抵制家庭暴力

IF 1.3 Q1 LAW
Catherine Briddick
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引用次数: 0

摘要

本文分析了国际难民法和人权法中有关家庭暴力的判例。文章指出了这两部法律的不足之处,并提出了独到的见解。文章借鉴了米歇尔-马登-登普西(Michelle Madden Dempsey)的研究成果,重点关注 "强烈 "意义上的家庭暴力:维持或延续父权制的暴力。关于妇女要求国际保护以免遭家庭暴力的裁决产生了一些相互矛盾的判例法,这些判例法与《难民公约》的目标和宗旨也是相互矛盾的。决策者划分了限制性过强的社会群体,忽视、认定或归咎于一系列政治观点。对 "私人 "动机的过度关注也掩盖了迫害与《公约》理由之间的联系。同样,欧洲人权法院尚未解决的问题导致《欧洲人权公约》禁止歧视的规定在涉及家庭暴力的案件中适用不一致,最近甚至完全不适用。这些缺陷可追溯到对家庭暴力的性质缺乏概念和法律上的清晰认识。文章提出了一种对策,将这种暴力理解为政治性和歧视性的。文章最后指出,正确理解家庭暴力的受害者,他们遭受了非法歧视,是 "妇女 "这一 "简单 "特殊社会群体的成员。文章还回应了文献中对政治舆论场采取性别敏感方法的呼吁,提供了一种分析方法,承认妇女对暴力的抵制,包括在没有表达性别平等承诺的情况下。总之,文章有助于加深对家庭暴力的理解,并以此为基础就歧视、迫害和《公约》理由做出原则性决策。
本文章由计算机程序翻译,如有差异,请以英文原文为准。
Resisting Domestic Violence
This article analyses the jurisprudence on domestic violence in international refugee and human rights law. It identifies and offers an original response to shortcomings in both bodies of law. Drawing on the work of Michelle Madden Dempsey, its focus is on domestic violence in its ‘strong’ sense: violence that sustains or perpetuates patriarchy. Decisions on women’s claims for international protection from domestic violence have generated strands of case law which contradict each other, as well as the Refugee Convention’s object and purpose. Decision makers have delineated overly restrictive social groups and ignored, identified, or imputed a range of political opinions. A disproportionate focus on ‘private’ motives has also obscured the nexus between persecution and the Convention ground(s). Similarly, issues left unresolved by the European Court of Human Rights have resulted in the European Convention on Human Rights’ prohibition of discrimination being applied inconsistently, and recently, not at all, in cases involving domestic violence. These deficiencies are traced to a lack of conceptual and legal clarity as to the nature of domestic violence. A response is offered that understands such violence as political and discriminatory. The article concludes by arguing that victims of domestic violence, properly understood, have experienced unlawful discrimination and are members of the ‘simple’ particular social group of ‘women’. It also answers calls within the literature for gender-sensitive approaches to the political opinion ground, offering an analysis that recognizes women’s resistance to violence, including in cases where commitments to gender equality are not expressed. Overall, the article contributes an improved understanding of domestic violence that could be relied on to ground principled decision making on discrimination, persecution, and the Convention grounds.
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来源期刊
CiteScore
1.40
自引率
0.00%
发文量
28
期刊介绍: The journal aims to stimulate research and thinking on the protection of refugees and other displaced persons in international law, taking account of the broadest range of State and international organization practice. In addition, it serves as an essential tool for all engaged in the protection of refugees and other displaced persons and finding solutions to their problems. It provides key information and commentary on today"s critical issues, including the causes of refugee and related movements, internal displacement, the particular situation of women and refugee children, the human rights and humanitarian dimensions of displacement and the displaced, restrictive policies, asylum.
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