THOSE WHOM WE DON’T SEE, BUT WE HEAR IN THE BACKGROUND

Article written by Nada Zohtan Karoa

As the world advances in every sphere, driven by unprecedented technological innovation, evolving global relations, and an increasingly complex legal framework shaped by social development, it is essential to reflect on the fundamental purpose of law. Law emerged to address fundamental human needs by replacing violence with reason, arbitrary force with justice, and chaos with order. This foundational principle subsequently paved the way for the development of legal frameworks designed to institutionalise the protection of human rights.

In this article, we will explore why, despite the remarkable advancements our society has achieved, numerous human rights violations remain unresolved, particularly those concerning bodily autonomy, which are closely associated with gender-based violence.

At first glance, gender-based violence may appear to be a primitive issue, incompatible with the progress of modern societies. In reality, however, it is deeply rooted in structural inequalities and raises fundamental questions about the effectiveness of legal systems and their ability to uphold the law equally for everyone. The persistence of this form of violence exposes a significant contradiction between the principles of justice and equality that modern legal frameworks seek to uphold and the lived experiences of those who remain inadequately protected.

To address this legal and social gap, this article will examine gender-based violence from both legal and sociological perspectives. Through a systematic analysis, it will explore the complexities of existing legal frameworks, focusing particularly on the fragmented protection afforded to victims. It will also investigate how women and girls, especially those belonging to marginalised communities, continue to face disproportionate barriers to justice and remain insufficiently protected by the very legal systems designed to safeguard their rights.

Whenever we think about human rights, our minds immediately go to wide-ranging tragedies such as war casualties, displaced refugees, and marginalized minorities. However, before analyzing the varied realities of Gender-Based Violence (GBV), we must establish a clear definition of what it entails. While intergovernmental organizations like UNHCR define GBV broadly as a severe human rights violation that threatens individual safety and well-being, the term suffers from a lack of doctrinal clarity. GBV is a vast concept encompassing any harmful act committed against a person’s will that is rooted in socially constructed gender differences, structural power imbalances, and systemic discrimination.

Crucially, a legally rigorous definition cannot be reduced solely to physical attacks; it must transcend physical and sexual acts to explicitly encompass psychological coercion and structural subjugation, including the systematic deprivation of civil, economic, and educational rights.

GBV is described by the UN Declaration on the Elimination of Violence against Women and the Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence, also known as the Istanbul Convention, which classifies these acts into the following categories: physical violence (including domestic assault, femicide, and honour-based killings)sexual violence (such as rape, trafficking, and sexual harassment); psychological and emotional violence (encompassing coercive control, threats, and stalking); economic subjugation (the deliberate denial of financial independence, property, and educational rights); harmful traditional practices (including Female Genital Mutilation, forced marriage, and violations of reproductive autonomy); and digital violence (such as cyber harassment, deepfakes, and doxing).

To have a clearer picture when the previous acts are executed as widespread or systematic policies, whether through state-promoted oppression or institutionalized marginalization, they transcend domestic law, undermining international human rights frameworks and claiming status as non-derogable breaches of peremptory norms, or jus cogens. The fundamental lacuna in public international law regarding the direct gravity consideration of GBV stems from a profound asymmetry between the International Law Commission’s (ILC) 2019 Draft Articles on Peremptory Norms of General International Law and the Rome Statute of the International Criminal Court (ICC).

In Chapter V and its official Annex, the ILC explicitly codifies eight non-exhaustive macro prohibitions, including torture, slavery, racial discrimination, and racial apartheid as independent, non-derogable peremptory norms that impose unconditional obligations on all States. Surprisingly, this list does not clearly include gender discrimination, gender based violence, or gender apartheid as independent, absolute international laws. Although Article 7 of the Rome Statute directly enumerates specific physical and sexual manifestations of GBV under Article 7(1)(g) (rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity) as well as Article 7(1)(f) (torture), which establish precise criminal liability for explicit physical atrocities, their narrow legal scope completely misses the broader, structural, and institutional exclusion of women that does not involve physical violence.

To address government-sanctioned gender oppression, such as complete prohibitions on women's education, employment, and freedom of movement, international law depends on indirect regulations. Since Article 7(1)(j) precisely restricts the crime of apartheid to the systemic domination of one "racial group" by another, systematic gender-based abuse is not included in this legal definition. Instead, legal experts are confronted with broader gender-related violence via Article 7(1)(h) (Persecution against an identifiable group based on gender) or Article 7(1)(k) (Other inhumane acts intentionally causing great suffering).

Gender-based violence is not only present in societies or states where there is systemic gender-based oppression, but it is also pervasive everywhere—even within developed democratic states characterized by constitutional guarantees, advanced legislation, codification, and legal equality. In these cases, as the UN has highlighted, gender-based violence remains a background reality that heavily impacts the most vulnerable populations, specifically migrant women and girls. This type of vulnerability occurs for several distinct reasons.

