Analysis of the doctrinal and anthropological conditions of the Istanbul Convention and selected GREVIO documents

Main theses of the analysis:

1. The Istanbul Convention is a document that approaches the issues of domestic violence and violence against women in a highly ideological manner. This can be seen both in the text of the Convention itself, as well as in the documents issued by the body appointed for the purpose of interpreting its provisions and monitoring its implementation (GREVIO);

2. The Convention is the first to introduce a binding definition of the term gender detached from the biological dimension of a person's sex. This corresponds to the radical demands of representatives of extreme feminism;

3. GREVIO develops the paradigm of gender-based violence introduced by the Convention, in particular by highlighting the supposedly crucial importance of gender stereotypes allegedly underlying gender-based violence;

4. The Committee refers to the terms of the gender theory, perceiving the Istanbul Convention as a tool to transform existing social structures, which are considered 'patriarchal'. At the same time, GREVIO ignores or marginalises the actual sources of violence against women. Eradication of violence entails the elimination of culturally established patterns of male and female behaviour;

5. What is particularly worrying is that, according to GREVIO, the correct implementation of the provisions of the Convention in national legal systems cannot be achieved unless the principles of gender ideology form its basis, while a 'gender neutral' approach to violence, somehow in advance (i.e. on the basis of strictly ideological premises) is considered flawed and ineffective;

6. At the same time, GREVIO acknowledges that the Convention is the first document of its kind that addresses the phenomenon of 'gender-motivated violence' in a comprehensive and binding manner.

1. Introductory remarks

The purpose of this paper is to provide a concise characterisation of the doctrinal and anthropological conditions which have shaped the provisions of the Council of Europe Convention on preventing and combating violence against women and domestic violence, opened for signature in Istanbul on 11 May 2011 (hereinafter referred to as Istanbul Convention or the Convention)^[1], as well as the analysis of selected documents drawn up by the group of experts on combating violence against women and domestic violence established on the Convention's basis (GREVIO). Grevio's main task is to monitor the implementation of the Convention by the signatory states (Article 66(1) of the Convention). In addition, GREVIO has the power to make general recommendations on the implementation of the Istanbul Convention (Article 69 of the Convention). All documents issued by this committee are non-binding, i.e. they are included in the sphere of the so-called soft-law. Nevertheless, they have political significance, as they can be used as a tool to pressure the signatory states of the Convention to adopt certain statutory provisions. Moreover, it can be assumed that in the near future the powers of GREVIO will be extended to include the power to examine individual cases, as it is the case with certain bodies operating within the UN human rights system, such as, in particular, the Committee on the Elimination of Discrimination against Women (CEDAW)^[2]. The analysis made clearly demonstrates that the Istanbul Convention is a document based on ideological assumptions and cannot be applied in isolation to the vision of reality adopted by the authors of the Convention and the members of GREVIO.

For these reasons, the Istanbul Convention is a document that has been highly controversial from the very beginning, both in Poland and in other European countries. Even before its ratification, the Ordo Iuris Institute prepared a report which stated that the Convention contradicts the Polish Constitution and raised a number of allegations concerning the ideological nature of a number of its provisions and erroneous assumptions that were the supposed cause of domestic violence^[3]. An even greater opposition to the ideologised provisions of the Convention can be seen in other Central European countries. By Judgment No 13 of 27 July 2018 The Constitutional Court of the Republic of Bulgaria has declared that the Convention contradicts the Constitution of Bulgaria due to the expressions used in Article 3(c), Article 12(1) and Article 14(1) of the Convention, namely 'socially structured gender roles', 'stereotypical gender roles', 'socio-cultural gender' (gender) as objective elements of the concept of sex, in particular in the context of the risk of legal sanctioning of the concept of 'third gender' and the creation of the possibility for same-sex marriages. On 25 February 2020, National Council of the Slovak Republic (the Slovak Parliament) did not give its consent to the ratification of the Convention during an extraordinary session. The Convention was rejected by a vast majority, as 96 out of 150 Members of the National Council voted against its ratification. The Hungarian Parliament also adopted a declaration opposing the Convention.

