War on retrogression in gender equality: the implications of Poland's systematic failure to protect fundamental human rights and the need for international intervention

• Author: Arianna Rappy
• Position: Brooklyn Law School, J.D., 2022
• Pages: 511-534

WAR ON RETROGRESSION IN GENDER EQUALITY: THE

IMPLICATIONS OF POLAND’S SYSTEMATIC FAILURE TO

PROTECT FUNDAMENTAL HUMAN RIGHTS AND THE NEED

FOR INTERNATIONAL INTERVENTION

ARIANNA RAPPY*

ABSTRACT

Violence against women is one of the most prevalent human rights violations

in the world, yet a significant portion of the population lacks legal protection.

Gender-based violence (GBV) is deeply rooted in structural inequalities and

power imbalances, endangering the health, safety, dignity, and autonomy of its

victims. Due to gaps in criminal law, victim blaming, gender stereotypes, and

State failure to adequately combat violence against women, the dangers women

face continue to worsen. Although GBV is a global epidemic, this Note specifi-

cally examines the status of women in Poland, a country with antiquated laws

and a commitment to undermine women’s individual rights. In July 2020,

Poland announced its intentions to begin the process of withdrawing from the

sole European treaty on violence against women. This Note argues that the

Polish government’s decision to leave this treaty, in addition to its continuous

failure to prevent and protect survivors from GBV, is a violation of its obliga-

tions under international human rights law. Absent international intervention,

survivors of domestic violence remain inadequately protected from their perpe-

trators under Polish law. Further, this Note proposes measures that interna-

tional organizations could take to strengthen and expand the scope of

international law to improve Poland’s compliance and preserve women’s

rights.

INTRODUCTION ............................................. 512

I. HISTORY OF GENDER-BASED DISCRIMINATION IN POLAND ........ 516

A. EVOLUTION OF THE COMMUNIST ERA: PRE- AND POST-WORLD

WAR II POLAND .................................... 516

B. THE COLLAPSE OF COMMUNISM AND THE RISE OF POLAND’S

POPULIST MOVEMENT ............................... 517

C. INTERNATIONAL AND REGIONAL EFFORTS TO PROTECT

WOMEN’S RIGHTS .................................. 520

* Brooklyn Law School, J.D., 2022. I am incredibly grateful to my family, friends, and especially my

partner, Walter Bonne

´, for their unconditional support and encouragement throughout law school and

beyond. I would also like to thank the Georgetown Journal of Gender and the Law editorial board,

especially Fulton Wald, Rosie Vacanti Gilroy, and Emma Holland, for all of their time, patience,

invaluable expertise, and tremendous efforts in bringing this piece to fruition. © 2022, Arianna Rappy.

511

II. IMPLICATIONS OF POLAND’S WITHDRAWAL FROM THE ISTANBUL

CONVENTION .......................................... 523

A. POLAND’S LEGAL COMPLIANCE WITH INTERNATIONAL AND

REGIONAL STANDARDS .............................. 525

1. Polish Law Never Fully Implemented the Standards of the

Istanbul Convention and Fails to Provide Effective

Remedies for Polish Women. . . . . . . . . . . . . . . . . . . . . . . 525

2. Poland’s Retrogressive Measures on Women’s Rights

Violate Its International and Regional Treaty Obligations

Beyond the Istanbul Convention . . . . . . . . . . . . . . . . . . . . 528

B. INTERNATIONAL RESPONSE TO POLAND’S WITHDRAWAL FROM

THE ISTANBUL CONVENTION .......................... 529

III. PROGRESSIVE REFORM: EXPANDING INTERNATIONAL STANDARDS TO

PROTECT WOMEN’S FUNDAMENTAL HUMAN RIGHTS ............ 531

A. EU ACCESSION TO THE ISTANBUL CONVENTION ........... 531

B. ESCALATION TO THE EUROPEAN COURT OF HUMAN RIGHTS:

INDIVIDUAL JUSTICE ................................. 533

CONCLUSION............................................... 534

INTRODUCTION

As violence against women surges on a global scale,

1

Phumzile Mlambo-Ngcuka, Violence Against Women and Girls: The Shadow Pandemic, U.N.

WOMEN (April 6, 2020), https://www.unwomen.org/en/news/stories/2020/4/statement-ed-phumzile-

violence-against-women-during-pandemic.

Poland is threatening to

reduce its international human rights commitments to combat gender-based dis-

crimination.

2

Turkey, Poland Consider Leaving Istanbul Convention on Violence Against Women, INT’L JUST.

RES. CTR. (Aug. 6, 2020), https://ijrcenter.org/2020/08/06/turkey-poland-consider-leaving-istanbul-

convention-on-violence-against-women/.

On July 27, 2020, the Polish Minister of Justice, Zbigniew Ziobro,

commenced Poland’s withdrawal from the Council of Europe Convention,

3

Weronika Galka, In Depth: Poland’s War on Women, CHERWELL (Sept. 1, 2020), https://cherwell.

org/2020/09/01/in-depth-polands-war-on-women/.

com-

monly known as the Istanbul Convention, where Poland had previously commit-

ted to combating violence against women and domestic violence.

4

The Istanbul Convention is a human rights treaty of the Council of Europe and the first legally

binding set of guidelines that forms “a comprehensive legal framework and approach to combat violence

against women” and is aimed at “preventing domestic violence, protecting victims, and prosecuting

accused offenders.” Jasmin Bauomy, Istanbul Convention: What is the Domestic Violence Treaty and

Has it Had an Impact?, EURONEWS (July 27, 2020), https://www.euronews.com/2020/07/27/istanbul-

convention-what-is-the-domestic-violence-treaty-and-has-it-had-an-impact; see Eur. Consult. Ass.,

Council of Europe Convention on Preventing and Combating Violence Against Women and Domestic

Violence, Doc. No. 210 (2011); see also Rory Sullivan, Poland’s Decision to Leave Treaty Aimed at

Preventing Violence Against Women Sparks Criticism, CNN (July 26, 2020), https://www.cnn.com/

2020/07/26/europe/poland-istanbul-convention-withdrawal-criticism-intl/index.html.

Outraged by

years of oppression and neglect of women’s rights, thousands of protesters took

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512 THE GEORGETOWN JOURNAL OF GENDER AND THE LAW [Vol. 23:511