UNCAT state party? Could the agent be extradited? In extreme cases of domestic violence, these possible criminal implications may work as an incentive for state agents not to dismiss the victim’s claims and actually better address the possible risks for the woman in question.

Even if such an interpretation could provide incentives to better look and assess cases of domestic violence, some questions at the domestic level remain unanswered. For instance, under what modes of criminal responsibility could the state agent be found responsible for torture? Further, what would be the corresponding mens rea required? These questions get even more complicated when considering the ascription of criminal responsibility for state agents in the context of general context and structural risk. Notably, while in the previous section it has been mentioned that hopefully the Committee would start considering acquiescence in situations where there is a general context or pattern of violence, could it be that simply because the authorities are aware of the structural risk faced by women, every serious case of domestic violence would entail their criminal responsibility for torture? This would unrealistically put a burden on state agents to know what happens within households, with strong implications for other rights such as the right to privacy. Moreover, assuming that a state agent could be criminally responsible in situations of structural risk without any closer link to the crime would be in violation of many, if not every, domestic criminal principles.

A similar set of questions originates vis-à-vis the private individual directly committing domestic violence, if considered as torture. Could the individual carrying out violence against women be charged with torture in the first place? Theoretically, the answer should be yes. However, compared to the criminal responsibility of the state agents acquiescing the conducts, establishing criminal responsibility for private individual is surprisingly more complex. In fact, the individual committing this violence would not know whether the requirement of the state’s acquiescence for the crime of torture will be satisfied or not. Moreover, if one considers the situation of a woman complaining of the continuous abuses suffered to state agents and these do not intervene, could the violence committed before the complaint be categorised as torture since the element of acquiescence is now satisfied? How to reconcile the criminal responsibility of the private perpetrator with the ex-post facto state acquiescence? Can the responsibility of the direct perpetrator be conditioned on something that happens after the commission of the crime and upon which the individual has no control? Does the individual’s knowledge of this ex-post state acquiescence matter at all or is it sufficient that the acts are committed with the required mental element? Would it be more appropriate to only qualify the acts after the complaint as torture? Moreover, as for the state agent, would considering domestic violence as torture mean that a violent husband could be arrested when travelling to a UNCAT state party? What would the implications for a regarding extradition under UNCAT?

Just to complicate the matter even further, in the case of the private perpetrator, the general context could in no way be enough to find the responsibility of the individual committing these abuses. Assuming that if there is a general context or pattern of violence against women and that state authorities are aware of it, every instance of private domestic violence could amount to torture and the perpetrator should know this is simply unworkable from a criminal point of view. Importantly, both concerning the criminal responsibility for the state agent acquiescing these practices and the direct perpetrator, it should be noted that not every case of domestic violence may be considered as torture. As previously mentioned, classifying what cases might amount to torture and which ones do not is a very complex issue, beyond this analysis. However, understanding this distinction is fundamental or the possible ramifications of these implications for criminal responsibility would be unrealistic, absurd and completely impractical.

VI. Conclusions

The present work analysed and put forward some of the major questions and issues that emerge when applying the torture criminal framework contained in UNCAT to certain instances of domestic violence, being these characterised by physical or psychological violence. Notwithstanding the similarities between the two phenomena, the level of seriousness or consistency over time required to allow for the consideration of domestic violence as torture is not clear. Moreover, whether other types of private violence could be envisioned within the torture criminal framework remains in need of assessment. In fact, as shown in the present work, there are commonalities between domestic violence and torture as well as public statements that justify such an interpretation. However, nothing excludes that a similar reasoning could apply to other instances of private violence.

Initially, the analysis clearly differentiates the framework for the prohibition of torture under human rights law from the discrete crime, discussing the peculiar nature of UNCAT as a sui generis human rights treaty. Then, as a first step, the work considers how state responsibility can be considered both for the prohibition of torture as a state obligation and the discrete crime. In doing so, the main difference is that when domestic violence is understood as a violation of the prohibition of torture, the state would be responsible for the duty to protect this right also in relation to the acts of private parties. In this case, however the substantive violation of the prohibition of torture would not be attributed to the state. Contrarily, when looking at domestic violence through the lens of the discrete crime of torture under UNCAT, thanks to the notion of acquiescence, the conduct amounting to torture would become the conduct of the state. Crucially, irrespective of whether state responsibility is triggered by a failure in positive obligations or the conduct per se, under the international regime of state responsibility the consequences are the same. Questions on whether this is a gap in the system and a better way forward concerning state responsibility would have been to keep different layers of consequences instead of a unified system remain open. Ultimately, for what regards the regime of state responsibility there is no additional consequence for victims arising from considering domestic violence as included in the definition of the discrete crime of torture. To reach this conclusion, the work elaborated upon the notion of acquiescence contained in UNCAT as it is precisely thanks to this concept that the state and its agents could come into the picture for cases of domestic violence. When looking at acquiescence, the approach taken so far by most human rights courts and tribunals and shared by the CAT requires that authorities are aware of a real, specific and personalised risk for the victim and fail to act.

Second, aside from attributing the conduct to the state, the notion of acquiescence has serious and important implications for the individual criminal responsibility of state authorities involved and for the private perpetrator of domestic violence. If on the one hand, thanks to the notion of acquiescence, these instances of private violence enter the torture criminal framework; on the other hand, the practicalities of such an approach are complex and full of obstacles. The main issues arise concerning the temporal dimension of the crime and the mental element required on the side of both the state agent and the individual in order to charge them directly or through other modes of criminal liability for torture at the domestic level. Questions also originate in relation to other obligations under UNCAT such as the possible arrest or extradition of individuals convicted for torture. Notwithstanding these practical concerns in the application of the definition of the discrete crime of torture to domestic violence, the root cause of this complex implementation resides in the sui generis nature of UNCAT. Albeit Special Rapporteurs rightly mention domestic violence as torture in their statements, a word of caution is needed when dealing with the discrete crime of torture. All of the doubts and issues discussed throughout the work point to the fact that while UNCAT was drafted with serious criminal obligations having repercussions at the domestic level for individuals, the practical effects of such an implementation were hardly taken into account.

To conclude, underlying the whole analysis is the idea that for too long it has been the case that “when a woman is tortured by her husband in her home, humanity [was] not violated”.⁷⁷ It is time to challenge this understanding and the torture criminal framework and specifically acquiescence represent a powerful tool to conceptualise domestic violence as torture and finally provide the adequate and much-needed redress to victims. Through acquiescence both the individual and state responsibility regimes are brought into the picture, granting victims important avenues to seek redress and justice compared to other human rights treaties. Yet, if UNCAT has the potential to become a powerful tool for victims of domestic violence, up to this very moment the sui generis nature of the treaty poses the major impediment to implementation.