2. Doctrinal and anthropological conditions of gender ideology

2.1. Sources of gender ideology

The assumptions of the theory of gender are based on classical Marxist concepts, primarily at the historiosophical level. Here, we should indicate the concept of historical materialism and dialectics, the latter of which assumes the absence of permanent and unchanging phenomena in which the disappearance of some forms is combined with the constant emergence of new ones, which is the result of a kind of abrasion of opposing tendencies^[4]. Transferring this assumption to the reflection on historical processes, Karl Marx and Frederick Engels concluded that history is a sequence of events determined by the conflict between the oppressed and the oppressors, the property of which is the progressive emancipation of the oppressed, which constitutes the essence of progress. In other words, according to the creators of Marxism, conflict is inscribed in the very nature of historical phenomena and determines the development of social life^[5]. Such a concept is based on the belief that social relations are based on antagonisms, not on a specific order. Therefore, Marxism does not speak of the harmonious and evolutionary development of society with respect for the institutions and traditions that have been formed over the centuries. To quote Leszek Kołakowski, in the mind of Marx himself, there was 'an interpretation of the revolution as an act which is not rape of history, but a fulfilment of its inherent tendency' [6]^[6]. According to the Marxists, all the existing ethical, moral, legal and religious norms - referred to as the 'superstructure' - serve to petrify existing socio-economic relations, known in Marxist literature as the 'base'^[7]. In this way, the duty (normative) and cultural sphere is objectified. The Marxists reduce this sphere to a conglomerate of mechanisms that safeguard certain interests. At the same time, a particular historiosophical vision gave Marx's theories a semblance of scientificity, which enabled the rejection of socialisms, considered utopian, and the presentation of his own concept as the only one that is right and likely to succeed^[8].

Although, in classical Marxism, the main axis of social conflict was the dispute between the 'bourgeoisie' and the combined forces of the 'proletariat' and the 'working masses', the 'oppressive' role of the family, which was to be based on patriarchal patterns, was already pointed out^[9]. According to Marx and Engels, the family brings together similar antagonisms and conflicts of interest that can be observed throughout society. The social roles of women and men include 'division of labour' and thus take on a conventional character, becoming the 'superstructure' justifying male supremacy and, consequently, men's privileged social position. Only in the long term this privileged position is determined by the ownership of the 'means of production', ownership relations and the economic exploitation by the possessing classes. It should be added that, in Marx's work, it is the 'division of labour' that is the primary source of all social conflicts, because it generates inequality and private property and contributes to the creation of the conflict between the individual and collective interests^[10].

Marxist theses, supplemented by arguments deceitfully presented in a slightly more sublime, philosophical, sociological and psychoanalytic manner, were upheld by representatives of the Frankfurt School. They undertook extensive studies on the family, taking into account, first of all, its educational function – there they found the greatest danger. Research aimed at revealing the links between the 'authoritarian' educational model and Fascism and Nazism were undertaken in the inter-war period, resulting in the publication of the study entitled Study über Autorität und Familie, whose main authors were Max Horkheimer and Erich Fromm^[11].

In the works of the Frankfurt School representatives, the links between systematic participation in formalised forms of religious worship and 'ethnocentrism'^[12] were emphasised. In other words, 'ethnocentric' attitudes are caused by such factors as a religious family, especially one in which both the father and the mother are of the same religion^[13]. As the Frankfurt School representatives argued, the hierarchical relationship between a parent and a child affects the child's future human interactions, religion, as well as philosophical, social and political beliefs, Moreover, it 'may develop into a power-oriented and exploitative attitude towards a sexual partner'^[14]. They continued by stating: 'Integral dramatisation extends from the parent-child dichotomy to the dichotomy of gender roles and moral values, as well as to the dichotomous treatment of social relationships, manifested especially in the creation of stereotypes and divisions within and outside [social] groups. Attachment to convention, austerity, repressive denial and the resulting breakthrough of one's own weakness, fear and dependence are just other aspects of the same fundamental personality pattern that can be observed in personal life, as well as in religious and social attitudes'^[15].