Democracy cannot truly exist when the most vulnerable still suffer in silence due to constant barriers and bureaucratic processes. Today, immigrant women bear the heaviest burden of gender-based violence in democratic societies. Trapped by language barriers, economic precarity, deeply rooted misogynistic cultural doctrines within the family nucleus, and institutions that fail to recognize the importance of addressing these issues, they are systemically pushed to the margins and isolated from support networks. According to United Nations reports, institutional failures; such as the lack of "firewalls" between healthcare or law enforcement and immigration authorities, effectively protect abusers by weaponizing the victim's fear of deportation.

To deconstruct this phenomenon, we must clarify how gender-based inequality manifests in the daily struggle of migrant women to advocate for themselves. While democratic host countries often offer integration systems, such as adult education or avenues for legal redress, a critical gap persists on both sides: the specific vulnerabilities of the immigrant experience and the institutional failure of the state to accommodate them. At the domestic level, women face severe household exploitation.

Bound by traditional expectations to handle all caregiving, they are systematically deprived of the right to seek independent employment.

Importantly, this marginalization is not merely internal. Host institutions are frequently prone to systemic discrimination, shutting out workers based on their geographic background or ethnicity. Within isolated domestic spheres, deep-seated cultural misogyny is often masked with religious justifications—a narrative that access to the internet and global digital education has repeatedly proven false. Ultimately, this silencing transcends both the home and the state bureaucracy; it heavily infects the labor market. Even when trying to achieve financial independence, migrant women face extreme precarity. This is starkly exemplified by seasonal migrant workers tied to restrictive work visas—such as those enduring the systemic labor and sexual abuses documented in industrial strawberry fields—where the fear of retaliation keeps their suffering entirely silenced.

The reality of the strawberry fields in Huelva, Spain, shows exactly how wealthy democracies fail to protect migrant workers. Through a migration agreement between Spain and Morocco, big agricultural companies targeted a specific group of people: poor, rural Moroccan mothers who could not speak Spanish. This was not an accident. Companies knew these mothers desperately needed to send money back to their children, making them easy to control and exploit.

These women were forced to live in isolated shacks owned by their bosses, where they suffered constant labor abuse and sexual harassment from supervisors. When a group of women finally broke their silence in 2018 to report the sexual abuse, the companies used the visa system against them. They tried to deport the women immediately to stop them from testifying in a court of law. The United Nations openly condemned this. This case proves a dark reality: when democratic countries lack strict labor laws and proper inspections, economic interests will always put corporate profit ahead of the safety and human rights of migrant women.

The Huelva case is a stark example of a deeper, harsh reality: beyond the poor labor conditions, wage theft, and exploitation, these corporations make a deliberate choice to treat migrant women as lesser human beings. From a human rights and equality perspective, this exposes a severe layer of systemic racism. Migrant women who arrive for work purposes are

subjected to intense social and institutional prejudice, treated as mere commodities rather than individuals with inherent dignity.

Yet, this reveals a massive political hypocrisy. The very political groups and industries that marginalize these women rely entirely on their labor to survive. History has repeatedly shown that national citizens refuse to perform these grueling agricultural jobs. Migrant women step in to fill these critical gaps in the workforce, keeping the country's economy afloat, only to be rewarded with racism, silencing, and a fundamental denial of their basic human rights. By weaponizing deportation against victims of sexual abuse, these industries openly demonstrate the chilling reality that, even within developed democracies, corporate profit is still valued over human life.

The real paradox is that developed democracies already possess the infrastructure to stop these violations. The legal pathways exist. From courts of first instance and the Audiencia Provincial to the High Courts of Justice, and up to the constitutional level through the recurso de amparo, the machinery of justice is already built. Furthermore, beyond domestic

law, the European Union offers some of the most robust human rights and fundamental rights mechanisms in the world.

The issue, therefore, is not a lack of laws, but a lack of political and social will. The system fails because institutions still operate under the biased assumption that migrant women are somehow less deserving of these protections. To truly achieve equality, we do not need to reinvent the law; we need to reinforce the existing system to ensure it leaves no one behind.

Democratic societies must internalize a fundamental truth: a country's commitment to human rights is not measured by how it protects its most privileged citizens, but by how it shields and empowers its most vulnerable.

This inequality highlights a much harder, deeper reality. While navigating systemic gender inequality is already an immense challenge for any woman, this hardship mutates into a double dimension of difficulty and vulnerability when that woman is also an immigrant or an asylum seeker. For them, the intersection of gender bias and legal exclusion creates an almost inescapable trap.

Ultimately, a country cannot truly be considered fully developed if a part of its population, whether migrants or nationals, is not included in individual, juridical, and democratic participation. It is a profound moral failure when a nation’s economy relies entirely on the labor of those whom we don’t see, but hear in the background.