In the views of the Frankfurt School, we can see not only a clear continuation of the thoughts of Marx and Engels, but also its development in terms of the 'negative' influence of the family on the process of forming socio-political beliefs of next generations. The family is no longer just a place of oppression, conditioned by the economic superiority of men. It becomes a source of 'stereotypes' by confirming the dualistic division of gender roles (in this context, instead of gender, the term sex was still used), which is intended to influence the formation of 'authoritarian' and 'ethnocentric' attitudes (or related anti-Semitic and fascist views) in young people. The religious involvement of parents only reinforces these tendencies. In the views of the representatives of the Frankfurt School, the family is an obstacle to the full emancipation of man.

The gender theory adopted the perception of the family as a place of oppression from the ideology that forms its basis – i.e. radical feminism, especially from its 'Second- and Third Wave'. The representatives of this intellectual trend focused mostly on issues related to gender, gender roles and their perception. Although Simone de Beauvoir^[16], a prominent representative of the so-called second wave feminism, criticised the description of the social situation of women in terms specific to the Marxist nomenclature ('proletariat' - 'bourgeoisie'), she considered Frederick Engels' views on the origins of the family as a form of progress in addressing the situation of women in society^[17]. Her criticism of Engels concerned mostly the superficiality in his analysis of phenomena, which de Beauvoir considered to be an aftermath of the weakness of the methodological assumptions of historical materialism and of assigning exaggerated importance to ownership relations^[18]. She approved of the passage of the Resolution of the Comintern of 16 November 1942, which pointed out that the destruction of the family was a prerequisite for the success of the revolution and stressed the importance of the depreciation of marriage and access to abortion, as factors purported to improve the social situation of women^[19]. Therefore, Simone de Beauvoir's works show that she upheld the Marxist theses about the family as a place of oppression of women that does not allow them to fully emancipate, or at least participate in public life in some form.

Marxist historical materialism was also at the basis of the diagnosis of the situation of women and the demands of another prominent feminist – Shulamith Firestone, who, following Marx and Engels, pointed to gender duality as a historical foundation and a kind of a standard of class divisions. Claiming that there is a common core of Sigmund Freud's theories and feminism, Firestone wrote that they were 'reaction to the most philistine period in the history of Western civilization, the Victorian era, characterised by family-centredness and thus by its sublime oppression and sexual repression'^[20]. According to Firestone, motherhood and the upbringing of children are the root causes of the oppression that women experience^[21]. In this context, she considered the role of the family, stressing that 'in every society there was some form of biological family and thus there always were varying degrees of oppression towards women and children' (the designation comes from the author)^[22]. At the same time, we can observe pure negationism in Firestone' feminism. Moreover, her revolutionary demands are not accompanied by any deeper reflection on the consequences of change and on the vision of post-revolutionary reality^[23]. As indicated in the subject literature, the gender ideology emerges precisely from these circles of postmodern feminism^[24]. In other words, for radical feminists, it is no longer the relationship of production, but of reproduction that has become the axis of the eternal conflict that has allegedly plagued humanity since the dawn of time.

2.2. Assumptions of the gender ideology

The term gender – translated into Polish in a way that does not fully reflect its essence as 'socio-cultural sex' or 'cultural sex' – first appeared in the works of the American psychologist and sexologist John Money (1921-2006). It is intended to identify a situation in which a person's gender self-identification does not coincide with his or her biological identity^[25]. It has been used mainly in works in the field of psychiatry, psychology and sexology, especially among researchers influenced by the theories of Sigmund Freud^[26].

The feminist philosopher Judith Butler is now considered the most important theorist of the gender ideology. It was Butler who established the term gender by analysing the 'subject of feminism' in her famous book Gender Trouble (published in Polish under the title Uwikłani w płeć. Feminizm i polityka tożsamości, by Wydawnictwo Krytyki Politycznej, a Polish publishing house). According to Butler, '… in hegemonic language, sex appears as a substance, as an entity identical to itself, to use a dictionary of metaphysics here. This sham is obtained thanks to a performative linguistic and/or discursive manipulation which manages to conceal that it is fundamentally impossible to "be" a sex, whether biological or cultural'^[27]. As Butler continues, binary sex-ratio is artificial (conventional)^[28]. The author explains that: 'the distinction between biological and cultural sex taken to its logical extreme indicates a radical discontinuity between bodies with a specific biological sex and the constructed cultural sex. If we assume for the time being that binary biological sex is stable, it does not follow that constructs such as "men" are merely an addition to biologically male bodies or that "women" are interpretations of only female bodies. Besides, even if it seems that biological sexes are undoubtedly characterised by binary due to their morphology and structure (which we will consider later), there is no reason to believe that there are only two cultural sexes'^[29].

By introducing the concept of 'gender performativity', Butler and other supporters of gender ideology take the position that gender is a socio-cultural construct, and biological conditions are only a semblance of reality. Of course, limiting the concept of performativity to the sphere of a person's sex would be erroneous - the whole concept of gender is rather the culmination of a certain process in which a human is (at least seemingly) a fully sovereign being that is able to decide on his/her own ontological status, as well as on other spheres of reality. The best example is the extreme relativisation of morality, which was also an 'obstacle' to human emancipation.

Currently, it is indicated that there are many different identities described within the category of gender - only as an example, one can point to cisgender (the subjects identify with the gender determined at birth), transgender (the subjects do not identify with the gender determined at birth), genderfluid (the subjects identify sequentially with different genders), agender (the subjects do not identify with any gender), bigender (the subjects identify with two genders at the same time), polygender (the subjects identify with many different genders at the same time), gender apathetic (subjects are not interested in the issue of the gender they identify with), demigender (subjects identify partially with a given gender, and partially considered themselves as not gender-defined)^[30].

Certainly, genderism belongs to the broader category of neo-Marxist ideologies. From the philosophical point of view, this ideology is classified as one of the postmodern concepts^[31]. Radical relativism, allowing for self-definition within the concept of gender, which is increasingly replacing the concept of sex , in practice leads to numerous degenerations and actual discrimination against women, the most obvious and publicly visible example of which is forcing women to compete with men identifying as women (sometimes after hormone therapy) in various sports^[32].

3. The ideology of gender in the light of the Istanbul Convention and GREVIO documents

3.1. The concept of gender in public international law

From the very beginning, the main vehicle for changing the language used by international institutions were non-binding acts of international law - declarations and action plans adopted at international conferences organised by the United Nations. The term gender first appeared without much publicity at the Third World Conference on Women's Rights in Nairobi in 1985. In the final document of the Conference, called Forward Looking Strategies^[33], the concept of gender is repeatedly used, although the classic concept of sex is still used in parallel. However, the main theses of this radical document were: the assumption about the structural nature of discrimination against women and the assumption that physiological (biological) differences between women and men should not justify the existence of different roles for men and women. The end of the 1980s was a specific and breakthrough time in modern history - this is probably why the concepts presented by feminist organisations at the Nairobi Conference received little attention and did not gain much publicity. However, a few years later, during the Fourth World Conference on Women's Rights in Beijing (1995), these demands became the subject of numerous controversies and international opposition. Due to such a reaction to the demands, and under pressure from a large group of UN Member States, the President of the Conference made it clear that 'the word gender has been used in its universal, comprehensible and generally acceptable meaning'^[34]. Despite this, in the final Conference document, the term gender was used 233 times^[35]. However, it should be acknowledged that the term 'gender' was supposed to refer to 'a woman' and 'a man', which is its commonly accepted use. The above statement also underlines that 'it was not intended to give a new meaning to this term, which would be different from the commonly accepted one'^[36].

Prior to the ratification of the Istanbul Convention, the only definition of the term gender that was binding on Poland was contained in the Rome Statute of the International Criminal Court^[37]. Article 7 (3) of the Statute states that the term gender refers to the male and female sex while taking into account the social context. This wording 'does not impose any different understanding of the term gender from that indicated above'. In this context, the definition in Article 3(c) of the Istanbul Convention constitutes a significant novelty. The authors of the Convention, in § 43 of the explanatory report, made it clear that the construct gender, as defined in Article 3(c) is not understood as a term which may replace the terms 'woman' and 'man'^[38]. This underlines the need to interpret this concept in the light of the ideological principles referred to in the preamble to the Convention and Article 3(c) thereof. Apart from the Rome Statute of the International Criminal Court, there is no binding and accepted by most states act of international law that would introduce the category of gender into the applicable law. Attempts to introduce it through the back door e.g. into EU policy (strategies adopted by the European Commission for equality between women and men^[39]) are constantly renewed – but they are not based on treaty law, which puts into question the Commission's ability to undertake them.

3.2. The concept of gender in the Istanbul Convention and GREVIO documents

The definition of the term gender in Article 3(c) of the Istanbul Convention fully corresponds to the views expressed by the representatives of extreme feminism, for example by Judith Butler, who was quoted in the previous part of the text. This means that a given gender- socially structured roles, behaviours, activities and attributes that a society considers appropriate for women or men - can be adopted by both a man and a woman, which in principle makes it impossible to unequivocally identify potential beneficiaries of the Convention's provisions. It should be assumed that it protects all the people, who assume socially constructed roles, behaviours, actions and attributes that society considers appropriate for women, regardless of their gender.

GREVIO documents indicate that gender roles are responsible for creating a 'culture' of male domination. The existence of these roles is considered to be the reason for fewer privileges for women and for accepting violence against women^[40]. Referring to the conventional definition of the term gender, GREVIO also emphasises that since gender roles are social constructs, they are not biologically determined^[41]. The Committee stresses that domestic violence does not operate in a vacuum and is embedded in the 'cultural values of society' which are supposedly intended to condition tolerance against violence^[42]. Interestingly, GREVIO completely ignores the fact that there are traditionally well-established cultural patterns that contribute to improving the situation of women, have a positive impact on their sense of security and express public disapproval of violence against women or against the physically vulnerable in general. GREVIO's anthropological-cultural analysis is therefore highly selective and clearly motivated by ideology.

The constant reiteration of the thesis of 'patriarchal society' is repeated in GREVIO documents many times, but is not supported by any attempt at a reliable sociological or historical analysis^[43]. It seems that GREVIO documents are constructed in such a way as to instil in the recipients the conviction that any traditionally conditioned behaviour is an expression of an unspecified patriarchalism. In fact, this makes it difficult to diagnose those traditions, undoubtedly present in certain cultures or communities, which are actually associated with humiliation or violence against women (such as ritual genital mutilation in some African and Middle Eastern communities, sometimes also practised by radical immigrant groups in Europe)^[44]. On the other hand, it is difficult to regard as 'stereotypical' or based on 'patriarchal patterns' manifestations of courtesy towards women that are present, for example, in the Polish culture and customs. GREVIO, however, does not in any way attempt to nuance its statements, and avoids a clear indication of harmful traditions (perhaps fearing accusations of 'racism' and 'stigmatisation' of immigrant groups).

The constant search for the main sources of violence in 'gender stereotypes' is a logical consequence of the Convention's adoption of the concept of gender-based violence. The concept of stereotype is understood in a broad sense, as it covers all culturally established patterns of social behaviour of women and men. The real causes of domestic violence and violence against women are marginalised, or even completely ignored (the role of drugs and the sexualisation of women's image in the media are both marginalised, while the breakdown of family ties and moral decadence are completely ignored), while the dominant narrative in GREVIO documents is the need to combat 'stereotypes', which have not been specified in the Convention. This, of course, creates opportunities for various overinterpretations. For example, GREVIO documents state that the perpetuation of gender stereotypes is a process through which 'society assigns certain attributes, characteristics or roles to women and men'^[45]. According to the documents, apart from education, culture and the influence of the media, the sources of stereotypes include ethnicity, social class and religion^[46].

GREVIO clearly defines the objective to be achieved through the implementation of the Convention - to change the behaviour of men and women, boys and girls, which all too often is currently fuelled by prejudice, gender stereotypes (as already, stated defined very broadly by GREVIO) or biased customs and traditions, which contribute to committing or accepting violence against women.^[47]. According to GREVIO, the factors leading to violence are placed in the context of a family or peer group structure, where general social norms translate into expected or socially acceptable practices, i.e. historical and cultural gender stereotypes that may exist in families or, for example, in peer groups of adolescents supporting antisocial behaviour or physical and sexual aggression^[48]. GREVIO experts point out that eradicating gender stereotypes is crucial in the fight against violence. As they emphasise, a change in 'power dynamics and attitudes' is order to achieve this goal^[49]. The Convention is therefore intended to eradicate the stereotypes not only at an individual, but also at an institutional level, mostly by obliging the parties to the Convention to undertake broadly defined educational, promotional and training activities.

GREVIO documents criticise the gender-neutral approach to domestic violence. The Committee points out that a gender-neutral approach to domestic violence does not recognise it as a social mechanism for keeping women subordinate to men, which goes against the basic principles of the Convention^[50]. This has given rise to GREVIO's accusations against the Italian authorities. GREVIO clearly reminded the authorities that the concept of gender cannot be ignored when implementing the provisions of the Convention through changes to the internal legislation of the signatory states. The evaluation report states that gender perspective must be integrated in the implementation of the Convention and the evaluation of its impact^[51]. Furthermore, GREVIO reminds about the importance of strengthening the efforts of the authorities to promote and strengthen the gender-based understanding of violence against women as a violation of their human rights and as an act, which disproportionately affects them simply because they are women^[52].

GREVIO's experts recognise that the introduction into the Istanbul Convention of the concept of gender , which is also accompanied by the legal definition contained in Article 3(c) thereof, has influenced criticism of the Convention by numerous circles, including 'certain political parties, religious institutions and ultraconservative groups'^[53]. As has been emphasised, this is related to the 'general decline' in women's rights, especially 'reproductive rights'^[54]. By listing the allegations against the Convention, GREVIO pointed out that the term gender is alien to many legal systems and therefore is incompatible with national standards , that the Convention allows the introduction of the concept of 'third sex' or the reference of the institution of marriage to same-sex couples, that it stands in opposition to 'traditional gender roles' (although, it is not clear how to understood them) which are beneficial to families and public life, as well as to the society as a whole, and therefore that the Convention poses a threat to the institutions of the family and society and that it unjustifiably focuses on women^[55].

These allegations have been collectively referred to as 'myths and misunderstandings', stressing that the Convention does not require the introduction of the concept of gender into national legal systems and that the concept is not intended to replace the terms 'women' and 'men'. However, these arguments are at least debatable because, in its documents, GREVIO repeatedly points out the importance of the concept of gender and the perspective of gender for the proper implementation of the Convention, acknowledging this even in the discussed report (see the comments below). It is also clear that the Convention does not require the abandonment of such notions as 'woman' and 'man'. What is important, however, is that these concepts are understood in terms of the gender ideology, and at the same time do not take into consideration the biological conditions. The report's authors point out that the term gender is also intended to emphasise the significance of stereotypes for the phenomenon of violence. It is worth noting, however, that the Convention does not define in any way the concept of 'stereotype', which seems to be crucial for GREVIO. It is vague in nature, which basically does not allow to qualify any established natural or customary cultural pattern as a stereotype. It should also be underlined that by introducing the category of 'reproductive rights' into its reasoning, GREVIO only reinforces the concerns that have been growing around the Convention since its creation. Treating prenatal murder as a 'right' seems even provocative for all those who consider human life to be valuable and worthy of protection from the moment of conception to the moment of natural death.

4. Summary

The analysis of selected documents published by GREVIO points to a highly ideologised approach of this body to violence against women and domestic violence. The Committee develops the paradigm of gender-based violence introduced by the Convention, in particular by highlighting the supposedly crucial importance of gender stereotypes allegedly underlying gender-based violence. The Committee refers to the terms of thegender theory and the broadly understood feminist ideology, perceiving the Istanbul Convention as a tool to transform existing social structures, which are considered 'patriarchal'. At the same time, GREVIO ignores or marginalises the actual sources of violence against women. What is particularly worrying is that, according to GREVIO, the correct implementation of the provisions of the Convention in national legal systems cannot be achieved unless the principles of gender ideology form its basis, while a 'gender neutral' approach to violence, somehow in advance (i.e. on the basis of strictly ideological premises) is considered flawed and ineffective. At the same time, GREVIO acknowledges that the Convention is the first document of its kind that addresses the phenomenon of 'gender-motivated violence' in a comprehensive and binding manner.

Authors:

Attorney-at-law Bartosz Zalewski - the Ordo Iuris Legislative Analysis Centre.

Łukasz Bernaciński - the Ordo Iuris Legislative Analysis Centre

Co-operation: Michał Naszkiewicz